COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Modeste, 2015 ONCA 398

DATE: 20150608

DOCKET: C55821

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Edwin Modeste

Appellant

Delmar Doucette, for the appellant

Roger Shallow and Michael Bernstein, for the respondent

Heard: December 1, 2, 3, 2014

On appeal from the conviction entered by Justice Maureen
    D. Forestell of the Superior Court of Justice, sitting with a jury, on April
    28, 2012, and from the sentence imposed on July 30, 2012, with reasons reported
    at 2012 ONSC 4463, [2012] O.J. No. 3694.

Tulloch J.A.:

Overview

[1]

The appellant, Edwin Modeste was convicted as a party to manslaughter in
    the stabbing death of Brandon Ramdeen. His co-appellant, Kimron Bengy, stabbed
    Ramdeen during the course of a fight between two opposing groups of men in the
    early morning hours of June 21, 2009, following their attendance on a boat
    cruise in the Toronto harbour.

[2]

The Crowns theory at trial was that Modeste was liable as a party to
    the offence under s. 21(2) of the
Criminal Code
, R.S.C. 1985, c. C-46.
    The Crown alleged Modeste and Bengy had formed an intention in common to
    assault the deceased, and that Modeste ought to have foreseen the harm that
    Bengy inflicted which resulted in Ramdeens death.  Following a trial composed
    of judge and jury, Modeste was convicted of manslaughter and sentenced to the
    equivalent of five years in prison, subject to pre-trial custody.

[3]

He appeals his conviction and sentence, and raises the following grounds
    on the appeal from conviction:

·

The trial judge erred in leaving s. 21(2) liability with the
    jury, and this error led to an unreasonable verdict;

·

In the alternative, this courts decision in
R. v. Vang
(1999), 132 C.C.C. (3d) 32, leave to appeal to S.C.C. refused, [1999] S.C.C.A.
    No. 203, the case relied on by trial judge in order to leave s. 21(2) liability
    with the jury, should be reconsidered in the light of this courts decision in
R.
    v. Shand
, 2011 ONCA 5, 104 O.R. (3d) 291, leave to appeal to S.C.C.
    refused, [2011] S.C.C.A. No. 270;

·

The trial judge erred by improperly instructing the jury in
    regard to self-defence and consent;

·

In the alternative, the new self-defence provision which came
    into force on March 11, 2013 should be applied retrospectively to this appeal;
    and

·

The trial judge erred by improperly instructing the jury on the
    use it could make of a prior statement of a witness, Kitson Robertson.

[4]

Two of the appellants grounds of appeal can be briefly rejected.

[5]

First, with respect to the appellants request for this panel to
    re-consider this courts earlier decision in
R. v. Vang
, the appellants
    request for a five-judge panel was denied. As such, I will not give any further
    consideration to the appellants argument in this regard. With respect to his
    argument that
Vang
should be distinguished, it is my view that the
    differences in the facts raised by the appellant do not mean there was no basis
    for liability under s. 21(2) in this case.

[6]

Second, this appeal is one of four separate appeals which were heard
    together, in which all the appellants advanced similar arguments regarding the
    retrospectivity of the new self-defence provision. On this issue, I concur with
    the reasons and analysis of my colleague Hourigan J.A., in
R. v. Bengy
,
    2015 ONCA 397.  In my view, the new self-defence provisions must be applied
    prospectively. I would not give effect to this ground of appeal.

[7]

I would, however, allow the appeal.

[8]

First, I would allow the appeal on the basis that the trial judge
    misdirected the jury on the defence of consent. Second, although it is not
    strictly necessary to the determination of this appeal, I would note that in
    the circumstances, the trial judge should have given a more complete charge to
    the jury on the use of Kitson Robertsons prior inconsistent statement to the
    police.

[9]

I would not give effect to the other grounds of appeal.

Factual Background

[10]

Over
    the course of the evening of June 20, 2009, and the early morning hours of June
    21, two fights took place, and two men died: Andy James and Brandon Ramdeen.
    Both had been stabbed. There were essentially two sides to both confrontations.
    James and Ramdeen belonged to the same side, which also included at least Dexter
    Regis and Collins George. The other side included Kimron Bengy, Edwin Modeste,
    Leon Alexander, Edmund Benjamin and Anski Julien. The extent of each
    individuals presence at and participation in each fight was highly contested
    at trial.

[11]

On
    the evening of June 20, 2009, these men attended a boat cruise in Toronto. The
    boat returned to dock at about 2:05AM. The passengers began disembarking and headed
    into a parking lot. While still on the boat, James and Alexander got into a
    heated argument over the way Alexander had been treating Jamess girlfriend.
    The two were separated by other men, and Alexander was escorted to the parking
    lot, where he met up with Anski Julien and Modeste.

[12]

Alexander
    was angry. He wanted to find James and box him. His friends attempted to calm
    him down, but he broke away from them and ran back towards James. Modeste
    chased after him. Bengy followed.

The First Fight

[13]

Alexander
    caught up with James in the parking lot and a fight began. Several others were
    involved. Modeste acted as a peacemaker and ran into the fight to pull
    Alexander out.

[14]

Over
    the course of this fight, Andy James was stabbed. He died in hospital shortly
    afterwards. While there were several witnesses to the fight, no one witnessed
    the actual stabbing. Before James was driven to hospital, Jamess friends and
    others at the scene asked him who stabbed him. According to the testimony at
    trial, James variously identified his stabber as Alexander, Modeste and the
    other men with him, and the short man who was with Anski Julien.

[15]

As
    a result, a number of Jamess friends wrongly believed Modeste was responsible
    for the stabbing, and went in search of him. This group included at least
    Ramdeen, Dexter Regis and Collins George, and may have included three other
    men.

The Second Fight

[16]

Modeste
    was still in the parking lot when Jamess friends caught up with him. Dexter
    Regis led the group. He carried a metal baseball bat. He asked Modeste why he
    stabbed James. Modeste responded, I dont know what youre talking about.
    Ramdeen also confronted Modeste about the stabbing.

[17]

A
    fight quickly broke out. Either Modeste or Ramdeen, or both of them, fell
    against a nearby car, and then to the ground. At the end of the fight, Ramdeen
    attempted to stand but fell to the ground. He had also been stabbed, and died as
    a result of his wounds.

[18]

The
    evidence at trial on what happened during the second fight varied widely. Many
    of the witnesses had credibility or reliability problems, and several had given
    inconsistent versions of the fight over the almost three years between the
    fights and trial. The fight was variously described as five-on-four,
    five-on-one, three-on-four, three-on-one, five-on-five, eight-on-one, and
    two-on-one. Many of the witnesses gave different versions of how the fight
    began, including that Ramdeen initiated the physical contact. Others said he
    was rushed by Modeste or the men standing with him.

[19]

Police
    arrived at the scene at 2:24AM. The entire sequence of events took place over
    about 20 minutes.

The Evidence of Kitson Robertson

[20]

Kitson
    Robertson was friends with some of the men involved in the altercations, and
    observed both fights. He gave a statement to police and testified at trial.

[21]

In
    chief, Robertson testified that after the first fight, he observed James from
    across the parking lot. James had blood on his shirt. Robertson went to James
    and James told him that the short black guy that be with Anski and them
    stabbed him. Robertson believed this man to be Bengy.

[22]

Robertson
    testified that he then went to talk to Bengy. He asked Bengy why he stabbed James.
    Bengy responded, He doesnt know it was me. Robertson stated that after
    speaking to Bengy, he told Modeste that James had been stabbed and how James described
    his attacker. He testified that Modeste then went to speak to Bengy to find out
    if Bengy had stabbed James. The second fight began shortly afterwards.

[23]

Just
    before the second fight started, Robertson saw Modeste, Alexander, Benjamin,
    Julien and Bengy in the parking lot. They were approached by a man with a
    baseball bat, who had a lot of people behind him approaching at the same time. The
    man with the bat asked Modeste why he stabbed James. Someone grabbed at the
    bat, and a fight broke out. The man with the bat pushed Modeste, and then ran
    away.

[24]

Ramdeen
    jumped on Modeste. They both fell back onto a vehicle and then to the ground.
    Ramdeen had his hands around Modestes neck, and Modeste was trying to get
    away. Alexander, Benjamin and three or four men who were with Ramdeen became
    involved.

[25]

Robertson
    testified that after the second fight ended, he, Modeste, Alexander, and
    another man and a woman, got into a car and drove away. He then told Modeste
    that Bengy stabbed James. Modeste then called Bengy to ask him if he stabbed
    James. When he hung up the phone, Modeste was upset. He expressed disbelief and
    said that this was not supposed to happen.

[26]

In
    cross-examination, counsel for Modeste reminded Robertson that in his statement
    to police he made no mention of speaking to Modeste in between the two fights.
    Robertson agreed with counsel for Modeste that his testimony in chief was a
    result of a mistake in his memory, and that his statement to police was more
    accurate. The relevant exchange was as follows:

Q.      [T]he question that comes to my mind is that, on your
    evidence at trial you had said that you had told Andre and Edwin [that Bengy
    said he stabbed James], in the parking lot, and I guess the question would be,
    if you told them in the parking lot, it really doesnt make sense to me  and
    maybe you could explain it  why you would tell them again in the car.

Do you understand how  the difficulty there?

A.      Yes.

Q.      Okay. Now, we talked a little bit earlier about how,
    when you spoke to the police in June, your recollection was better then than it
    is today. Right?

A.      Yes.

Q.      And Im not suggesting, Mr. Robertson, that youre
    lying, but we had  we had discussed that sometimes memories are imperfect, or
    fade over time. Remember that?

A.      Yes.

Q.      So in your police statement you had described how  well,
    you failed to make any note of telling Mr. Modeste, or Mr.  Andre Julien,
    about hearing about the stabbing in the parking lot, but you did relate it  you
    made the only mention of it when you were saying in the car.

Now we can agree that thats different than what you testified
    to at trial; would you agree with that?

A.      Yes.

Q.      All right. So again, weve already established that you
    were trying to be truthful with the police in June of 2009. Correct?

A.      Yes.

Q.      And you would agree with me that telling or not telling
    the police about having told Edwin and Andre in the parking lot, as you
    testified to here, thats a pretty big point, isnt it; thats a pretty
    important detail; would you agree?

A.      Yes.

Q.      So given that you told or related a different
    narrative, as it would be, in June of 2009, compared to what you testified to
    at trial, if I were to suggest to you that what you told the police there was
    more accurate, that in fact the first time you spoke of having received this
    information from Mr. Bengy was when you guys were all in the car and you were
    leaving, that was the first time you spoke about it, would you agree that
    thats

A.      Yes.

Q.      All right. So what you had testified to during the
    trial, that was just a mistake based on flawed memory. Would you agree?

A.      Yes.

Discussion

[27]

As
    stated above, for the reasons that follow, I would reject the appellants
    grounds of appeal relating to s. 21(2) liability and the instruction on
    self-defence. I would allow the appeal on the basis that the trial judge erred
    in her instruction to the jury on consent. Below, I address first the s. 21(2)
    issue, and I go on to address the various grounds relating to the trial judges
    instructions to the jury.

(1)

Did the trial judge err in leaving liability under s. 21(2) of the
Criminal Code
with the jury?

[28]

The
    appellant argues the trial judge erred by leaving liability under s. 21(2) with
    the jury, and says this error resulted in an unreasonable verdict. In my view,
    there was evidence to support the Crowns theory of liability under s. 21(2),
    and the trial judges decision to leave it to the jury did not result in an
    unreasonable verdict.

[29]

Section
    21(2) extends liability for an offence beyond the primary offender to other
    individuals involved in a separate shared unlawful purpose. It provides:

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.

[30]

The
    Crown must prove three elements, sometimes referred to as agreement,
    offence, and knowledge, as follows:

1.      A
    common intention or agreement existed between two or more persons to carry out
    an unlawful purpose and to assist each other in doing so;

2.       One
    of the persons, in the course of carrying out the common purpose, committed a
    different offence; and

3.      The
    other person knew or ought to have known that the commission of that offence
    would be a probable consequence of carrying out the common unlawful purpose:
R.
    v. Simon
, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 43, leave to appeal
    to S.C.C. refused, [2010] S.C.C.A. No. 459;
R. v. Cadeddu
, 2013 ONCA
    729, 304 C.C.C. (3d) 96, at paras. 53, 56-62.

[31]

The
    unlawful purpose must be different from the offence committed by the principal
    in carrying out the common purpose:
R. v. Simpson
, [1988] 1 S.C.R. 3,
    at p. 15.

[32]

Here,
    the trial judge put the essential elements to the jury as follows:

1.      Bengy
    and Modeste agreed to carry out a common unlawful purpose during the second
    fight, to assault Ramdeen and to help each other with the assault;

2.      In
    the course of carrying out the purpose of assault, Bengy caused Ramdeens death
    by committing a different unlawful act which was objectively dangerous, the
    stabbing; and

3.      Modeste
    knew or ought to have known that a probable consequence of carrying out the
    original agreement to assault was that Bengy would commit an act that was
    unlawful, and which a reasonable person would think likely put another person
    at risk of harm or injury that was more than brief and minor in nature.

[33]

In
    my view, there was evidence to support the Crowns theory of liability under s.
    21(2); as such, the trial judge did not err in leaving this theory to the jury.
    Indeed, Modestes counsel at trial apparently accepted that there was
    sufficient evidence to support the Crowns theory under s. 21(2). The evidence relevant
    to the Crowns theory on each of the elements, as summarized by the trial judge
    in her charge, was in part as follows.

[34]

The
    Crown relied on the actions of the men in jointly assaulting Ramdeen to prove
    the first element, the existence of the agreement or common purpose to do so. The
    evidence on this element included that Bengy and Modeste were both part of the second
    fight, the men attacked Ramdeen at the same time, Bengy joined the second fight
    after Modeste was involved, and all the men on Modestes side jumped in after
    Ramdeen punched or grabbed Modeste.

[35]

The
    evidence on the second element, that Bengy caused Ramdeens death by a further
    unlawful act in the course of carrying out the agreement to assault him,
    included that Bengy was present at the fight, he carried a knife and had a
    knife on him that night, and he was seen running away after Ramdeen fell.

[36]

The
    evidence on the third element, that Modeste ought to have known that Bengy
    would probably carry out a different objectively dangerous unlawful act,
    included that Modeste was asked whether he stabbed James shortly before the
    second fight began, and the evidence surrounding the first fight and Modestes
    participation in it. It also included the evidence that up to five men assaulted
    Ramdeen at once, and the evidence that shortly before the second fight, Robertson
    told Modeste that Bengy had stabbed James.

[37]

On
    the first element, a jury could have accepted the evidence that Modeste and
    Bengy assaulted Ramdeen together. The jury could have inferred from this evidence
    that they shared a common intention or purpose to assault him. On the second
    element, the jury could have concluded that Bengy committed a further offence
    in the course of carrying out the unlawful purpose when he stabbed Ramdeen.
    Finally, the jury could have accepted Robertsons evidence that he told Modeste
    before the second fight that Bengy had admitted to stabbing James. The jury
    could have concluded that a reasonable person, believing that Bengy had already
    stabbed one person in a fight that night, ought to have foreseen that it was
    probable that he would commit a further offence in the course of carrying out
    the assault.

[38]

Accordingly,
    the verdict was not unreasonable. There was evidence upon which a properly
    instructed jury, acting reasonably, could have convicted. The appellant argues
    that some of the witnesses whose testimony supported the Crowns theory were
    not credible or reliable. It was for the jury to decide whether to accept the
    above evidence or not, and if it accepted it, to determine what inferences it was
    prepared to draw.

[39]

For
    the reasons outlined above, I would reject this ground of appeal.

(2)

Did the trial judge err in her instructions to the jury on self-defence,
    consent or the permissible uses of the prior inconsistent statement of Kitson
    Robertson?

[40]

When
    assessing alleged errors in a trial judges instruction to the jury, appellate
    courts must examine the alleged errors in the context of the entire charge, and
    of the trial as a whole. Trial judges have an important obligation to ensure
    juries are adequately prepared for deliberations, but they are not held to a
    standard of perfection. On appeal, courts should not examine minute details of
    a jury instruction in isolation but must take a functional and contextual
    approach and determine the overall effect of the charge:
R. v. Araya
,
    2015 SCC 11, [2015] S.C.J. No. 11, at paras. 39-40.

[41]

Taking
    the above approach, I would conclude that the trial judge did not err in her
    instructions on self-defence. However, her charge on consent did not adequately
    prepare the jury for its deliberations on that issue. I would allow the appeal
    on this ground. Finally, although it is not necessary for the purpose of
    deciding this appeal, I note that it would have been beneficial for the trial
    judge to have provided the jury with more guidance on the use of Kitson
    Robertsons prior inconsistent statement.

(a)

Did the trial judge err by improperly instructing the jury in regard to self-defence?

[42]

The
    appellant submits that the trial judge erred by instructing the jury that it
    could consider the force used by Modestes friends in deciding whether Modeste
    used excessive force. In my view, when the instruction on self-defence is
    considered as a whole, it would have been clear to the jury that it was being
    asked to determine whether the force used by Modeste alone was excessive.

[43]

The
    trial judge put self-defence to the jury under s. 37 of the
Criminal Code
,
    which at the time, provided that a person would be justified in using force to
    defend himself or anyone under his protection if he [used] no more force than
    is necessary to prevent the assault or the repetition of it. She instructed
    the jury that the issue of self-defence was relevant to the first element of liability
    under s. 21(2), namely, whether Modeste had a common unlawful purpose with
    Bengy: Self-defence is relevant, because if the goal of Mr. Modeste was to
    defend himself, then he would not have been pursuing a common unlawful goal
    with Mr. Bengy of assaulting Brandon Ramdeen.

[44]

The
    trial judge instructed the jury as follows on the issue of excessive force:

Did
    Edwin Modeste use more force than was necessary
to prevent Mr.
    Ramdeens assault or stop it from continuing or being repeated?

This question requires you to consider the relationship between
    the unlawful assault by Mr. Ramdeen and the
force used by Edwin Modeste
to
    prevent Mr. Ramdeens assault or to stop Mr. Ramdeen from continuing or
    repeating it.

Anyone defending himself cannot be expected to know exactly how
    much force is necessary. What a reasonable person would believe or do in
    similar circumstances to prevent Mr. Ramdeens assault, or to stop Mr. Ramdeen
    from continuing or repeating it is one of the factors that you should consider
    in deciding whether the
force used by Edwin Modeste
was necessary to prevent Mr.
    Ramdeens assault, or to stop Mr. Ramdeen from continuing or repeating it.

Your answer to this question will depend on your view of the
    evidence. Consider all of the circumstances. Use your common sense, experience,
    knowledge of human nature, and your assessment of what actually happened.

If
    Edwin Modeste did nothing more than a reasonable person would consider
    necessary
to prevent the assault, or to stop Mr. Ramdeen from
    continuing or repeating it, in the circumstances known to Mr. Modeste he acted
    in lawful self-defence.

Even if Mr. Modeste was genuinely mistaken about the facts, as
    long as he did no more than a reasonable person would have considered necessary
    to prevent the assault in the circumstances as he believed them to be, Mr.
    Modeste acted in lawful self-defence.

The evidence of the actions of Brandon Ramdeen and Dexter
    Regis,
and the response by Mr. Modeste and his friends
, is relevant to
    your determination of this issue.

You may consider the evidence that Mr. Modeste and Mr. Bengy
    had no visible injuries when they were seen later, on June 21
st
,
    2009.
You may consider the injuries to Brandon Ramdeen
. You must
    consider all of the evidence.

If you have a reasonable doubt about
whether Mr. Modeste used more force than was
    necessary
to prevent the assault, or the continuation or
    repetition by Mr. Ramdeen, you must find Mr. Modeste not guilty. Your
    deliberations on this count would be at an end. [Emphasis added.]

[45]

The
    appellant takes issue with the instruction to consider the response by Mr.
    Modeste and his friends, as well as the instruction that the jury could
    consider the injuries to Brandon Ramdeen. The appellant argues that only his response
    was relevant, not the response by his friends, and that the trial judge should
    have instructed the jury instead to consider the injuries to Ramdeen
caused
    by Modeste
.

[46]

I
    agree that these passages  read in isolation  could suggest that the inquiry
    into excessive force relates to the force used by the group, rather than the
    force used by Modeste. However, when read in context, the above passages would
    not have misled the jury. The trial judge indicated multiple times that the issue
    was whether
Modeste
used more force than was necessary to prevent an
    assault by Ramdeen or to prevent such an assault from continuing or being
    repeated. It would have been clear to the jury that its inquiry related to the
    force used by Modeste and not the force used by the group.

[47]

Further,
    the actions of the group  in other words, the surrounding circumstances  were
    relevant to the issue of what level of force a reasonable person in those
    circumstances would consider necessary. This part of the instruction amounts to
    no more than a direction to consider the circumstances.

[48]

I
    would reject this ground of appeal.

(b)

Did the trial judge err by improperly instructing the jury in regard to
    consent?

[49]

The
    appellant submits that the trial judge erred in her instruction the jury on
    consent by telling the jury to consider the stab wounds suffered by Ramdeen. In
    my view, given that consent was only relevant to whether Bengy and Modeste had
    agreed to carry out a common unlawful purpose, the jury was not permitted to
    consider whether Ramdeen consented to the different offence constituting the
    second element of liability under s. 21(2). The jury instruction was confusing
    as to whether lack of consent could be established if Ramdeen consented to the
    fight, but not to the stabbing. The trial judge erred in this regard. This
    instruction could have effectively removed consent from the jurys
    consideration.

[50]

Consent
    was relevant here to the first element of liability under s. 21(2): common
    unlawful purpose. The Crown alleged that Modeste and Bengys common unlawful
    purpose was to assault Ramdeen. If Ramdeen had consented to the fight, and his
    consent was legally valid, the common purpose could not have been unlawful,
    because where force is applied with consent, there is no assault. The trial judge
    correctly explained how consent fit into s. 21(2), stating:

In order to be satisfied that there was a common unlawful
    purpose between Edwin Modeste and Kimron Bengy, you must be satisfied beyond a
    reasonable doubt that Edwin Modeste agreed with Kimron Bengy to apply force to
    Brandon Ramdeen, without the consent of Brandon Ramdeen, knowing that Brandon
    Ramdeen was not consenting.

[51]

The
    trial judge then instructed the jury that if it was satisfied beyond a
    reasonable doubt that Modeste and Bengy agreed to apply force to Ramdeen, it must
    then consider the question of consent, as follows:

Has the Crown proven that Brandon Ramdeen did not consent to
    the application of force, and that Edwin Modeste knew that he was not
    consenting?

Lack of consent must be proven by the Crown. In this case,
    there is some evidence that Mr. Ramdeen approached Mr. Modeste, with some other
    men, in a confrontational manner. The issue of consent is therefore raised and
    must be determined by you.

A person can consent to the application of force. For example,
    if two persons agreed to arm-wrestle, they agreed to the application of force.

Of course, there is a limit to the consent. If one of the two
    persons were to punch the other person, the consent would not apply to that
    conduct of punching.

Consent never applies to a case where a defendant intends to
    cause serious bodily harm, and does cause serious bodily harm, to the other
    person.

Serious bodily harm in this context means any hurt or injury to
    the deceased that interferes with his health or comfort, and it is more than
    merely transient or trifling in nature. The consent of the deceased to fight a
    defendant is not a defence in those circumstances.

Where, as in this case, there is some evidence that Mr. Ramdeen
    intended to fight Mr. Modeste, the Crown must prove beyond a reasonable doubt
    that Mr. Modeste did not reasonably believe that Brandon Ramdeen was consenting
    to the fight, or that Mr. Modeste intended to cause serious bodily harm.

In determining the honesty of any such belief, you must
    consider the evidence as a whole, including the reasonableness of any such
    belief.

Evidence that may support an inference that Mr. Ramdeen was
    consenting to a fight includes the evidence that it was Brandon Ramdeen that
    approached Mr. Modeste, the evidence of the various witnesses who saw the fight
    as to what Mr. Ramdeen did, the evidence of Collins George and Dexter Regis
    that the men in the group were angry, the evidence that there was a discussion
    and possibly agreement between the group to look for Edwin, the evidence that
    they were prepared for a fight and looking for revenge.

However, you must also consider the evidence of witnesses that
    Mr. Ramdeen was jumped, outnumbered, and kicked and punched while he was down.
    This evidence might lead you to infer that even if there was initial consent,
    the consent did not remain, because the force that was applied was intended to
    cause serious bodily harm, or because it is unlikely that Mr. Ramdeen was
    consenting to fight five men on his own.

You should consider the injuries to Mr. Ramdeen  the stab
    wounds and the other injuries to his face and hands. You should remember that a
    person can consent to one type of fight  for example, a one-on-one fight  and
    not to another type  for example, a fight where the person is outnumbered.

What is relevant is whether Brandon Ramdeen was consenting to
    the type of force that you have found that Mr. Modeste and Mr. Bengy agreed to
    apply to him.

[52]

Based
    on the above instruction, the jury could have been left with the impression
    that it could determine the consent issue against the appellant based on a
    finding that Ramdeen did not  or could not legally  consent to being stabbed.
    In the context of party liability under s. 21(2), Ramdeens consent to the
    stabbing was not relevant. Below, I set out the appropriate approach to consent
    in the context of liability under s. 21(2), and then I discuss the error in the
    trial judges instruction on consent.

(i)

The appropriate approach to consent in the context of liability under s.
    21(2)

[53]

For
    the reasons I set out below, in my view, the issue of consent in the context of
    liability under s. 21(2) requires an assessment only of whether the victim validly
    consented to the force relating to the common purpose. When determining whether
    consent was vitiated, a trier of fact should consider only the bodily harm
    intended as part of that purpose, and the bodily harm caused in pursuit of that
    purpose. Whether the victim consented to the force forming part of the
    different, further offence, is not relevant and should not be considered.

[54]

Consent
    played a very particular role in Modestes liability under s. 21(2). If Bengy
    had argued consent, for example, the stab wounds would certainly have been relevant
    to whether any consent to fight on Ramdeens part was vitiated. However, the
    context with respect to Modeste differs because of the way consent interacts
    with the elements of liability under s. 21(2) of the
Criminal Code
.
It is helpful first to briefly review the elements of liability
    under s. 21(2), and the elements of consent.

[55]

As stated by this court in
Cadeddu
,
    at para. 53, citing
Simon
, at para. 43, there
    are three elements to party liability under s. 21(2):

(a)
agreement
:
    participation of the party in a common unlawful purpose;

(b)
offence
:
    commission of an incidental and different crime by another participant; and

(c)
knowledge
:
    foreseeability of the likelihood of the incidental crime being committed.
    [Emphasis in original.]

Under s. 21(2), the common unlawful purpose must be
    different from the offence which is actually charged:
Simpson
, at p.
    15.

[56]

A
    person can consent to the application of force that without consent, would
    amount to an assault. However, for public policy reasons, the law vitiates or
    refuses to recognize consent in certain circumstances. For consent to be
    vitiated, serious bodily harm must be both: (1) intended; and (2) caused:
R.
    v. Paice
, 2005 SCC 22, [2005] 1 S.C.R. 339, at paras. 11-12, 18.

[57]

To
    determine whether Modeste was liable as a party to manslaughter under s. 21(2),
    the jury here was first required to decide whether Modeste and Bengy agreed to
    apply force to Ramdeen and to assist each other in doing so.  Consent was
    relevant to this issue because if the jury concluded that the appellant and
    Bengy agreed to apply force to Ramdeen, but Ramdeen validly consented to the
    application of this force, Modeste and Bengys common purpose would not be
    unlawful, and there would be no basis to find Modeste liable as a party to
    manslaughter.

[58]

The
    issue of consent, therefore, turned on whether Ramdeen validly consented to the
    force that Modeste and Bengy agreed to apply; the issue was not whether Ramdeen
    consented to or was capable of consenting to the force forming the subject of
    the entire fight. As the stabbing played no part in the agreement between
    Modeste and Bengy, whether Ramdeen consented to the stabbing was entirely
    irrelevant.

[59]

This
    approach to the analysis is consistent with the requirement that the unlawful
    purpose be distinct from the incidental offence for liability to be made out
    under s. 21(2). In cases like this, where both offences arise out of one fight,
    the distinction between the common purpose and the incidental offence is often tenuous
    already. If it were open to a trier of fact to consider the effects of the incidental
    offence when determining whether the common purpose was unlawful, this could
    further confuse the two.

[60]

In
    certain factual scenarios, it would likely be obvious to a jury that the
    incidental offence is not relevant to the lawfulness of a common purpose. For
    example, imagine an accused is alleged to be party to an aggravated assault under
    s. 21(2) because she shared a common unlawful purpose to break and enter the
    victims home with the principal offender. The accused might argue that the victim
    invited her in to his home; she had no common unlawful purpose of breaking and
    entering. Whether the victim validly consented to the subsequent aggravated
    assault is obviously, in this case, irrelevant to whether the victim invited
    the accused in. Putting the assault first, suppose a theft is committed
    incidental to an alleged assault. Consent to the assault does not turn on
    whether the victim agreed to give away his property. The two are completely
    separate offences, and are treated as such.

[61]

In
    my view, the same approach should apply here. Where both offences arise out of
    one fight, the common unlawful purpose is likely to blend into the incidental
    offence as the fight escalates. For this reason, trial judges must be cautious
    to remind juries in any instruction on consent that the offences are distinct.
    While a jury is entitled to find that a victim withdrew consent partway through
    the execution of the common unlawful purpose, or that consent was vitiated
    because serious bodily harm was intended and caused, this analysis must be
    restricted to the force applied in the execution of the common unlawful
    purpose. The party did not commit the physical act of the incidental offence. Where
    the two offences are similar in nature, the trial judge must take special care
    to ensure the jury does not find lack of consent for the common unlawful
    purpose based on lack of consent to the incidental offence.

(ii)

The error in the trial judges instruction on consent

[62]

Under
    the analysis I have outlined above, on the facts of this case, the jury could
    consider whether Bengy and Modeste intended to cause serious bodily harm as
    part of their agreement, and whether they caused such harm in relation to that
    agreement, thereby vitiating any consent by Ramdeen. It could not, however,
    consider the stab wounds as part of the bodily harm intended and caused in
    deciding whether Ramdeen consented to the fight.

[63]

The
    trial judge conveyed two concepts to the jury in her instruction on consent.
    First, she explained that consent to one type of force will not apply if
    another type of force is subsequently used. She provided the example that
    consent to arm wrestle does not apply when one arm-wrestler punches the other.
    She then gave the more pertinent example that consent to a one-on-one fight
    would not apply to a five-on-one fight. Second, she explained that one cannot
    consent to the intentional infliction of serious bodily harm.

[64]

In
    the midst of explaining these limits on consent, she expressly instructed the
    jury to consider the stab wounds to Ramdeen. She then reiterated that a person
    cannot consent to certain types of force.

[65]

It
    would have been logical for the jury to put these instructions together, and
    reason that even if Ramdeen initially consented a fist fight, he did not
    consent to being stabbed, and in any event, could not legally consent to the bodily
    harm caused by the stabbing. Based on this reasoning, the jury could have
    concluded that consent was unavailable in the circumstances. While the trial
    judge referred to the force Bengy and Modeste agreed to apply in the
    instruction, the reference to the stab wounds in the context in which it was
    made likely confused the jury.

[66]

Because
    the reference to the stab wounds occurred in the context of the trial judges
    comments on how consent may be vitiated, it would have been reasonable for the
    jury to conclude, erroneously, that it should consider the stab wounds in
    determining whether Ramdeens consent was vitiated. The stab wounds constituted
    serious bodily harm caused to Ramdeen. If the jury believed the stab wounds were
    relevant, and relied on the stab wounds, it could have concluded that because
    Ramdeen was stabbed serious bodily harm must have been both intended and caused.
    This factor could have dictated its conclusions on the consent issue.

[67]

The
    trial judges instruction was the jurys only source of information on whether
    the stabbing was relevant to consent. The trial judge did not correct her
    instruction or instruct the jury that it was not to consider whether Ramdeen
    consented to the stabbing. Modestes trial counsel simply stated in closing
    submissions that people cannot consent to a fight that involves the infliction
    of serious bodily harm. The Crown did not address the issue of consent in
    great detail in closing submissions. As far as the jury was concerned, the
    stabbing and resulting bodily harm were relevant to the issue of whether
    Ramdeen consented or could have consented to the fight.

In my opinion, looking at the charge on consent as a
    whole, the instruction was inadequate. The explicit instruction to consider the
    stab wounds in this particular context was an error which necessitates this
    court allowing the appeal.

[68]

I
    would note as well that the harmless error branch of the curative proviso in
    s. 686(1)(b)(iii) does not apply. The Crown here did not argue this court
    should apply the proviso. An appellate court cannot apply the curative proviso
    on its own initiative:
R. v. Bisson
, 2010 ONCA 556, 258 C.C.C. (3d)
    338, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 400;
R. v.
    Pétel
, [1994] 1 S.C.R. 3, at p. 17. Furthermore, even if this court could
    apply the proviso, in my opinion, it would be unfair to do so without giving
    the appellant the opportunity to make submissions.

[69]

In
    any event, in the particular circumstances of this case, I would conclude the
    trial judges error was not harmless. For the reasons I have outlined above,
    the error likely misled the jury about the relevance of the stab wounds to its
    inquiry into consent. If the jury believed the stab wounds were relevant to
    consent, this belief could have had the effect of depriving the appellant of
    the benefit of the defence of consent.

[70]

While
    I would not wish to be taken as saying that consent is generally applicable in
    cases of fist fights, on the evidence led in this case, there was an air of
    reality to consent. The evidence on the second fight varied widely, and some of
    it provided an adequate foundation for this defence.

[71]

A
    defence will have an air of reality if there is evidence on each element on
    which a properly instructed jury acting reasonably could acquit if it believed
    the evidence. The court must assume that the evidence most favourable to the
    accused is true:
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at
    para. 53. The air of reality test is not designed to assess whether the
    defence is likely, unlikely, somewhat likely, or very likely to succeed at the
    end of the day:
Cinous
, at para. 54. Where there is any doubt as to
    whether the threshold is met, trial judges should resolve that doubt in favour
    of leaving the defence to the jury:
R. v. Cairney
, 2013 SCC 55, [2013]
    3 S.C.R. 410, at para. 22.

[72]

In
    this case, there was evidence on which a properly instructed jury could
    conclude that Ramdeen sought out and consented to the fight, namely that:

·

Ramdeen approached Modeste angrily, accusing him of stabbing
    James; and

·

Ramdeen initiated the physical contact with Modeste either by
    jumping on him or grabbing him.

[73]

There
    is also an air of reality to the proposition that Ramdeen consents was not vitiated.
    As stated above, consent is vitiated where serious bodily harm is (1) intended,
and
(2) caused. There are therefore two issues: (1) whether there was
    an air of reality to the proposition that Modeste did not intend to cause
    serious bodily harm as part of the common purpose; and (2) whether there was an
    air of reality to the proposition that serious bodily harm was not caused in
    relation to the common purpose.

[74]

Because
    the stabbing was not relevant to whether Ramdeen consented to the force forming
    part of the agreement, there was evidence on which a jury could conclude
    serious bodily harm was not in fact caused. The expert evidence tended to
    suggest that most of the remaining injuries to Ramdeen either were not serious
    or could have been caused when he fell to the ground after being stabbed. A
    properly instructed jury could have concluded serious bodily harm was not
    caused as part of the offence for which Modeste and Bengy had formed a common
    purpose.

[75]

Assuming
    the evidence most favourable to Modeste was true, there was also an air of
    reality to the suggestion that Modeste did not intend to cause serious bodily
    harm, based on the evidence of his knowledge and behaviour.

[76]

There
    was evidence on which a jury could conclude that before the second fight started,
    Modeste believed the first fight had ended without injury and was not aware of
    Jamess stabbing until he was accused of it. This evidence included that he
    reacted with shock when, after the second fight, Kitson Robertson told him
    Bengy had stabbed James. If he believed the first fight concluded without any
    serious bodily harm, this belief could support an inference that he might not
    have intended or anticipated serious bodily harm in the second fight.

[77]

Modestes
    behaviour in the first fight  acting as a peacemaker  combined with the
    evidence that Ramdeen and the other men approached him, could support an
    inference that Modeste was not looking for a fight.  Taking the evidence most
    favourable to Modeste, Modestes behaviour during the second fight also could
    have indicated he did not intend to cause serious bodily harm. Some of the
    witnesses testified that Modeste and Ramdeen were wrestling on the hood of a
    car and did not kick or punch each other, and that Modeste simply pulled at
    Ramdeems hands to get Ramdeen to let go of him. This evidence tended to
    suggest Modeste was not trying to cause serious bodily harm.

[78]

There
    was also evidence on which the jury could conclude that at the time the second
    fight began, the circumstances did not indicate serious bodily harm was likely
    to occur. Dexter Regis, the only person openly carrying a weapon, testified
    that he walked away from the confrontation after Modeste told him he did not
    stab James. Collins George testified that while he approached Modeste, he did
    not get involved in the fight except to separate the fighters.

[79]

Courts
    should be cautious in allowing the defence of consent to go to the jury in
    cases of fist fights with serious consequences. However, in this case, while
    the evidence supporting consent was not strong, assuming the evidence most
    favourable to Modeste to be true, there was enough evidence at least to give
    rise to a doubt as to whether the defence should go to the jury. As stated
    above, such doubt should be resolved in favour of the accused.

[80]

As
    there was an air of reality to consent, the error in the trial judges instruction
    could have had an impact on the verdict. Accordingly, I would allow the appeal
    and order a new trial on this basis.

(c)

Did the trial judge err in her instruction to the jury on the use it could
    make of Kitson Robertsons prior inconsistent statement?

[81]

The
    appellant argues that the trial judge erred because her instruction on
    Robertsons police statement could have led the jury to believe that it was not
    entitled to rely on the statement for the truth of its contents, even if it
    concluded Robertson adopted it. In my view, while the appellants complaint
    does not amount to a stand-alone error, it would have been helpful for the
    trial judge to have given a more comprehensive instruction on the consequences
    of a finding that Robertson adopted part of his statement.

[82]

The
    trial judge began her instruction on prior inconsistent statements by telling
    the jury that these instructions would inform how it could use the statements
    to assess credibility. She then continued:

An out-of-court statement made by a witness which is
    inconsistent with his or her testimony given under oath at trial may be
    admitted for the purpose of testing the credibility of the witness.
You can only use an out-of-court statement made by a
    witness to assess his or her credibility, and not for the truth of what was
    said or written on that previous occasion, except to the extent that it was
    adopted by the witness as true when he or she gave his evidence at trial.

It is for you to decide whether or not the out-of-court
    statements are inconsistent with the testimony given by the witnesses here in
    the courtroom. It is also for you to decide whether or not a witness adopted
    all or part of the statement when he or she testified before you. [Emphasis
    added.]

[83]

She
    went on to explain what is required for a witness to adopt a statement, and she
    gave examples of potentially inconsistent parts of Robertsons testimony. She concluded
    her instruction on this point as follows:

[I]t is up to you, members of the jury, to decide whether a
    prior statement is either inconsistent or is adopted by the witness as true. If
    you decide that any out-of-court statement is consistent with what the witness
    said in the courtroom, then you should ignore the statement and simply consider
    the witness evidence as you would the evidence of any other witness. However,
    if you decide that the out-of-court statement is inconsistent with what the
    witness said here under oath, then you may use the statement to decide whether
    or not you believe the evidence of the witness.

Once you decide whether or not you believe the sworn testimony
    of the witness given in this courtroom, then you must not make any further use
    of the out-of-court statement, because it is not evidence which proves the
    matters contained within it.

[84]

In
    my view, the trial judges instruction to the jury did not clearly set out that
    if the jury concluded a witness adopted a prior inconsistent statement, or a
    portion thereof, the adopted portion of the statement would become part of the
    witnesss evidence. It would then be for the jury to assess the evidence as a
    whole, inconsistencies and all. Her instruction suggested instead that
    statements could be either inconsistent, or adopted. A more thorough
    instruction would have been helpful here, given the importance of Kitson
    Robertsons evidence to the defence and defence counsels concern about the
    instruction in this regard.

[85]

When
    a witness adopts a prior inconsistent statement, the statement becomes part of
    the witnesss evidence at trial to the extent it is adopted:
R. v.
    McCarroll
, 2008 ONCA 715, 238 C.C.C. (3d) 404, at para. 39. The
    inconsistencies do not disappear when the statement is adopted. It remains for
    the trier of fact to assess the witnesss evidence as a whole, and to decide
    what weight to give the evidence in light of the inconsistencies.

[86]

The
    trial judges instruction did not give the jury any guidance on this point. As
    stated above, the trial judge informed the jury, correctly, that it was not
    entitled to use a prior inconsistent statement for its truth, except to the
    extent that a witness has adopted it. The trial judge, however, did not go on
    to explain that once a witness adopts a prior inconsistent statement, that
    statement becomes part of the witnesss evidence to the extent it is adopted. It
    could then be relied on for the truth of its contents, just like the rest of
    the witnesss evidence. The trial judge should have explained that at that
    point, it would be for the jury to decide how to address the inconsistency, any
    reasons for the inconsistency, and what weight to give his evidence as a
    result.

[87]

Modestes
    counsel expressed concern after the trial judge read out this part of the
    charge that the charge did not make it sufficiently clear that the jury could
    conclude Roberson adopted his police statement on this point, and if it did so,
    the statement would become part of his evidence.

[88]

This
    evidence was crucial to the defence. Robertsons evidence was the main evidence
    on the foreseeability element of liability under s. 21(2). If the jury accepted
    that as he said in his police statement, Robertson did not tell Modeste that
    Bengy stabbed James until they were in the car, there was no direct evidence
    that showed that before the second fight, Modeste knew Bengy had a knife.
    Similarly, there was no direct evidence showing that he knew James had been
    stabbed until immediately before the second fight. The absence of this
    evidence, combined with the evidence of Modestes shock upon learning of
    Jamess stabbing, was an important part of the defence case.

Conclusion

[89]

In
    all the circumstances, and for the reasons stated, I would allow the appeal and
    order a new trial.

M. Tulloch J.A.

I agree. C.W. Hourigan
    J.A.

Strathy C.J.O. (Dissenting):

Introduction

[90]

I
    agree with my colleagues disposition of all grounds of appeal, other than the
    trial judges instruction on consent in relation to s. 21(2) of the
Code
.
    As I see no error in that instruction, I would dismiss the appeal.

[91]

To
    explain my reasons, I will: (1) review the Crown and defence theories on s.
    21(2) liability; (2) review the trial judges instructions on s. 21(2); and (3)
    summarize the parties submissions on this issue. I will then (4) explain why,
    in my view, the trial judges instruction was correct.

(1)

The Crown and Defence theories

(a)

Crown Theory

[92]

The
    Crown theory, as summarized by the trial judge, was that Modeste, together with
    Bengy and others, engaged in a common assault on Ramdeen, in which Ramdeen was
    unlawfully killed in circumstances where Modeste should have foreseen that
    Ramdeens death would be a probable consequence of the assault.

[93]

On
    this theory, Ramdeen approached Modeste and Alexander, accused them of stabbing
    James, and in response to this accusation, Modeste, Alexander, Julien, Benjamin
    and Bengy engaged in a five-on-one beating of Ramdeen. At the moment the
    beating commenced, Modeste and the others formed a common intention to assault
    Ramdeen. Bengy was part of the group and had a knife that he used to stab
    Ramdeen in the chest.

[94]

Ramdeens
    other injuries, so the Crown theory went, could not be explained by falling on
    his face, but were the result of being kicked, beaten and punched, as observed
    by as many as seven witnesses.

[95]

Ramdeen
    did not consent to a fight with five men. Modeste was not acting in
    self-defence, had not been assaulted by Ramdeen and a five-on-one beating was
    not a proportionate response to Ramdeens actions.

[96]

It
    was reasonably foreseeable that Ramdeen would be unlawfully killed as a result
    of a five-on-one beating. Ramdeen had accused Modeste and/or Alexander of
    stabbing James. As Modeste had already assisted in breaking up the fight
    involving Alexander and James, he ought to have foreseen these consequences.

(b)

Defence theory

[97]

The
    defence theory was that the evidence raised a reasonable doubt about how the
    fight began and whether it was the Ramdeen group that confronted Modeste in a
    threatening manner to exact retribution for the stabbing of James. This group
    had the motive, the numbers and the weapons to start a fight. Once the Ramdeen
    group started the fight, everyone joined in the brief melee. That melee erupted
    after Ramdeen and his group assaulted Modeste and not the other way around. The
    absence of injuries below Ramdeens neck confirmed that the beating, kicking
    and punching described by the Crown had simply not occurred.

[98]

The
    defence theory was that even if the jury found that Modeste struck Ramdeen, the
    evidence raised a reasonable doubt about whether Ramdeen had consented to the
    fist fight. Even in the absence of consent, the evidence raised a reasonable
    doubt that Modeste acted in self-defence.

[99]

Finally,
    the defence argued, there was no basis to conclude that Modeste knew or ought
    to have known that Bengy would fatally stab Ramdeen. His conduct after the fact
    showed that he was confused, shocked and angry about what happened and this
    evidence could be used to determine his knowledge and state of mind during the
    fight.

(2)

The trial judges instructions on s. 21(2)

[100]

As it is my view
    that the trial judges instructions were correct, and provide a complete answer
    to the appellants submissions, it is necessary that I set them out at some
    length.

[101]

The trial judge
    gave the jury a detailed instruction on the count of manslaughter of Ramdeen
    under s. 21(2) in relation to the appellant. She provided them with a decision
    tree concerning this count, as she did with the counts against Bengy. She also
    provided them with a copy of her instructions. Her draft instructions were
    reviewed with counsel in advance of the charge and her final instructions
    incorporated some of the comments made by counsel.

[102]

The trial judge
    began by explaining the basis of liability under s. 21(2), describing the
    requirements of agreement, offence and knowledge, and referred the jury to the decision
    tree. She identified the common unlawful purpose as the assault of Ramdeen and
    explained that the Crown was required to prove that in pursuing the common
    unlawful purpose, Bengy had committed a different offence, namely unlawfully
    causing Ramdeens death. She explained that the Crown was also required to
    prove that the appellant knew or ought to have known that a probable
    consequence of carrying out the assault was that Bengy would unlawfully cause
    Ramdeens death.

[103]

I note,
    parenthetically, that in instructing the jury that the appellant was required
    to foresee that death would ensue, the trial judge overstated the Crowns
    burden on this element, which is foresight of non-trivial bodily harm, not
    death:
R. v. Jackson
, [1993] 4 S.C.R. 573, at pp. 586-87. This error,
    corrected later in the instruction, enured to the appellants benefit.

[104]

The judge then
    gave a detailed review of each of the three elements of s. 21(2) liability.

[105]

She again
    identified the first element as an agreement to assault Ramdeen and to help
    each other to do so. She explained that the agreement could arise on the spur
    of the moment and at the time the offence was committed. She reviewed the
    circumstances they could consider in determining whether there was an agreement
    and cautioned them they should consider whether Bengy was on an enterprise of
    his own, unrelated to any agreement. She told them that in determining whether
    there was an agreement between the appellant and Bengy, and what it involved,
    they could consider all the evidence, including their conduct before, at the
    time of, and after the offence charged was committed.

[106]

The trial judge
    then explained that it is not enough that there be a common goal, the goal must
    be unlawful. She repeated the definition of assault, which she had given
    earlier, as meaning the application of force, directly or indirectly, to another
    person without their consent. She explained that force can be justified, and
    not unlawful, if it is applied with consent, or if it is applied in
    self-defence.

[107]

She then told
    the jury:

In order to be satisfied that there was a common unlawful
    purpose between Edwin Modeste and Kimron Bengy, you must be satisfied beyond a
    reasonable doubt that Edwin Modeste agreed with Kimron Bengy to apply force to
    Brandon Ramdeen, without the consent of Brandon Ramdeen, knowing that Brandon
    Ramdeen was not consenting. You must also be satisfied beyond a reasonable
    doubt that Mr. Modeste was not acting in self-defence.

[108]

Summarising the
    components of the first element of s. 21(2) liability, common unlawful purpose,
    she told the jury that they must be satisfied: (1) that Modeste and Bengy
    agreed to apply force intentionally to Ramdeen and to help each other to do so;
    (2) that Modeste knew that Ramdeen did not consent to the application of force,
    or that Modeste intended to cause serious bodily harm; and (3) that Modeste was
    not justified in using force to defend himself.

[109]

The trial judge
    then instructed the jury that they were required to determine each of these
    elements separately to decide whether there was an agreement to pursue a common
    unlawful purpose.

[110]

She then broke
    down the three components of the agreement element and gave the jury a
    further explanation of each. She reviewed in detail the evidence relevant to
    each element.

[111]

First, she
    repeated the Crowns obligation to prove that the appellant and Bengy agreed to
    intentionally apply force to Ramdeen and reviewed the evidence they were to
    consider, including the evidence of the seven witnesses to the brawl, as well
    as the evidence of the appellants words and demeanour after he learned of the
    stabbing. In the context of this review, the trial judge reminded the jury that
    the issue is whether there was an agreement to do something other than the
    stabbing.

[112]

She then told
    the jury that if they found the Crown had not proven an agreement to apply
    force to Ramdeen and to assist each other to do so, they must find the
    appellant not guilty. If they were so satisfied beyond a reasonable doubt, they
    would consider the next question: Has the Crown proven that Brandon Ramdeen
    did not consent to the application of force, and that Edwin Modeste knew that
    he was not consenting?

[113]

The trial judge
    explained that lack of consent must be proven by the Crown. She added that
    because there was evidence that Ramdeen, along with others, had approached the
    appellant in a confrontational manner, the issue of consent had been raised.

[114]

She explained
    that a person can consent to the application of force, and used the example of
    arm wrestling. As this particular part of the instruction is impugned by the
    appellant, I will quote verbatim:

A person can consent to the application of force. For example,
    if two persons agreed to arm-wrestle, they agreed to the application of force.

Of course, there is a limit to the consent. If one of the two
    persons were to punch the other person, the consent would not apply to that
    conduct of punching.

Consent never applies to a case where a defendant intends to
    cause serious bodily harm, and does cause serious bodily harm, to the other
    person.

Serious bodily harm in this context means any hurt or injury to
    the deceased that interferes with his health or comfort, and that is more than
    merely transient or trifling in nature. The consent of the deceased to fight a
    defendant is not a defence in those circumstances.

Where, as in this case, there is some evidence that Mr. Ramdeen
    intended to fight Mr. Modeste, the Crown must prove beyond a reasonable doubt
    that Mr. Modeste did not reasonably believe that Brandon Ramdeen was consenting
    to the fight, or that Mr. Modeste intended to cause serious bodily harm.

In determining the honesty of any such belief, you must
    consider the evidence as a whole, including the reasonableness of any such
    belief.

[115]

The trial judge
    then reviewed the evidence that might support the inference that Ramdeen was
    consenting to a fight. She instructed the jury:

Evidence that may support an inference that Mr. Ramdeen was
    consenting to a fight includes the evidence that it was Brandon Ramdeen that
    approached Mr. Modeste, the evidence of the various witnesses who saw the fight
    as to what Mr. Ramdeen did, the evidence of Collins George and Dexter Regis
    that the men in the group were angry, the evidence that there was a discussion
    and possibly agreement between the group to look for Edwin, the evidence that
    they were prepared for a fight and looking for revenge.

However, you must also consider the evidence of witnesses that
    Mr. Ramdeen was jumped, outnumbered, and kicked and punched while he was down.
    This evidence might lead you to infer that even if there was initial consent,
    the consent did not remain, because the force that was applied was intended to
    cause serious bodily harm, or because it is unlikely that Mr. Ramdeen was
    consenting to fight five men on his own.

You should consider the injuries to Mr. Ramdeen  the stab
    wounds and the other injuries to his face and hands. You should remember that a
    person can consent to one type of fight  for example, a one-on-one fight  and
    not to another type  for example, a fight where the person is outnumbered.

What is relevant is whether Brandon Ramdeen was consenting to
    the type of force that you have found that Mr. Modeste and Mr. Bengy agreed to
    apply to him.

You should consider all of the evidence with respect to the
    start of the fight, the timing of Mr. Ramdeens involvement, the timing of Mr.
    Modestes involvement, and the level of violence.

Remember that you may accept, some, none or all of any witness
    evidence in deciding this issue.

If the Crown has not proven beyond a reasonable doubt that Mr.
    Ramdeen was not consenting, and that Mr. Modeste knew that Mr. Ramdeen was not
    consenting to the force that Mr. Modeste and Mr. Bengy agreed to apply, you
    must find Mr. Modeste not guilty. Your deliberations on this count would be at
    an end.

If the Crown has proven beyond a reasonable doubt that Mr.
    Ramdeen did not consent to the type of force that Mr. Modeste and Mr. Bengy
    agreed to apply to him, that Mr. Modeste knew that he was not consenting, or if
    the Crown has proven that Mr. Modeste intended to cause serious bodily harm to
    Mr. Ramdeen and did, alone or with others, cause serious bodily harm, there can
    be no consent in law.  You would then move on to consider the next question.

[116]

After dealing
    with consent in relation to s. 21(2), the trial judge instructed the jury on
    the second way in which the application of force could be justified, namely if
    the force was applied in self-defence. She told them that self-defence would
    only arise if they had concluded that Modeste intentionally applied force to
    Ramdeen without his consent. If Modestes goal in applying force was to defend
    himself, he would not have been pursuing a common unlawful goal. She then
    proceeded to instruct the jury on self-defence in relation to the s. 21(2)
    count.

[117]

Following this
    instruction, the trial judge turned to the second element of liability under s.
    21(2), which she explained requires proof that Kimron Bengy, but not Edwin
    Modeste, caused the death of Brandon Ramdeen by an unlawful act, and did so in
    carrying out the original agreement. She explained again that party liability
    under s. 21(2) is based on two or more persons agreeing to one unlawful
    purpose, where one of the participants commits a different offence, which she
    explained in this case was either murder or manslaughter.  She added:

The offence that is committed must be a crime other than the
    one that those involved agreed on in the first place. The offence committed, in
    other words, must be one that the members of the original agreement did not set
    out to commit, but one that still took place in the course of carrying out
    their original agreement or plan.

[118]

The trial judge
    then reviewed the evidence on this issue, concluding that if the jury was
    satisfied beyond a reasonable doubt that Bengy unlawfully caused Ramdeens
    death, they were required to determine whether he did so in the course of
    pursuing the common goal of assaulting Ramdeen.

[119]

Finally, the
    trial judge told them that they must consider the last element, whether Modeste
    knew or ought to have known that Bengy, in carrying out the original agreement
    to assault, would carry out an act that was unlawful and which a reasonable person
    would think likely to put another person at risk of harm or injury that is more
    than brief or minor. After explaining this requirement, and reviewing some of
    the evidence they might consider, the trial judge told the jury that if they
    were satisfied beyond a reasonable doubt that the appellant knew or ought to
    have known that the commission of the offence of murder or manslaughter by an
    unlawful killing of Ramdeen by Bengy would be a probable consequence of
    carrying out the original agreement to assault Ramdeen, they were required to
    find the appellant guilty of manslaughter.

(3)

The parties submissions on appeal

[120]

The appellant
    asserts two errors in the instruction on consent.

[121]

His first
    submission is that the trial judge effectively told the jury that there could
    be no consent to punching by saying:

A person can consent to the application of force. For example,
    if two persons agreed to arm-wrestle, they agreed to the application of force.

Of course, there is a limit to the consent. If one of the two
    persons were to punch another person, the consent would not apply to that
    conduct of punching.

[122]

The appellant
    submits that by saying the consent would not apply to that conduct of
    punching the trial judge was telling the jury that someone cannot consent to a
    fistfight.

[123]

The appellants
    second submission was that by telling the jury they could consider the stab
    wounds and other injuries Ramdeen suffered, the trial judge took consent away
    from the jury, because Ramdeen could not consent to being stabbed.

[124]

The Crown
    submission was that the trial judge had to focus the jurys attention on all
    the evidence, including the stabbing, because the evidence was all over the map
    as to who entered the fray, when they did so and when and how the victims
    injuries were sustained. There was even a suggestion that the stabbing took
    place
before
the other injuries. The trial judge was required to craft
    an instruction that focused the jurys attention on all the evidence.

(4)

Analysis

[125]

An accused is
    guilty of assault under s. 265(1)(a) of the
Code
if without the
    consent of another person, he applies force intentionally to that other person,
    directly or indirectly.

[126]

Therefore, in
    order to prove that Modeste and Bengys common purpose was unlawful (i.e.
    contrary to s. 265 of the
Code
), the Crown had to establish that the
    force applied in pursuing the common purpose was applied without Ramdeens
    consent. If Ramdeen had consented to the force that Modeste and Bengy agreed to
    apply, and his consent was not vitiated, then the common purpose would not be
    unlawful, as it would not constitute an assault.

[127]

The unlawful
    purpose must be different from the offence that is actually charged:
R. v.
    Simpson
, [1988] 1 S.C.R. 3, at p. 15;
R. v. Young
, 2009 ONCA 549,
251 O.A.C. 18
. This distinction is required because of
    the fundamental difference between party liability under s. 21(2) and
    liability as an aider or abettor under s. 21(1):
Young
, at para. 13.
    In my view, the jury instruction was clear in this respect.

[128]

Although my
    colleagues reasons do not address the appellants first submission, I will
    deal with it briefly.

[129]

While it would
    have been an error to instruct the jury that there could be no consent to a
    punch, the trial judge did not give that instruction. The example of arm
    wrestling was used in the context of telling the jury that while a person could
    consent to the application of some force, it did not mean that they were
    consenting to a greater amount of force. In the context of the detailed
    instructions they were given, I do not see how the jury could have understood
    that the judge was telling them there could be no consent to a fistfight. The
    example was simply used to illustrate what she later told the jury  a person
    can consent to one type of fight  a one-on-one fight, for example  but it did
    not mean that they were consenting to a five-on-one fight. This instruction was
    apt, because there was evidence that the fight might have been as many as
    five-on-one against Ramdeen. The appellant conceded that if this was the
    meaning of her instruction, there was no error. In my view, that was the
    meaning of the instruction and I see no error.

[130]

I now turn to
    the appellants second submission  that the trial judge took consent away from
    the jury by telling them they could consider the stab wounds.

[131]

I do not agree
    that because the trial judge told the jury to consider the stab wounds they
    could have found that Ramdeen did not consent to being stabbed and could have
    understood this to be a sufficient basis to determine the consent issue against
    the appellant. Nor could they have concluded that because Ramdeen was stabbed
    serious bodily harm must have been intended and caused by Modeste, thereby
    removing consent from their consideration.

[132]

In my view, the
    trial judge kept the jury firmly focused on the distinction between the common
    unlawful purpose and the different offence, making it clear to them that the
    defence of consent applied to the common unlawful purpose. Her instructions on
    consent were, both structurally and contextually, part of her instruction on the
    common unlawful purpose and the jury could not have been confused into thinking
    that the discussion of consent was in relation to the stabbing by Bengy.

[133]

The trial judge
    told the jury that [w]hat is relevant is whether Brandon Ramdeen was
    consenting to the type of force that you have found that Mr. Modeste and Mr.
    Bengy
agreed to apply to him
 (emphasis added). She did not suggest
    the stabbing was force that Modeste and Bengy agreed to apply. The instruction
    on consent was directed only to the first element of s. 21(2) liability and the
    jury would have understood this.

[134]

The trial judge
    properly instructed the jury that consent would not be a defence if the force
    applied (a fight where the person is outnumbered) exceeded the force that
    Ramdeen consented to (a one-on-one fight). She also properly instructed them
    that consent never applies to the application of force that is intended to
    cause, and does cause, serious bodily harm:
R. v. Paice
, 2005 SCC 22,
    [2005] 1 S.C.R. 339, at paras. 11-12;
R. v. McDonald
, 2012 ONCA 379,
292 O.A.C. 188,
at paras. 26-28, leave to appeal to S.C.C.
    refused, [2012] S.C.C.A. No. 359. She made this clear to the jury when she told
    them:

If the Crown has proven beyond a reasonable doubt that Mr.
    Ramdeen did not consent to the type of force that Mr. Modeste and Mr. Bengy
    agreed to apply to him, that Mr. Modeste knew that he was not consenting, or if
    the Crown has proven that Mr. Modeste intended to cause serious bodily harm to
    Mr. Ramdeen and did, alone or with others, cause serious bodily harm, there can
    be no consent in law.

[135]

In determining
    whether the force applied exceeded the consent given, or whether the appellant
    intended to cause and did cause serious bodily harm, the jury was properly
    instructed to consider all the evidence. Indeed, in the pre-charge discussions,
    counsel for the appellant suggested that the jury could be instructed to
    consider the timing of Ramdeens injuries and whether Modeste participated in
    the fight after the stab wounds were inflicted.

[136]

It was in
this
context that the trial judge instructed them that they could consider: (a) the
    evidence that Ramdeen was jumped, outnumbered, and kicked and punched while he
    was down; (b) the stab wounds and the other injuries to his face and hands;
    and (c) all of the evidence with respect to the start of the fight, the timing
    of Mr. Ramdeens involvement, the timing of Mr. Modestes involvement and the
    level of violence.

[137]

This evidence
    was relevant to determine whether the force agreed to be applied exceeded the
    force to which Ramdeen consented and to determine whether Modeste intended to
    cause serious bodily harm and whether serious bodily harm was in fact caused.
    The stabbing, when taken together with all the evidence referred to by the
    trial judge, including the evidence of Ramdeens other injuries, was part of
    the evidence that the jury was entitled to use to decide how the fight
    unfolded. Their determination of how the fight unfolded is the basis for their
    determination of whether the force that the appellant and Bengy agreed to apply
    exceeded what Ramdeen consented to and whether the appellant intended to cause
    serious bodily harm.

[138]

The jury would
    have understood that the issue was not whether Ramdeen consented to the
    stabbing (which the instruction made clear he could not), but whether the level
    of violence of the assault, as evidenced by the stab wounds and Ramdeens other
    injuries, exceeded what he had consented to or evidenced a common intention
    shared by the appellant and Bengy to cause serious bodily harm.

[139]

For these
    reasons, it is my view that the trial judge made no error and I would dismiss
    the appeal.

Released: GRS JUNE 8, 2015

G.R. Strathy C.J.O.