COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Patel, 2017 ONCA 702

DATE: 20170912

DOCKET: C58973

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Aasif Patel

Respondent

Lisa Joyal, for the appellant

Nader Hasan and Stephen Aylward, for the respondent

Heard: December 9, 2016

On appeal from the acquittal entered by Justice W. Brian
    Trafford of the Superior Court of Justice, dated May 29, 2014, sitting with a
    jury.

van Rensburg J.A.:

I.

Overview

[1]

This is a Crown appeal of an acquittal.

[2]

Aasif Patel, his co-accused Wariskhan Pathan,
    and Suhail Shaikh were involved in a dispute in a stairwell of an apartment
    building with Lodian Samuels, a resident of the building. The three left the
    building after the confrontation, returning around 20 minutes later. Within one
    minute of their return, Lorenzo Martinez, a close friend of Samuels, was shot
    dead by Pathan in the front lobby of the building. Pathan and Patel were charged
    with first degree murder.

[3]

The Crowns primary theory was that Pathan, as
    principal, and Patel, as aider and abettor, carried out a planned and
    deliberate murder of Martinez  they returned to the building to kill Samuels
    and any of his associates, and they recognized Martinez as one of Samuels
    associates. The trial judge instructed the jury on first degree murder, second
    degree murder and manslaughter, with Pathan as principal, and Patel as an aider
    or abettor. However, the trial judge refused to put to the jury an alternative
    theory in support of a verdict of second degree murder or manslaughter for
    Patel: that he and Pathan were engaged in some other common unlawful purpose at
    the time Pathan shot and killed Martinez (namely a plan to assault Samuels and
    his associates with guns); that they did not recognize Martinez as an associate
    of Samuels; but that a killing, or an inherently dangerous act creating a risk
    of bodily harm, was a known probable outcome of carrying out the common purpose.
    After an eight week jury trial, Pathan was convicted of second degree murder.
    Patel was acquitted.

[4]

The Crown argues that there were errors in the jury
    charge that warrant a new trial for Patel on second degree murder and the
    included offence of manslaughter. First, the Crown asserts that the trial judge
    erred in refusing to instruct the jury on common unlawful purpose liability
    under s. 21(2) of the
Criminal Code.
The Crown
    also contends that the trial judge erred in his instructions respecting Patels
    liability as an aider and abettor of Pathan under s. 21(1) of the
Criminal
    Code
in telling the jury that Patel must have caused Martinezs
    death and that they could only find Patel guilty of the same offence as Pathan.

[5]

For the reasons that follow, I would dismiss the
    appeal.

[6]

In respect of Patels liability as a party under
    s. 21(2), the Crown advanced different theories at trial and on appeal as to
    how common unlawful purpose liability could apply.

[7]

At trial, Crown counsel requested that the trial
    judge instruct the jury on s. 21(2), as he said, to fill the gap in the event
    the jury failed to find that Pathan and Patel planned to kill Samuels and his
    associates and recognized Martinez as one of Samuels associates. As I have
    said, according to the Crowns trial theory, Patel could have been found liable
    for second murder or manslaughter if the jury found that he and Pathan returned
    to the building to assault Samuels and his associates with guns but did not
    recognize Martinez as one of Samuels associates. The Crown asserted that Patel
    would be liable for Pathans killing of a stranger, Martinez, during an
    unexpected encounter, because the two were engaged in another unlawful plan
    namely, a plan to assault Samuels or his associates with guns.

[8]

The trial judge refused to instruct the jury on
    common unlawful purpose liability for Patel because he concluded, among other
    things, that there was no air of reality to the Crowns theory of s. 21(2)
    liability for Patel.

[9]

On appeal, the Crown did not ask this court to
    find that the trial judge should have instructed the jury on liability under s.
    21(2) on the basis the Crown advanced at trial. Indeed, leaving aside the air
    of reality issue, I am skeptical that s. 21(2) could extend liability to Patel
    where Pathan killed a stranger while the two were en route to commit a
    different crime. However, it is unnecessary that I decide this issue as the
    Crown did not rely on its trial theory of liability under s. 21(2) on appeal.

[10]

Rather, the Crown advanced a different scenario
    for the operation of s. 21(2)  premised on the jury accepting that Pathan and
    Patel planned to assault Samuels and anyone associated with him with guns, that
    they assaulted Martinez because they recognized him as an associate of Samuels,
    and that they were engaged in their original plan when Pathan shot Martinez.

[11]

The respondent submits there is no air of
    reality to this new alternative theory.

[12]

However, even assuming an air of reality, to
    allow the appeal on this basis would require this court to accept a version of
    the facts and argument that were not advanced at trial. The Crowns argument on
    appeal reflects a material change in the Crowns position between trial and
    appeal. In these circumstances it would be unfair to Patel and offend double
    jeopardy principles to allow the appeal and to direct a new trial on this
    basis.

[13]

In any event, in relation to second degree
    murder, I am not satisfied that the result would have been different had the
    trial judge instructed the jury under s. 21(2) in the circumstances of this
    case. The evidence and inferences on which the Crown relies to support its
    theory of liability for second degree murder under s. 21(2) on appeal are
    substantially the same as the evidence and inferences it relied on at trial to
    support liability for second degree murder under s. 21(1). In the circumstances
    of this case, I conclude there is no practical difference between the
mens
    rea
requirements under ss. 21(1) and 21(2) that could
    have led to a different verdict for second degree murder.

[14]

As for the alleged errors with respect to the
    instructions on s. 21(1), when the instructions are considered as a whole, the
    jury would not have been misled as to the elements required to find Patel
    guilty as a party to an offence, and it was clear that the liability of each
    accused was to be separately determined and that Patel and Pathan could be
    found guilty of different offences.

II.

Evidence
    at Trial

[15]

The fatal shooting of Lorenzo Martinez took place on February 11, 2011
    in the front lobby of an apartment building at 70 Stevenvale Drive in Toronto.

[16]

Samuels testified that Martinez had been at Samuels apartment to hang out,
    something he did each day, and that they would usually smoke weed together. After
    Martinez arrived, Samuels left the apartment to speak with a friend in the
    lobby. Samuels smelled marijuana in the hallway outside of his apartment and,
    on entering the south stairwell, he saw Patel, Pathan, and Shaikh smoking. He
    knew Patel by his nickname Iceman, and had seen Pathan around the
    neighbourhood. Samuels testified that he confronted Patel and blamed him for
    being the reason the police were coming to the building. He knew that the three
    men did not live in the building, so he wanted to know what they were doing in
    his building and why they were smoking marijuana there. According to Samuels, Patel
    responded aggressively, and implied that some people were watching his
    apartment. To Samuels, Patel was claiming he knew something about him and this
    annoyed him. Pathan did not participate in the disagreement.

[17]

Samuels returned to his apartment and told Martinez what happened.
    Martinez got upset and threatened to punch in the face whoever it was who confronted
    Samuels. Samuels then went to the lobby to speak to his other friend, using the
    south stairwell. Samuels noticed the three had left the stairwell. On his way
    back to his apartment, Samuels encountered Martinez and they returned together.
    From his balcony, Samuels saw Patel, Pathan and Shaikh leaving a nearby
    apartment building, 45 Greencrest Circuit, and approaching the north or main
    entrance of his building. He pointed them out to Martinez. Samuels told
    Martinez not to leave the apartment and went to the bathroom to get changed.
    When he came out of the bathroom, Martinez was gone.

[18]

Both accused testified at trial. Patel testified that he had been
    visiting a friends apartment at 70 Stevenvale on the night of February 11,
    2011. He, Pathan and Shaikh decided to smoke kush, a potent form of marijuana, and
    went to the stairwell, where they were confronted by Samuels. Patel did not
    think the confrontation was a big deal, although he knew they were in the wrong
    by smoking in the stairwell and wanted to avoid further trouble. Patel, Pathan
    and Shaikh left the building, without going back to their friends apartment to
    retrieve their belongings, and went to 45 Greencrest. About 20 minutes later,
    they returned to 70 Stevenvale to retrieve their coats, cell phones and keys from
    their friends apartment. According to Patel, they entered through the main
    door on the north side of the building to avoid running into Samuels in the
    south stairway. This was largely consistent with the account provided by Pathan
    in his trial testimony.

[19]

What occurred next is captured on CCTV security videos. A DVD of the composite
    security video footage was entered as an exhibit at trial, as was an enhanced
    version of the security videos introduced by a defence expert witness. The
    parties agreed that the security videos were fair and accurate representations
    of their content, subject to limitations inherent in the video recording
    technology. The interpretation of what was depicted in the security videos in
    the 60 seconds between 19:44:27, when the three entered the building and 19:45:27,
    when Martinez was shot, was the centrepiece of the trial.

[20]

The security videos showed Patel, Pathan and Shaikh entering the outer
    lobby of the building. Patel attempted to open the door to the inner lobby by pulling
    it firmly with two hands, but was unable to open it. Patel gestured to Shaikh,
    who left. Both Pathan and Patel testified that Shaikh was dispatched to the
    south entrance of the building, which was usually unlocked, to let Patel and
    Pathan in from inside the building. Another security camera recorded Shaikh
    entering the building through the south entrance.

[21]

While Patel and Pathan waited in the outer lobby, Martinez, approaching
    from inside the building, walked to the door separating the outer and inner
    lobby, opened it and admitted Patel. Patel entered, moved toward the elevator
    past Martinez and turned around, as Martinez closed the door, keeping Pathan in
    the outer lobby area. Patel reached into his pants or waistband and drew what
    he testified was an inoperable pellet gun. Patel and Martinez then appeared to
    engage in a verbal and physical altercation. Patel testified that Martinez
    said, Do you think youre tough? The video depicts Patel and Martinez struggling
    over control of Patels gun.

[22]

Seconds after Patel reached for his gun, Pathan drew his gun, placing
    both hands on the weapon. As Martinez and Patel were engaged in the physical
    altercation, Pathan raised his gun and pointed it at the two men in the inner
    lobby. Patel then maneuvered around Martinez, and opened the glass door dividing
    the outer and inner lobby. Pathan shot Martinez once through the glass door.
    Martinez fell face-first on the floor separating the outer and inner lobby. Pathan
    fired two more times at Martinez after he was on the ground. Patel and Pathan
    then ran off.

[23]

Patel testified that the kush he had smoked made him feel paranoid and
    anxious, and that he was panicked during the encounter with Martinez, who was a
    stranger to him. He had said thank you to Martinez when Martinez opened the
    door for him, but was surprised when Martinez shut the door on Pathan. Patel
    admitted to drawing his pellet gun but denied pointing it at Martinez. He was
    frightened and was trying to get around Martinez so that he could get out of
    the building. He testified that he was not good friends with Pathan, he did not
    know that Pathan had a firearm, he did not see Pathan draw his gun, and he did
    not expect Pathan to shoot Martinez.

[24]

Pathan testified that he was a cocaine dealer and routinely armed with a
    loaded firearm, ready to fire. He asserted that, although Patel had seen
    Pathans gun one or two times before, no one knew Pathan had a gun on him that
    day. Patel was one of his closest friends, and he had seen Patel with a real
    gun in the past. However, Pathan did not know that Patel had a gun in his possession
    that evening until Patel pulled it out in the lobby. He admitted that he
    checked his gun before seeing Martinez, but said he did so to keep it from
    falling down his pants. When Patel and Martinez began struggling, and he saw
    Martinez try to take Patels gun, Pathan pulled out his own gun to protect
    himself and Pathan, and it went off by accident. He claimed to have no memory
    of firing the second and third shots.

[25]

There was no real issue at trial about the identity of the person who
    fired the fatal shot. Although the Crown initially argued that Patel may have
    discharged his weapon, the Crown conceded that, based on the ballistics
    evidence, post-mortem evidence and security videos, it was extremely unlikely
    that more than three shots were fired. What was left with the jury was that no
    more than three shots were fired, all of which came from Pathans gun and,
    accordingly, that Pathan fired the fatal shot. The first shot entered
    Martinezs neck, lodging in his spine, and one of the other two shots was to
    Martinezs back, piercing his heart.

[26]

The Crown asserted that Pathan and Patel committed a planned and
    deliberate murder of Martinez. Angered by their earlier confrontation with
    Samuels, they returned to the building planning to kill Samuels or anyone
    associated with him who got in their way.

[27]

A factual issue at trial was whether Pathan and Patel recognized
    Martinez as one of Samuels associates or whether he was a stranger to them. Samuels
    testified that he pointed out Patel, Pathan and Shaikh to Martinez from the
    balcony as the three returned to the building and, when he did so, Martinez
    gave no indication that he had seen them before. Patel and Pathan denied that
    they recognized or knew Martinez, and testified that they did not know he was
    connected to Samuels. There was only indirect evidence suggesting they may have
    seen Martinez in Samuels company.

[28]

The Crown argued that the events captured by the security cameras supported
    its theory of a planned and deliberate murder  the shooting was unprovoked,
    and occurred within seconds of Martinez appearing in the lobby. The Crown asserted
    that the actions of Patel and Pathan were synchronized, that Patel reached for
    his weapon within 2.5 seconds of encountering Martinez with Pathan reaching for
    his gun only 2.5 seconds after Patel, and that Patel maneuvered Martinez into
    Pathans line of fire. The very speed of events, the Crown urged, suggested
    that Patel and Pathan knew Martinez was connected to Samuels and that they were
    carrying out a plan to murder Samuels or one of his associates. The Crown
    argued that this conclusion was also supported by Pathans gun being loaded and
    ready to fire before they entered the lobby. While they were smoking kush
    earlier, their actions showed that their ability to form the requisite intent
    was not impaired. The killing was not an accident nor was it an act of
    self-defence.

[29]

The Crown argued that, if the two were not guilty of first degree
    murder, then they were guilty of second degree murder or manslaughter.

[30]

The trial judge dismissed a defence motion for a directed verdict of
    acquittal on first degree murder brought at the close of the Crowns case. He also
    refused the Crowns request to instruct the jury that Patel could be found
    guilty under s. 21(2) based on a common unlawful purpose with Pathan to
    threaten, rob or assault Samuels or his associates. The jury was instructed
    that Patels liability was under s. 21(1) as having aided or abetted Pathan in
    Martinezs killing. It is from Patels acquittal that the Crown appeals.

III.

Grounds of Appeal

[31]

A
jury verdict of acquittal is entitled to
    substantial deference and may only be set aside where there is an error or are errors,
    considered cumulatively, that might reasonably and in the concrete reality of
    the case have had a material bearing on the acquittal:
R. v.
    Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14;
R. v. Spackman
, 2012 ONCA 905, 295 C.C.C. (3d)
    177, at para. 250. The appeal should only be allowed if the Crown satisfies the
    court that the verdict would not necessarily have been the same if the trial
    judge had properly directed the jury:
R. v. Vézeau
, [1977] 2 S.C.R. 277, at pp. 291-292. The Crown says there were
    such errors here and that it has met the
Vézeau
test.

[32]

As its first ground of appeal, the Crown
    contends that the trial judge erred in refusing to instruct the jury under s.
    21(2) when there was an air of reality to this basis of liability for Patel
    for second degree murder or manslaughter. Second, the Crown says the trial
    judge made two significant errors in his jury instruction under s. 21(1). I
    will deal with these issues in turn.

IV.

Analysis

A.

Ground 1: Did the Trial Judge Err in Refusing to Instruct the Jury
    under Section 21(2) of the
Criminal Code
?

[33]

The Crown contends that the trial judge erred in
    law in refusing to instruct the jury with respect to Patels potential liability
    as a party to the killing of Martinez under
the
    doctrine of common unlawful purpose, pursuant to
s.
    21(2) of the
Criminal Code
.

[34]

As I have explained,
the Crown advanced a
    different theory on appeal than at trial for asserting that s. 21(2) should
    have been left with the jury. In my view, the Crowns argument and the
    inferences from the evidence relied on in the appeal reflect a material change
    in the Crowns position between trial and appeal. In these circumstances it
    would be unfair to Patel and offend double jeopardy principles to allow the
    appeal and to direct a new trial on this basis.

[35]

In any event, in relation to second degree
    murder, I am not satisfied that the result would have been different had the
    trial judge instructed the jury under s. 21(2).

[36]

In
addressing this ground of appeal I will first
    set out the relevant legal principles with respect to s. 21(2). I will then
    outline the Crowns argument for leaving this ground of liability with the jury
    at trial and the trial judges reasons for refusing to do so. Next, I will
    address the Crowns argument on appeal and explain why I would not give effect
    to it.

(1)

The Legal Principles: Section 21(2)

[37]

Section 21(2) of the
Criminal Code
provides for the
    liability of a participant in a common unlawful purpose for an incidental crime
    committed by another participant. Section 2
1(2) states:

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 or ought to have known that the commission of the offence
    would be a probable consequence of carrying out the common purpose is a party
    to that offence.

[38]

The scope of s. 21(2) is broader than s. 21(1), extending liability to
    persons who would not be found liable as aiders or abettors. It also extends
    responsibility for offences other than the offence the accused was carrying
    out, provided the accused had the required degree of foresight of the
    incidental offence:
R. v. Cadeddu
, 2013 ONCA 729, 304 C.C.C. (3d) 96,
    at para. 52.

[39]

In relying on s. 21(2), the Crown must prove (i) the party's
    participation with the principal in the original unlawful purpose (the
    agreement), (ii) the commission of the incidental crime by the principal in
    the course of carrying out the common unlawful purpose (the offence) and
    (iii) the required degree of foresight of the likelihood that the incidental
    crime would be committed (knowledge):
R. v. Simon
, 2010 ONCA 754,
    263 C.C.C. (3d) 59, at para. 43.

[40]

The agreement element requires that the accused and the other
    participant(s) agreed to carry out a common unlawful purpose and to help each
    other to do so:
Cadeddu
, at para. 58. The unlawful purpose
must be different from the offence ultimately committed:
Cadeddu
, at paras. 54, 56;
R. v. Simpson
,
    [1988] 1 S.C.R. 3, at p. 15.

[41]

The offence must be committed as the participants are
    carrying out their original agreement or plan:
Cadeddu
, at para. 60. The incidental offence, although not intended by the
    accused, must nonetheless be related to the original unlawful purpose:
Cadeddu
, at para. 59. As V. Gordon Rose notes in
Parties to an
    Offence
(Toronto: Carswell, 1982), at p. 72:

Section 21(2) requires that the consequential
    offence have been committed in carrying out the common purpose, and
    implicitly that it be in some way related to it. [The jury must] find that the
    action of the principal was a consequence of the prosecution of the original
    common unlawful purpose, and not the result of any supervening causative event
    wholly outside the agreed plan. [Citations omitted.]

[42]

As for the knowledge requirement, to convict a
    secondary party of murder under s. 21(2), the Crown must prove that the party
    in fact foresaw that murder was a probable consequence of carrying out the
    original unlawful purpose:
R. v. Jackson
,
    [1993] 4 S.C.R. 573, at p. 587;
Cadeddu
, at
    para. 62;
R. v. Logan
, [1990] 2 S.C.R. 731, at
    pp. 744-745. To convict a party of manslaughter relying on s. 21(2), the Crown
    must prove that a reasonable person in all the circumstances would have
    foreseen that a probable consequence of carrying out the original common
    purpose was perpetration of an inherently dangerous act creating a risk of
    bodily harm to the deceased that was neither trivial nor transitory:
Jackson
, at pp. 573 and 587;
Portillo
, at
    para. 73.

[43]

Each of the three essential elements must be supported by an
    adequate evidentiary record to warrant submission of this basis of liability to
    the jury. The submission of an alternative basis of liability is controlled by
    the air of reality standard:
R. v. Largie
, 2010 ONCA 548, 101 O.R.
    (3d) 561, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 119, at para.
    141. What is required is some evidence on the basis of which a reasonable
    jury, properly instructed, could make the findings of fact necessary to
    establish each element of this mode of participation:
Simon
, at para.
    43.
An instruction on a theory of liability that does not have
    an air of reality will constitute reversible error:
R. v. Ranger
(2003), 67 O.R. (3d) 1 (C.A.), at para. 132.

[44]

Finally, if satisfied there is an air of reality to each element of s.
    21(2) liability, the trial judge must, in charging the jury, set out the three
    elements of that basis of liability, explain what the Crown must prove in
    relation to each of those elements, and review the evidence the jury may
    consider in relation to the elements in determining whether that route to
    liability has been established:
Cadeddu
, at para. 64.

(2)

Section 21(2): At Trial

[45]

At the beginning of the pre-charge conference,
    the trial judge indicated that he intended to charge the jury in respect of
    Patels liability as an aider or abettor under s. 21(1). At first, the Crown
    agreed that this would be the most straightforward approach. Later, however,
    Crown counsel requested a charge under s. 21(2) as well. This was opposed by Patel.

[46]

The Crown acknowledged that its primary position
    was that Patel aided and abetted Pathan, as principal, in the planned and
    deliberate killing of an associate of Samuels (Martinez), and that s. 21(2) was
    irrelevant to this theory. The Crown contended that, as an alternative, if the
    jury found that the killing of Martinez was spontaneous,
i.e.
,

that it was not part of a planned murder, they should
    have resort to s. 21(2).
Crown counsel submitted that
    s. 21(2) should be an available route to party liability for Patel should the
    jury find that the accused did
not
recognize
    Martinez as an associate of Samuels  that is, if Martinez was a stranger they
    encountered in the lobby. The Crown also submitted that s. 21(2) was the only
    possible route to convict Patel of second degree murder or manslaughter.

[47]

Crown counsel submitted that the possible common unlawful purposes
    were to assault, threaten, rob or intimidate, with guns, Samuels and any of his
    associates who got in the way. The Crown argued that Patel would be guilty of
    second degree murder if he knew murder was a probable consequence of carrying
    out that common unlawful purpose and that, for manslaughter he would be liable
    for the actions of his co-accused that he knew were a probable consequence of
    their common purpose.
[1]
Crown counsel did not take the trial judge to any of the evidence in support of
    liability under s. 21(2), but stated repeatedly that s. 21(2) would operate if
    Patel and Pathan did not recognize Martinez.

[48]

The trial judge queried how, on the evidence in this case, there could
    be an unlawful purpose distinct from the murder, but with murder as a known
    probable consequence. The trial judge disagreed with the Crowns contention
    that s. 21(2) would be the only available route to a second degree murder or
    manslaughter conviction for Patel.

[49]

The trial judge also expressed concern about making the jury charge
    unnecessarily complex; he said that, if a reasonable doubt on the primary route
    of culpability (under s. 21(1)) would mean a reasonable doubt on the secondary
    route of culpability (under s. 21(2)), then the second route should not go to
    the jury.

[50]

The trial judge summarized his reasons for refusing to put s. 21(2) to
    the jury as follows:

[T]his is not a Section 21(2) case. Its being
    prosecuted correctly as a planned and [deliberate] killing. [T]o make second
    degree murder somehow a known and probable consequence of another unlawful
    object which is not apparent on the evidence in my view would be fundamentally
    incorrect as a matter of law. I will not charge the jury on Section 21(2).

(3)

Section 21(2): On Appeal

[51]

On appeal, the Crown asserts that the trial judge erred in refusing to
    put s. 21(2) to the jury when there was an evidentiary foundation for this
    basis of liability.

[52]

In this court, the Crown argues that the security video, together with
    the prior confrontation in the stairwell, provides a sufficient evidentiary
    foundation for each element of s. 21(2)  that Pathan and Patel agreed to
    return to 70 Stevenvale to assault with guns Samuels or his associates who got
    in their way; that they were in the course of committing that offence when
    Martinez was shot and killed; and that Patel knew the killing was a probable
    consequence of carrying out the assault with guns (for murder) or that a
    reasonable person would have known there was a risk of harm (for manslaughter).

[53]

In argument of the appeal, the Crown pointed to the following aspects of
    the security video as supportive of Patels liability under s. 21(2): Patel and
    Pathan arriving at the building, both armed with guns, with Pathans weapon
    ready to shoot; the speed with which the altercation began and then unfolded,
    with Patel reaching for his weapon immediately after Martinez allowed him into
    the lobby and in the absence of any aggression from Martinez; the movements of
    the two in a coordinated fashion, with Pathan reaching for his gun within
    seconds of Patel drawing his, and Patel looking over Martinezs shoulder,
    seeing Pathan with his gun drawn and maneuvering Martinez into Pathans line of
    fire; Patels apparent lack of surprise when Pathan shoots Martinez; and the
    two of them running off together following the shooting.

[54]

The Crown asserts that these features support the inference that the
    accused recognized Martinez as an associate of Samuels, and that they were therefore
    acting together in carrying out their common unlawful purpose of assaulting Martinez
    with guns when Pathan shot and killed him. The Crown also argues that, based on
    this evidence, the jury could have found that Patel knew or foresaw that an
    intentional killing was probable, or at least that a reasonable person would
    have foreseen the risk of harm as a result of carrying out the common unlawful
    purpose, namely the assault with guns.

[55]

The respondent contends that there is no air of reality to s. 21(2) even
    on the Crowns new theory  that Patel and Pathan were engaged together in an
    assault with guns of an associate of Samuels, when Martinez was killed.

(4)

The Effect of the Change in Theory

[56]

Leaving aside the issue of air of reality, I would not give effect to
    the Crowns argument on appeal.

[57]

As I have already noted, the Crowns argument on appeal differs from the
    position taken at trial with respect to the basis for s. 21(2). At trial, the
    Crown submitted that s. 21(2) would apply if Pathan and Patel did not recognize
    Martinez as an associate of Samuels. On appeal,
the Crown
    contends that s. 21(2) applies because Pathan and Patel were in the course of
    carrying out an assault with guns of Martinez
whom they recognized
as an associate of Samuels.
Indeed, Crown counsel
submits
    on appeal that the notion the accused would draw their guns on a complete
    stranger within a couple of seconds of encountering him makes no sense.

[58]

Appeal
courts are, for very
    good reason, reluctant to
entertain
    new arguments from the Crown on an appeal from acquittal, due to concerns about
    double jeopardy and an
accused persons s. 7 right to a fair trial and
    to make a full answer and defence:
R. v. Varga
(1994), 72 O.A.C. 141,
    90 C.C.C. (3d) 484 (C.A.) at paras. 26-27;
R. v. Suarez-Noa
, 2017 ONCA
    627 at paras. 30-35;
R. v. Wexler
, [1939] S.C.R. 350, 72 C.C.C. 1.

[59]

In
Suarez-Noa
,
    Doherty J.A. considered a Crown appeal from acquittal. On appeal, the Crown
    argued that the trial judge erred in leaving provocation with the jury because
    there was no air of reality to the defence, even though at trial the Crown
    agreed that provocation was available on the evidence. The Crown argued that
    its position at trial, while a factor to be considered in determining whether
    there was an air of reality to the defence, could not foreclose the ground of
    appeal it now advanced. The Crown relied on a line of cases in which the Crown,
    in responding to an appeal from conviction, had taken a different position than
    at trial in support of a submission that the error relied on by the accused
    caused no substantial wrong or miscarriage of justice. Doherty J.A. distinguished
    these cases. They were not Crown appeals from acquittal; therefore, in making a
    new argument and changing its position, the Crown was not seeking to put the
    accused in jeopardy a second time: para. 29. Doherty J.A. then reviewed what he
    characterized as a substantial body of case law dealing with Crown appeals
    that argues strongly against the Crown being allowed to advance [a new] ground
    of appeal: para. 30.

[60]

Among the cases cited by Doherty J.A. was the
    Supreme Court of Canadas decision in
R. v. Wexler
, a Crown appeal from acquittal in a murder case. On appeal, the
    Crown argued that the trial judge should have instructed the jury on an
    alternative theory, which would support a verdict for manslaughter, even though
    the Crown at trial had not sought to have this theory put to the jury. In three
    concurring judgments, the court held that the Crown could not seek a retrial
    based on a new theory. Duff C.J. held, at p. 353:

To set aside a verdict of acquittal in such
    circumstances, merely because the case for the Crown might, on a possible view
    of the evidence, have been put upon another footing would, it appears to me,
    introduce a most dangerous practice; a practice not, I think, sanctioned by the
    statute.

In his concurring judgment, Crocket J.
    expressed a similar concern at pp. 357-358:

There can be no doubt that the jury believed
    the accused's explanation and acquitted him for that reason. To subject
    him now, after he had been put in jeopardy, taken the stand in his own behalf
    and been acquitted on that indictment, to a new trial thereon on the ground
    that he might have been convicted of manslaughter if the Crown counsel had not
    failed to put this feature of the case forward on the trial would, it seems to
    me with all respect, be such a manifest injustice as Parliament could not
    well be deemed to have intended when it enacted this drastic amendment to the
    Criminal Code [referring to the section creating the Crown right of appeal from
    an acquittal].

[61]

I recognize that this is not a situation where the Crown has
    raised, for the first time on appeal, an entirely new ground of liability. In
    this case, the Crown requested an instruction under s. 21(2), which was
    rejected by the trial judge. On appeal to this court, the Crown however asserts
    a new basis to support its theory under s. 21(2). The concerns about fairness
    and double jeopardy also apply where the Crown, on appeal, raises a new
    argument to support the position for which it unsuccessfully advocated at
    trial:
R. v. Penno
,

[1990] 2 S.C.R. 865, at p. 895;
R. v.
    Nguyen
, 2008 SKCA 160, 240 C.C.C. (3d) 39, at paras. 40-42. As this court
    stated in
R. v. Tran
, 2016 ONCA 48, at para. 4:

The trial judge's reasons were responsive to
    the Crown's legal submissions. It would be unfair to the trial judge and,
    importantly, to the respondent to allow the appeal and enter convictions
    against the respondent or order a new trial on the basis of a factual scenario
    and legal submissions not advanced by the Crown at trial.

[62]

The Crowns change in position in this case is significant. At
    trial, the Crown argued forcefully that Martinezs killing was planned and
    deliberate. The Crown relied on inferences it urged the jury to draw from the
    security video  specifically the speed with which events unfolded and the
    alleged synchronized movements of the accused, who were both armed and drew
    their weapons. The Crown asserted that the accused set out to kill Samuels or
    any associate of his who got in their way, and that this was exactly what they
    did upon encountering Martinez. The Crown acknowledged that the accused
    recognizing Martinez as an associate of Samuels was essential to its theory of
    a planned and deliberate murder.

[63]

A central issue at trial was whether the accused recognized Martinez
    or whether, as they claimed, he was a stranger who surprised them as they were
    entering the building. It was in the context of the latter scenario  that the
    accused did not recognize Martinez as an associate of Samuels  that trial
    Crown counsel sought to have s. 21(2) fill the gap in its case. However, the
    Crown does not seek to have this court uphold that theory on appeal.

[64]

The Crown did not advance at trial the theory it now advances on
    appeal: that Martinez was killed while the accused were carrying out a lesser
    plan to assault him
because
they recognized him as an associate of Samuels. This
    may have been an oversight, or it may have been strategic. Perhaps the Crown sought
    to connect s. 21(2)s application to the accused not recognizing Martinez
    because the Crown did not wish to highlight an alternative theory that could
    have weakened and undermined the Crowns main theory of first degree murder.
    More specifically, the Crown did not want the jury to be invited to consider
    that, even though the accused recognized Martinez, they were carrying out a
    lesser purpose than planned and deliberate murder at the time Martinez was
    killed. In any event, having failed to secure a conviction against Patel based
    on how its case was presented at trial, the Crown cannot be permitted to use
    its right of appeal to seek a new trial based on a new factual and legal theory
    it did not advance at trial. I repeat, the Crown is not asking this court to
    uphold on appeal the theory of liability under s. 21(2) on which it relied at
    trial. It would be fundamentally unfair to allow the Crown to secure a retrial
    and put Patel in jeopardy a second time based on a different legal and factual
    basis for conviction than was advanced at trial:
Suarez-Noa
, at para.
    34.

[65]

Although this is not necessary to dispose of this ground of
    appeal, in my view, the trial judge was correct in rejecting the
Crowns assertion that without s. 21(2) there would be no route to a
    conviction of Patel for second degree murder or manslaughter. If the jury were not
    satisfied that the killing of Martinez was planned and deliberate, but occurred
    spontaneously (whether or not Martinez was recognized as an associate of
    Samuels) Patel would have been guilty of second degree murder or manslaughter as
    a party if he aided or abetted Pathan with the requisite mental state.

[66]

Finally,

given Patels
    acquittal for second degree murder under s. 21(1), I am not satisfied the Crown
    has demonstrated
that the verdict would not necessarily have
    been the same had the trial judge instructed the jury on its appeal theory for
    liability under s. 21(2)
. This is because the Crown relied on the same
    evidence and the same inferences at trial, in support of Patels liability for
    aiding and abetting Pathan in the killing of Martinez as it does on appeal for
    liability under s. 21(2) and also because of the functional similarity, on the
    facts of this case, of the
mens rea
requirements under ss. 21(1) and
    (2) for Patels party liability for second degree murder.

[67]

The Crown asserts on appeal that it would have been open to the
    jury to draw the inference that Pathan and Patel recognized Martinez and were
    carrying out their plan to assault him, as an associate of Samuels, when Pathan
    shot and killed Samuels  something Patel knew was likely to occur.

[68]

At trial, to prove Patel was guilty of aiding or abetting Pathan
    in committing second degree murder, the Crown had to show Patel knew Pathan was
    going to kill Samuels and intended to assist him or encourage him in doing so.

[69]

Given the evidence in this case, it is implausible that the jury
    could have been satisfied Patel was participating with Pathan in a plan to
    assault Martinez with guns, knowing Pathan was likely to shoot Martinez,
    without also concluding that Patel aided or abetted Pathan in shooting Martinez.
    The jurys rejection of liability under s. 21(1) would have resulted in the
    same verdict under s. 21(2)
[2]
.

[70]

For these reasons, I would reject this ground of appeal.

B.

Ground 2: Did
    the Trial Judge Err in His Section 21(1) Instruction?

[71]

The Crowns
second ground of appeal is that the trial judge erred
    in his charge on party liability under s. 21(1): first, in instructing the jury
    that they must be satisfied that Patel caused Martinezs death to find him
    liable as a party, and second, in instructing the jury that they had to convict
    Patel and Pathan of the same offence.

[72]

I will deal with each alleged
    error in turn.

(1)

The Causation Instruction

[73]

The Crown contends that the trial
    judge erred in instructing the jury that they must be satisfied that Patel
    caused Martinezs death before they could convict him as a party to the offence.
    The trial judge directed the jury to determine the issue of causation for each
    defendant as a preliminary issue and instructed that, if they were not satisfied
    beyond a reasonable doubt that the conduct of a defendant, each considered
    separately but in the context of the conduct of the other defendant and of
    Lorenzo Martinez, caused the death of Lorenzo Martinez, you must find that
    defendant not guilty. The Crown asserts that this was wrong because a party
    can aid or abet by acting in a way that furthers, facilitates, promotes,
    assists or encourages the principal, and be found liable irrespective of any
    causative role in the commission of the crime:
R. v. Dooley
, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 123, leave
    to appeal to S.C.C. refused, [2010] S.C.C.A. No. 179, [2010] S.C.C.A. No. 83. Therefore,
    although the Crown had to prove that Pathan caused Martinezs death for the
    jury to find him guilty of culpable homicide as a principal, the trial judge
    ought not to have imposed such a requirement on the Crown in relation to Patel
    for the purpose of party liability under s. 21(1). The Crown says that the
    trial judges instruction may have led the jury to conclude that only Pathans
    act in shooting Martinez caused Martinezs death, and to acquit Patel before
    considering whether he was a party to Pathans offence.

[74]

The respondent contends that, when
    read in context, the trial judges instructions were accurate and appropriate.
    Whether Pathans shooting of Martinez was foreseeable to Patel, irrespective of
    Patels actions, was an issue at trial. The instructions on causation with
    respect to Patel related to the issue of a supervening event. By charging the
    jury on this issue, the trial judge ensured that Patel would be acquitted,
    without needing to consider further issues, if the jury found that Pathans
    shooting of Martinez was a spontaneous, unexpected and unforeseen act. In any
    event, it is not an error for a trial judge to instruct on causation in a party
    liability case, where the acts relied on for aiding or abetting, as here, had a
    causal nexus to the crime that was committed.

[75]

I would not give effect to this
    ground of appeal. In the circumstances of this case, the trial judge did not
    err in the instruction he provided to the jury on the issue of causation in
    respect of Patels liability.

[76]

I begin with a brief comment on
Dooley
,

which was
    relied on by the Crown in support of this ground of appeal.
Dooley
was
    a defence appeal, where the appellants argued, unsuccessfully, that causation
    is required as an element of aiding and abetting. Doher
ty J.A.
    noted that the difference be
tween the accessorial act and the
    substantive crime renders a description of accessorial liability in terms of
    causation difficult and unhelpful, and that referring to causation in two
    different ways in a jury charge (in respect of the perpetrators liability and
    in respect of aiding and abetting) could lead to confusion.

[77]

In
Dooley
,
the court rejected the argument that
    causation is an element of party liability because, although
there must
    be a connection between the offence and the alleged accessorial acts,
the connection required in the context of
    accessorial liability varies and some kinds of culpable assistance have no
    causative link to the crime committed (at para. 121). The court did not,
    however, preclude an instruction on causation in
all
cases where a party may be liable under s. 21(1).
In this case, the causation instruction was
    appropriate and would not have misled the jury. It was intended to address an
    issue at trial  whether Patel was aiding or abetting Pathan in Martinezs
    killing, or whether Pathans actions were spontaneous, unexpected and unforeseen
    by Patel.

[78]

In the pre-charge conference, the
    trial judge explained his perspective in referring to causation for Patel. If Pathan
    was on a frolic of his own  if Patel did not know Pathan had a gun and if
    there was no discussion about using it  Patels altercation with Martinez would
    not have been a significant contributing cause of Martinezs death and Pathans
    firing of the gun would not have been reasonably foreseeable to Patel. Trial
    counsel for the Crown said he thought this was correct as a matter of law, and
    that it was a live issue for Patel, particularly with respect to second degree
    murder.

[79]

The instruction did not raise the
    threshold for causation as a party but instructed the jury that, if they found
    that Pathan did something between Patels conduct and the death that reduced
    Patels conduct to less than a significant contributing cause, Patel did not
    cause the death as a matter of law.

[80]

Unlike other cases where aiding
    and abetting has some connection but does not have a causal nexus to the
    principal offence, Patels actions that were relied on by the Crown, if
    accepted by the jury, would have had a causal link to Martinezs death. Thus, the
    requirement that Patels actions be a significant contributing cause of death,
    one that is more than minor in its contributory nature did not elevate what
    was required for aiding and abetting, but underlined the need for a factual
    nexus between Patels acts of alleged assistance or encouragement, and the
    offence. The jury was properly instructed:

The defendants conduct does not need to be
    the only cause of death but must be a significant contributing cause, that is,
    a significant factor in the events leading to death. It need not be a direct
    cause of death. It must be an important, or integral, part of such events.

[81]

On the Crowns theory at trial,
    this standard of causation was met in respect of Patels conduct. In these
    circumstances, the reference to causation, followed by a summary of the Crowns
    case and Patels case on this issue, served to underline the requirement that the
    jury find that Patel aided and abetted Pathan, and addressed the potential for
    Pathans shooting of Martinez to have been unexpected and unforeseen and
    therefore not connected to anything Patel did.

[82]

Finally, as Watt J.A.
    noted in
Simon
at
    para. 45, [a]n important, but not dispositive factor in determining whether
    appellate intervention is warranted is the failure of counsel to object to what
    is later advanced as prejudicial error. Not only was there no objection by the
    Crown to this aspect of the charge at trial, Crown counsel specifically
    endorsed this instruction. Although the failure to object is not determinative
    on appeal, it supports the view that the trial judges instruction was
    appropriate in the circumstances of the case:
Dooley
, at para. 131.

(2)

Whether Patel Could Only Be Found Guilty of the Same Offence as Pathan

[83]

The Crown asserts that the trial
    judge erred in charging the jury that Patel could only be convicted of the same
    crime as Pathan. The Crown refers to excerpts from the charge where the trial
    judge stated: Patel, as a matter of law, cannot be convicted as an aider or
    abettor of Pathan in the commission of first degree murder, second degree
    murder or manslaughter, as the case may be, unless you are satisfied beyond a
    reasonable doubt that Pathan committed such an offence, and [I]n this case, a
    defendant, Patel, cannot be convicted of a crime as an aider or abettor of a
    principal offender, Pathan, unless the principal offender was convicted of the
    crime.

[84]

According to the Crown, in finding
    Pathan guilty of second degree murder, the jury would have understood from
    these instructions that Patel could only have been found guilty of second
    degree murder, and not of the lesser offence of manslaughter. This is an error
    of law. Principals and parties may be found guilty of different offences where the
    party aided or abetted the principal for the purpose of committing a lesser
    offence and the principal committed a greater offence.

[85]

The respondent contends that, in
    the circumstances of this case, the trial judge was correct in instructing the
    jury that it could not find Patel liable for a more serious offence than that
    for which Pathan was convicted. The trial judge referred to this as the cap
    on Patels potential liability as an aider or abettor. The two passages relied
    on by the Crown are taken out of context. Read as a whole, no juror would have
    understood the instruction to mean that Patel could only be found guilty of the
    same offence as Pathan.

[86]

Again, I would not give
    effect to this ground of appeal. A fair reading of the charge reveals that the
    jury was properly instructed that they were to consider the liability of Pathan
    and Patel separately, that different verdicts for each of the accused were
    available, and that Patel could be convicted of a lesser offence than Pathan.
    The failure of the Crown to object at trial, while not determinative,
    reinforces the conclusion that the jury would not have been left with the
    impression, as the Crown advances on appeal, that they could only find Patel
    guilty of the same offence as Pathan.

[87]

The first impugned passage appears
    in the portion of the charge dealing with First Degree Murder, Second Degree
    Murder and Manslaughter by Aiders or Abettors. The trial judge stated:

There is one important limitation on the
    potential culpability of Patel as an aider or abettor of Pathan as a principal
    offender who committed the offence of first degree murder, second-degree murder
    or manslaughter, as the case may be. In a case like this one Patel, as a matter
    of law, cannot be convicted as an aider or abettor of Pathan in the commission
    of first degree murder, second degree murder or manslaughter, as the case may
    be, unless you are satisfied beyond a reasonable doubt that Pathan committed
    such an offence.

At the end of that section, however, the trial judge
    went on to state that [t]he proven culpability of the principal offender,
    Pathan, puts a cap on the potential culpability of an aider or abettor of the
    principal offender, Patel, in this case. This made clear that the offence for
    which the jury could find Patel guilty could not be greater than the offence
    for which they find Pathan guilty.

[88]

The second impugned passage is
    found before the trial judges concluding remarks to the jury. He said:

[A] verdict of Not Guilty in favour of a
    defendant is not, itself, evidence that may exculpate the other defendant, with
    one exception. The circumstances underlying any such verdict may, or may not,
    exculpate the other defendant. The exception is that, in this case, a
    defendant, Patel, cannot be convicted of a crime as an aider or abettor of a
    principal offender, Pathan, unless the principal offender was convicted of the
    crime.

Again, the Crown argues that this left the jury with
    the mistaken impression that they could only find Patel guilty of the same
    offence for which Pathan was convicted. I disagree.

[89]

Repeatedly throughout the charge, the trial judge told the jury that
    they were to consider and determine the liability of the two accused
    separately, that they were required to return separate verdicts for each, and
    that the verdicts could be the same or different. One caveat was that Patel
    could not be found guilty of aiding and abetting Pathan in an offence unless
    Pathan had committed that offence. For second degree murder, the trial judge
    stated, [r]ecall, as well, that, if you are not satisfied beyond a reasonable
    doubt that Pathan committed the offence of second degree murder, as a principal
    offender you may not convict Patel of aiding or abetting Pathan in the
    commission of the offence of second degree murder. He gave similar
    instructions in respect of first degree murder and manslaughter, which he
    described as an included offence. Given these instructions, the trial judges
    comment in his concluding remarks to the jury that Patel, cannot be convicted
    of a crime as an aider or abettor of a principal offender, Pathan, unless the
    principal offender was convicted of a crime was clearly a reminder that Patel
    could not be convicted unless Pathan was also convicted of a crime.

[90]

Further, the passage the Crown
    takes issue with does not refer to the level of culpability, but rather
    culpability in general. This interpretation is supported by the context, as the
    trial judge went on to instruct the jury that a verdict of not guilty with
    respect to one defendant cannot be used to exculpate the other. The exception
    that the trial judge sets out  and the appellant takes issue with  is an
    instruction that if Pathan is found not guilty, Patel would also be found not
    guilty. This is a correct statement of the law.

[91]

Again, there was no objection to
    this part of the charge at trial, which, although not determinative, supports
    the conclusion that the jury would not have understood the instruction the way
    the Crown now proposes.

V.

DISPOSITION

[92]

For these reasons I would dismiss the
    Crowns appeal.

K. van Rensburg J.A.

I agree Janet Simmons
    J.A.

I agree B.W. Miller
    J.A.

Released: September 12, 2017

[1]

On appeal Crown counsel noted that this was incorrect, and
    that trial counsel should have said that Patel would have been liable for
    manslaughter in respect of Pathans killing of Martinez if, in carrying out
    their common unlawful purpose, a reasonable person would have known there was a
    risk of harm.

[2]

The same conclusion may not apply to manslaughter because the
    unlawful act was framed as discharging a firearm with intent to endanger
    life.