R. v. Kelly

R. v. Kelly Collection Decisions of the Court of Appeal Date 2017-11-29 Neutral citation 2017 ONCA 920 Docket numbers C60668 Judges Strathy, George R.; Doherty, David H.; McCombs, John David Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Kelly, 2017 ONCA 920 DATED: 20171129 DOCKET: C60668 Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc) BETWEEN Her Majesty the Queen Appellant and Kmar Kelly Respondent Matthew Asma, for the appellant Delmar Doucette, for the respondent Heard: November 7, 2017 On appeal from the directed verdict of acquittal entered by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a jury, on June 2, 2015. Crown appeal - appeal from directed verdict of not guilty in a jury trial - charge of manslaughter as party to a robbery Doherty J.A.: I overview [1] The respondent was tried by a court composed of a judge and jury on a charge of manslaughter. At the close of the Crown’s case, counsel for the respondent successfully brought a directed verdict application. The trial judge instructed the jury to acquit. The Crown appeals from that acquittal. [2] I would allow the appeal and direct a new trial. II facts [3] On April 16, 2011, two men with guns attempted to rob an illegal poker tournament operating out of a banquet hall. A scuffle between one of the robbers and the organizer of the tournament ensued at the entrance to the banquet hall and the robber fired his gun. The bullet hit the ceiling. The other robber opened fire. A man who had come to the aid of the organizer was shot and killed. The robber who had been struggling with the organizer was accidentally shot in the same volley. Both robbers fled on foot. [4] Mark Cousins, a truck driver, saw two men running from the banquet hall. One was carrying a gun. He watched them get into the front seats of a dark-coloured Honda. A short time later, while stopped at a red light, he saw the Honda again. He could see into the vehicle from his vantage point in the driver’s seat of the truck. According to Mr. Cousins, there were only two people in the car and both were in the front seats. [5] By the end of the Crown’s case, it was clear that the two men Cousins saw were the robbers who had fled the banquet hall and that the car he saw them in was a Honda Civic that had been rented by the respondent. [6] Mr. Cousins’ evidence was important because it was the Crown’s theory that the respondent was the getaway driver of the vehicle. On Cousins’ evidence, there was no getaway driver, only the two robbers. [7] About 25 minutes after the robbers fled the banquet hall, one of them showed up at a hospital seeking treatment for a gunshot wound. The hospital was a 20- to 25-minute drive from the banquet hall. [8] Forensic examination of the Civic revealed blood from the wounded robber soaked into the back cushion on the back seat on the driver’s side of the vehicle. No blood was found anywhere else in the vehicle. [9] There was a great deal of evidence about the use and location of various cell phones at different times. One cell phone (#8019) was significant to the Crown’s case against the respondent. The evidence connecting that phone to the robbery included the following: · The #8019 phone was pinging off the tower nearest the banquet hall the day before the robbery when, on the evidence, some of the persons involved in the robbery plot were scouting out the scene; · The “inside man” involved in the robbery, who was in the poker tournament, was in constant communication with the #8019 phone in the minutes leading up to the robbery; · The #8019 phone was pinging off the closest tower to the banquet hall in the hour before the robbery and at the time of the robbery; and · The #8019 phone was pinging off the tower closest to the hospital shortly after the wounded robber arrived at the hospital to get medical attention for his bullet wound. [10] The evidence connecting the respondent to the #8019 phone consisted of the following: · The respondent provided the #8019 number as his contact information to a man associated with the other robbery participants three days after the robbery; · 10 days after the robbery, the respondent was driving in the Civic in Hamilton, Ontario and the #8019 phone was pinging off a tower in that area; and · One of the robbers showed #8019 as belonging to “K” in the contact list on his phone. [11] The respondent was also connected to the Civic used by the robbers to flee the scene. He rented the car a few days before the robbery and kept and used it until April 29, some two weeks after the robbery. III arguments and ruling at trial [12] On the directed verdict motion, the defence argued that the Crown had from the outset alleged that the respondent was the getaway driver. Counsel submitted that the Crown had taken that position knowing full well the evidence to be adduced, including the evidence from Mr. Cousins. The defence contended that the Crown could not change its theory of liability at the end of the Crown’s case. Accordingly, unless the Crown could show that a reasonable jury, properly instructed, could find that the respondent was the driver of the getaway car, the respondent was entitled to a directed verdict. The defence argued that Mr. Cousins’ evidence precluded any finding that the respondent was driving the getaway car. [13] The defence also argued that even if the Crown was not limited to the claim that the respondent was the getaway driver, there was no basis in the evidence upon which a reasonable jury could convict the respondent of manslaughter on any theory of liability. The defence pointed out that there was no direct evidence as to who was using the #8019 phone on the day of the robbery. [14] The Crown argued that the trial judge was obligated to take the evidence at its highest from the Crown’s perspective in deciding whether to direct a verdict of acquittal. The Crown further submitted that the trial judge was not required to accept Mr. Cousins’ evidence, but was required to consider the entirety of the evidence, including Mr. Cousins’ testimony, in deciding what inferences could reasonably be drawn. On the Crown’s argument, Mr. Cousins’ evidence, which the jury may or may not accept, did not preclude the jury from drawing the inferences necessary for a finding of guilt. The Crown further argued that it was not limited to the “getaway driver” theory, but could rely on all legal bases for liability available on the evidence. It argued that even if the respondent was not the getaway driver, a route to conviction was available on the theory that the respondent, through the #8019 phone, was acting as the conduit of information from the inside man to the robbers. [15] The Crown acknowledged that it was its theory that the respondent was the driver, but argued: [O]ur case, the factual basis has never changed. Whether we highlighted the fact that Mr. Kelly is the getaway driver or not, we’ve always said he was the getaway driver. We’ve always said he was in communication with that 8019 number from the scene with the inside man. This has not changed. This is - there’s not some new approach or new theory, if you want to call it that. It’s simply the application of the law and what makes out manslaughter out of the same set of facts … Your Honour has to tell the jury any mode of liability that arises out of the facts. And I don’t see any issue of fairness that’s arising here. [16] In granting the motion for a directed verdict, the trial judge arrived at two important conclusions. First, he held that in determining whether to direct a verdict of acquittal, he was obligated to accept the evidence of Mr. Cousins as “credible and reliable” and determine what inferences could be drawn in light of the acceptance of Mr. Cousins’ evidence (para. 56). [17] Second, the trial judge held that as the Crown had maintained throughout its case that the respondent was the getaway driver, fairness to the respondent dictated that the Crown was limited to that factual theory of liability in seeking to establish the respondent’s culpability for manslaughter (paras. 73-81). The trial judge went on to hold that, given the factual theory the Crown advanced, “the Crown is limited to proving the guilt of Mr. Kelly as an aiding party, as the getaway driver, in accordance with section 21(1)(b) of the Criminal Code” (para. 83). [18] With respect, the trial judge erred in both conclusions outlined above. IV analysis A: The Test on Motion for a Directed Verdict [19] When the defence moves for a directed verdict of acquittal at the end of the Crown’s case, the trial judge must decide whether there is a basis in the evidence upon which a reasonable jury, properly instructed, could convict. In performing that task, the trial judge does not make findings of fact or credibility, but considers whether a reasonable jury, properly instructed, could, on the entirety of the evidence, favourable and unfavourable to the accused, conclude that the Crown has established guilt. The trial judge must view the evidence in the reasonable light that is the most favourable to the Crown: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21, 29-32; R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at paras. 6-9. [20] The trial judge erred in approaching his task by asking what inferences could be drawn on the assumption that the jury accepted Mr. Cousins’ evidence as accurate. He should have asked whether having regard to all of the evidence, including Mr. Cousins’ evidence, there was a legal basis upon which a reasonable jury could find the respondent guilty of manslaughter. This analysis required a consideration of the possibilities that the jury, having regard to the blood in the back seat of the Civic, would not accept Mr. Cousins’ evidence as accurate, or that despite Mr. Cousins’ evidence, would conclude that the respondent was guilty of manslaughter. [21] The trial judge’s error as to the legal test to be applied on a motion for a directed verdict does not mean that this appeal must succeed. The Crown must show that on an application of the proper legal test for a directed verdict, the trial judge should not have directed a verdict of acquittal. To determine whether a directed verdict was warranted, this court must consider whether, on a proper application of the law applicable to party liability to the evidence, a reasonable jury could convict the respondent. This court must also consider the respondent’s argument that in the circumstances of this case, the Crown was limited to proving the respondent’s culpability by establishing that he was the “getaway driver”. B: On What Legal Basis Could the Respondent be Found to be a Party to the Offence of Manslaughter? [22] In its argument on the directed verdict application, the trial Crown relied on s. 21(1)(b) of the Criminal Code, the aiding provision, and s. 21(2), the common purpose section. The trial judge held that as the Crown was restricted to arguing that the respondent was the getaway driver, it followed that the respondent could only be liable as an aider under s. 21(1)(b). [23] With respect, even if the trial judge was right in restricting the Crown to the argument that the respondent was the getaway driver, his potential liability for manslaughter still flowed exclusively from s. 21(2) of the Criminal Code. [24] As my colleague, Watt J.A., has explained with admirable clarity in R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 39-43, s. 21(1) refers to parties who participate in the offence charged as perpetrators, aiders, or abettors. To aid in the commission of an offence, an accused must do something “for the purpose” of aiding another in the commission of that offence. Liability under s. 21(2) rests on an entirely different basis. Section 21(2) imposes party liability for offences that are incidental to the carrying out of a common unlawful design. Liability under s. 21(2) requires the Crown to prove that an accused formed an intention with others to engage in an unlawful purpose and that one or more of the others, in carrying out that unlawful purpose, committed a different offence that the accused knew or ought to have known was a probable consequence of carrying out the common unlawful purpose. [25] On the Crown’s case, the respondent was an aider in the robbery and a party to the common unlawful purpose of committing a robbery. There was no evidence that he did anything for the purpose of aiding the robbers in harming any of the victims of the robbery. The respondent’s role in planning or executing the robbery could not make him an aider in the homicide that occurred during the robbery. [26] I think this was quintessentially a case for the application of s. 21(2). The respondent, having allegedly agreed to the commission of one crime, the robbery, was alleged by the Crown to be responsible for the commission of a second crime committed by one of the parties to the robbery in the course of carrying out the common unlawful purpose. Section 21(2) addresses exactly that kind of criminal culpability. [27] The Crown alleged that the respondent and others, including the two robbers, had entered into a common design to rob people attending the poker tournament (the common unlawful purpose). The Crown further alleged that one of the robbers, in the course of carrying out that common unlawful purpose, had shot and killed the victim. If the Crown could prove that the respondent, as a party to the common unlawful purpose to rob, knew or ought to have known that one of the robbers would probably cause harm of more than a trivial nature to someone in the course of committing the robbery, the respondent was guilty of manslaughter pursuant to s. 21(2), if that harm actually caused death: see R. v. Jackson, [1993] 4 S.C.R. 573, at 586-87; R. v. Modeste, 2015 ONCA 398, 326 C.C.C. (3d) 93, per Strathy C.J.O., in dissent on another issue, at para. 103. The respondent’s potential liability under s. 21(2) did not turn on the specific role he played in the robbery plan. [28] Setting aside for the moment the trial judge’s finding that the Crown could only rely on the allegation that the respondent was the getaway driver, there was ample evidence upon which a reasonable jury could find that the respondent formed a common intention to rob the poker tournament. The evidence connecting the #8019 cell phone to the robbery and to the respondent, combined with the evidence connecting the respondent to the getaway car, provided a basis upon which a reasonable jury could infer that he was a party to the plan to rob the poker tournament. [29] Given the nature of the robbery planned, and the number of people in attendance at the tournament, it would be reasonable for a jury to infer that the respondent knew that the robbers would be armed and prepared to overcome resistance in effecting the robbery. It flows from that inference that the jury could infer that the respondent knew or ought to have known that it was probable that one of the robbers would cause non-trivial harm to someone in the course of committing the robbery. C: Did the Trial Judge Err in Holding that the Crown was Bound by its Theory that the Respondent was the “Getaway Driver”? [30] The Crown is not bound to prove its case according to any factual or legal theory. Liability for an offence charged is determined by an application of the law relating to parties to an offence, found primarily in s. 21 of the Criminal Code, to the facts as found by the jury or trial judge. Culpability depends on the evidence and the legal principles applicable to that evidence. The Crown is entitled to rely on any route to liability available on the evidence: see R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 19; R. v. Khawaja, 2010 ONCA 862, 273 C.C.C. (3d) 415, at paras. 143-45, approved without reference to this point, 2012 SCC 69, [2012] 3 S.C.R. 555; R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.), at 41-42; R. v. Pawluk, 2017 ONCA 863, at para. 29. [31] The defence must be taken to know that liability depends on an application of the applicable legal principles to the evidence. There is nothing per se unfair in the Crown relying on different or alternate theories of liability, as long as each is rooted in the evidence. The argument that the Crown should be bound by the particular theory it advances is essentially an argument in favour of a formalistic pleadings-type approach to criminal justice, or perhaps a plea for the return of the now discredited “sporting theory” of criminal justice. The contemporary approach favours the adjudication of criminal allegations on their merits. [32] The general rule that the Crown can rely on any legal basis of culpability available on the evidence is circumscribed by the overriding need to ensure trial fairness and, specifically, the accused’s right to make full answer and defence: Ranger, at para. 133. There can be circumstances in which the defence, based on particulars provided by the Crown, specific representations made by the Crown, or the overall conduct of the trial, is justifiably led to believe that the accused’s potential liability is limited to a specific factual or legal theory and conducts the defence accordingly. In those circumstances, the defence may be able to successfully argue that any departure from the specific basis of liability put forward, especially after the evidence is complete, would unfairly prejudice the accused’s ability to make full answer and defence: Pawluk, at para. 30. [33] Ranger provides an example of how a very late change in the nature of the case the accused had to meet could seriously prejudice the defence. In Ranger, the defence had every reason to believe, right up to the point of the jury instruction, that the jury would be told that liability depended on the Crown proving that the accused was in the house when the murders occurred. Both the Crown and the trial judge had made comments to the effect that liability depended on the Crown proving that fact. However, the trial judge, in his instructions to the jury, and on his own initiative, put a second and different theory of liability to the jury that did not require that the jury find that the accused was in the house. This court concluded that, having regard to the conduct of the trial, the introduction of this new theory of liability in the trial judge’s instructions compromised the defence ability to meet the case put against it and resulted in a miscarriage of justice. [34] In ruling that it would be unfair to allow the Crown to advance a theory other than the “getaway driver” theory, the trial judge held that the Crown could alter its theory only if it could show that the evidence at trial “had unfolded in a manner not anticipated by the Crown” (para. 78). With respect, this puts the onus in the wrong place. As the authorities outlined above at para. 30 indicate, the Crown is entitled to rely on any basis of liability that is available on the evidence. It is incumbent on the defence to demonstrate prejudice, justifying the limiting of the Crown’s case to a particular theory. [35] The trial judge also erred in holding that the defence was entitled to expect that the potential liability of the accused would be limited to the specific factual theory advanced by the Crown. The Crown does not, by advancing a particular theory, impliedly limit its case to that theory. If it is important to the defence that the Crown’s case be limited to the theory advanced by the Crown, and if the defence intends to rely on that limitation in shaping the defence, the defence must take steps to properly limit the Crown’s case. The defence can request formal particulars, or at least seek a clear and unqualified statement from the Crown that it is relying exclusively on the factual basis advanced in its theory of the case. The defence cannot simply sit back upon hearing the theory of the Crown, and at the end of the Crown’s case submit that reliance on any other theory of liability automatically works an unfairness on the accused. That argument is untenable in the face of the well-developed line of authorities referred to at para. 30. [36] The trial judge did not point to any specific impairment of the defence ability to make full answer and defence flowing from the Crown’s submission that the respondent could be liable even if he was not the getaway driver. On appeal, counsel suggested that the Crown had depended on its claim that the respondent was the getaway driver in “the resolution of certain legal issues”. On my reading of the transcript, the Crown did no more than allude to its factual theory of the case in making those arguments. The Crown’s legal position did not depend on the respondent playing the exclusive role of the getaway driver in the robbery. [37] I am also not persuaded by counsel’s arguments that the defence ability to make full answer and defence was prejudiced by certain tactical decisions made by the defence in reliance on the theory of the case that the Crown advanced. First of all, the defence was not entitled in law to assume that the Crown’s case was limited to the factual theory it had advanced. Second, if the defence left some stone unturned because of its erroneous assumption that the Crown was limited to the “getaway driver” theory, the defence could have applied for an order reopening the Crown’s case and allowing the defence to conduct additional cross-examination, or make further legal submissions on issues that had arisen during the Crown’s case. [38] Finally, this is not a case like J.S.R. v. The Queen (2008), 237 C.C.C. (3d) 326 (Ont. Sup. Ct.), an authority relied on by the trial judge. In that case, the Crown attempted to resile from an agreement it had made with the defence. Pursuant to that agreement, the Crown had undertaken to advance a certain factual position and the defence had agreed that it would not bring an abuse of process application. There was no agreement here. The Crown announced its factual position in its opening to the jury and maintained that position. The defence, as it was entitled to do, said nothing about its position. In that situation, the general rule applies. Liability turns on an application of the party liability provisions in the Criminal Code to the evidence, and not on the factual theory articulated by the Crown. V conclusion [39] The trial judge applied the wrong test in directing a verdict of acquittal. He also erred in holding that the Crown was limited to the factual theory it had advanced during the case. The Crown was entitled to rely on any theory of liability available on the evidence, absent a demonstration by the accused of prejudice to his ability to make full answer and defence. The appellant did not demonstrate any prejudice, or at least any prejudice that could not be fully cured by requiring the Crown to reopen its case so that the defence could, if necessary, address the basis for liability argued by the Crown on the motion for a directed verdict. On the evidence, there was a basis upon which a reasonable jury, properly instructed, could convict the respondent of manslaughter by the operation of s. 21(2). [40] I would quash the acquittal and direct a new trial on the charge of manslaughter. [41] Counsel are agreed that the respondent’s attendance at the new trial can be arranged through the service of a summons on counsel for the respondent. There is no need at this time for a warrant. Should circumstances change and the issuance of a warrant becomes necessary, the Crown may apply for a warrant. Released: “GS” “NOV 29 2017” “Doherty J.A.” “I agree G.R. Strathy C.J.O.” “I agree D. McCombs J. (ad hoc)