



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2016 ONCA 684

DATE: 20160916

DOCKET: C58688 and C58822

Hoy A.C.J.O., Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyrone Chambers and Joshua Warner

Appellants

Richard Litkowski, for the appellant Tyrone Chambers

Delmar Doucette, for the appellant Joshua Warner

Christine Bartlett-Hughes,
    for the respondent

Heard:  June 14, 2016

On appeal from the convictions entered by Justice James
    A. Ramsay of the Superior Court of Justice, sitting with a jury, on November
    15, 2013, and the sentence imposed on December 29, 2013.

Hoy A.C.J.O.:

1.       OVERVIEW

[1]

The appellants, Joshua Warner and Tyrone Chambers, attended a house
    party each armed with a loaded handgun. During a confrontation with other
    guests, Chambers and then Warner drew his gun. Three people were shot.
    Tragically, Brandon Musgrave was killed by a shot to his head. Ted Tsibu-Darkoh
    and Kauner Chinambu were wounded.

[2]

The appellants were charged with second degree murder and two counts of
    aggravated assault. Warner, through counsel, admitted that he shot and wounded
    Tsibu-Darkoh and thus was guilty of aggravated assault of him. The key issues
    at trial were which of Warner and Chambers had actually shot Musgrave and
    Chinambu, and whether the non-shooter was also guilty as an aider or abettor.

[3]

The jury found both Warner and Chambers guilty of second degree murder
    of Musgrave and aggravated assaults of Tsibu-Darkoh and Chinambu.

[4]

Warner appeals his convictions for the murder of Musgrave and aggravated
    assault of Chinambu. Chambers appeals his convictions on all counts. The
    appellants have raised a number of issues on their appeal. I would give effect
    to the following grounds:


I.

The trial judge misdirected the jury on the
mens rea

for
    aiding and abetting murder.


II.

The trial judge erred by failing to leave manslaughter as a lesser
    included offence to the murder charges in the case of the aider or abettor.


III.

The trial judge improperly instructed the jury on the use of the
    appellants post-offence conduct.

[5]

It is not necessary to address the remaining issues raised by the
    appellants.

2.       BACKGROUND

[6]

As I would order a new trial, I will provide only a brief summary of the
    pertinent evidence.

[7]

The shooting happened at a cover-charge house party, which began during
    the evening of March 12, 2010, in Hamilton, Ontario. The party was hosted by
    several students at Columbia International College (CIC) and most of the
    guests were CIC students. However, the party had been advertised on Facebook
    and was open to the public.

[8]

Warner and Chambers went to the party together. They were not students
    at CIC. Chambers testified that he had known Warner for almost ten years but
    said that they were not close friends.

[9]

Both Chambers and Warner were carrying loaded handguns. Both were
    subject to firearms prohibitions.

[10]

Around 1:00 a.m. on March 13, Chambers got into an argument with Wesley
    Adi, who was playing music from his iPod into the speaker system. Chambers
    asked Adi to change the music but Adi declined. The argument escalated and
    Chambers suggested that they take it outside.

[11]

One of the hosts, Yussuf Yanni, testified that he intervened in the
    argument and tried to make Chambers leave the house. Chambers told Yanni to
    shut up, which caused him to challenge Chambers as to his authority to tell
    Yanni what to do.

[12]

Chambers pulled out something covered in a black sock which, according
    to several witnesses, he gripped like a gun. Some witnesses described Chambers
    saying I could end this fucking party right now. Adi testified that Yanni
    then challenged Chambers to shoot him.

[13]

Tsibu-Darkoh testified that Warner was standing beside Chambers as this
    was unfolding. Another witness said that Warner moved over to Chambers side
    during the argument.

[14]

Warner pulled out his gun shortly after Chambers.

[15]

By then, Chambers, Warner, Musgrave, Tsibu-Darkoh, Chinambu, and several
    other guests were in or at the threshold of the kitchen. Chambers gave Chinambu
    a harsh look and, in response, Chinambu challenged Chambers verbally. Chinambu
    leaned off the kitchen counter, planning to make a move.

[16]

Three shots were fired in the kitchen. Chinambu was shot in the chest
    and Musgrave in the head. The shot that hit Musgrave was fatal. The third shot
    hit Tsibu-Darkoh in the arm.

[17]

The forensic evidence confirmed that all three victims were shot by
    .22-calibre Sniper Subsonic bullets. A firearms expert who testified at trial
    could not say if all three bullets had been fired from the same gun. Chambers
    claimed that he was carrying a .380-calibre weapon on the night of the party.
    He also testified that Warner had a .22-calibre weapon and that Chambers had
    given him bullets for that weapon a couple of weeks before the shooting.

[18]

Chambers and Warner fled together. Chambers testified that he hid his
    gun in a bush at the side of a house on the south side of Canada Street. He did
    not know what Warner did with his gun.

[19]

Chambers and Warner parted ways at a GO Station.

[20]

Chambers brother picked him up in a cab and they went to Chambers
    brothers hang out spot, where Chambers spent the night. According to
    Chambers, he told his brother that he had gotten into an argument at a party
    and that Warner had just turned around and started shooting everybody.

[21]

Chambers spent the next two nights at the residence he shared with his
    girlfriend. During that period, he learned from Warner that one of the persons
    shot was unlikely to survive. According to Chambers, during that period he also
    spoke to a lawyer in Toronto, whom he found on the Internet but whose name he
    could not remember. Chambers testified that the lawyer told him that he would
    not be able to clear his name even though Chambers told him that he had not
    done anything. Chambers fled to Halifax, where he was arrested in April 2010.

[22]

After parting ways with Chambers, Warner left the GO Station and waited
    for his regular cabbie to pick him up and take him to his grandmothers house. 
    He lay in the back seat of the cab. At first he told the cabbie that he was
    tired but later he said to the cabbie that he did not want the police to see
    him. The cabbie had heard about the shooting at the party and asked Warner if
    he had been involved. Warner told the cabbie that Chambers was the shooter but
    that he was worried because he had been with Chambers at the time.

[23]

Warner fled to Guyana. He was arrested there and returned to Canada in April
    2011.

[24]

About a month after the shooting, someone found a .22-calibre revolver
    near a house on Canada Street. Chambers testified that this was not the handgun
    he was carrying. He also claimed that the gun recovered from Canada Street
    looked like a gun Warner owned and had shown him a few weeks before the
    shooting.

3.       THE TRIAL

[25]

Warner and Chambers were charged with second degree murder of Musgrave
    and aggravated assaults on Tsibu-Darkoh and Chinambu. They were tried together.
    The trial lasted 24 days.

[26]

Most of the witnesses were not able to say who shot the three victims.
    However, Chambers testified and said that he did not fire any shots and did not
    know that Warner had a gun with him. Chambers said he drew his gun to defend
    himself against a crowd of people aggressively gathering around him.

[27]

Warner did not testify. However, in his closing address to the jury,
    Warners counsel conceded that Warner had shot Tsibu-Darkoh.

[28]

The jury deliberated for approximately 16 hours over two days before
    returning a verdict. Both appellants were found guilty on all counts.

4.       INSTRUCTIONS ON
MENS REA
FOR AIDING AND ABETTING

[29]

The appellants argue that the trial judge failed to properly instruct
    the jury with respect to the essential elements for aiding and abetting in an
    offence. In particular, they submit that he failed to instruct the jury that
    the appellants had to know that the principal offender intended to murder
    Musgrave to be found guilty as an aider or abettor on the murder charge.

[30]

During oral submissions, counsel for Warner and Chambers also submitted
    that the trial judge misdirected the jury on the essential elements of
    liability as an aider or abettor to an aggravated assault.

[31]

The Crown rejects these submissions and argues that the trial judges
    instructions were sufficient when considered in light of the evidence in this
    case. However, the Crown concedes that if the trial judges instructions on the
    knowledge requirement were deficient then the curative proviso cannot be
    applied.

[32]

I agree with the appellants that the trial judge misdirected the jury on
    the knowledge component of aiding and abetting the commission of a murder.
    However, I conclude that the instructions were sufficient in respect of aiding
    and abetting aggravated assault.

[33]

To explain my conclusions, I will first discuss the elements of aiding
    and abetting the commission of an offence. Then I will summarize the relevant
    portions of the trial judges charge. Finally I will provide my reasons for
    concluding that the instructions were insufficient for the murder charges but
    were adequate for the aggravated assault charges.

4.1.    Elements of Aiding and Abetting an Offence

[34]

Under s. 21(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, a
    person may be found guilty as a party to an offence if he or she (a) actually
    committed it; (b) did or omitted to do anything for the purpose of aiding any
    person to commit it; or (c) abetted any person in committing it. An aider or
    abettor is just as culpable as a principal offender for purposes of imposing
    criminal liability:
R. v. Maciel
, 2007 ONCA 196, 219 C.C.C. (3d) 516,
    at para. 85.

[35]

However, the
actus reus
and
mens rea
for aiding and
    abetting are distinct from those of the principal offence. The elements for
    aiding and abetting were defined by the Supreme Court in
R. v. Briscoe
,
    2010 SCC 13, [2010] 1 S.C.R. 411, and by this court in
Maciel
and
R.
    v. Helsdon
, 2007 ONCA 54, 84 O.R. (3d) 544.

[36]

The
actus reu
s of aiding or abetting is doing (or, in some
    circumstances, omitting to do) something that assists or encourages the
    perpetrator to commit the offence:
Briscoe
, at para. 14.

[37]

The
mens rea
of aiding and abetting has two elements: intent
    and knowledge. To be found liable as an aider or abettor, an accused must have
    intended to assist or encourage the perpetrator to commit the crime:
Briscoe
,
    at para. 16;
Maciel
, at para. 87;
Helsdon
, at para. 43.

[38]

An accused can only intend to assist or encourage in the commission of a
    crime if she knows which crime the perpetrator intends to commit. Therefore,
    the Crown must prove that an alleged aider or abettor knew that the perpetrator
    intended to commit the crime, although she need not know precisely how it will
    be committed:
Briscoe
, at para. 17;
Maciel
, at para. 89.

[39]

Where an accused has been charged with having aided or abetted in the
    commission of a murder, the Crown must prove that she knew that the perpetrator
    had the intent required for murder:
Maciel
, at para. 88.  In
Briscoe
,
    at para. 18, the Supreme Court clarified that an aider or abettor does not need
    to have the
mens rea
for murder personally.

4.2.    The Trial Judges Charge on Aiding and Abetting

[40]

It was not disputed that whoever shot Musgrave was guilty of murder, and
    the trial judge instructed the jury accordingly.

[41]

The trial judge initially agreed with counsel for Warner and Chambers
    that there was no basis for leaving with the jury the possibility of finding
    whoever of Warner or Chambers did not shoot liable as an aider or abettor.
    However, the afternoon before he delivered his charge, he advised counsel that
    he had changed his mind. In a brief exchange, Chambers counsel reminded the
    trial judge that the aider or abettor must have knowledge of the principals
    intention, and that there were two separate intentions in play: to commit
    murder and to commit an aggravated assault.

[42]

It is unclear whether the trial judge provided a copy of his charge to
    counsel in advance of charging the jury.

[43]

The trial judge first addressed the elements of aiding an offence. He
    explained that an aider must do something for the purpose of helping another
    commit the specific offence and must do so meaning to help the principal
    offender. Then he turned to the knowledge requirement:

The aider would have to know that the shooter intended to
    shoot. In addition, to be guilty of murder as an aider, he would have to have
    the required state of mind for murder that I have already told you about. If he
    was only intending to help the shooter keep the crowd at bay, not knowing that
    the shooter would actually shoot, the other accused would not be guilty as an
    aider.

[44]

The abetting portion of the charge focused on Chambers. The trial judge
    explained that an abettor must do something for the purpose of encouraging
    another to commit the specific offence charged. Then he added the following:

For anyone to be guilty of murder as an abetter he must in
    addition have the state of mind required for murder which I have set out
    already. His act must be meant to encourage, and it must be meant to encourage
    the specific offence. If you find that Mr. Chambers pulled out his gun and said
    I can end this party right now, and that he intended by that to encourage Mr.
    Warner to shoot anybody who makes a move, and Mr. Warner did just that,
    Chambers would be guilty as an abetter. If he did not mean to convey that
    message, or he did not know that Warner would actually shoot, Chambers would
    not be guilty as an abetter.

[45]

After the trial judge completed his charge to the jury, counsel for
    Chambers and Warner objected to the charge on aiding and abetting. Among other
    things, Chambers counsel argued that there was no evidence that Chambers
    shared Warners intent to kill Musgrave or knew of that intent. Warners
    counsel adopted Chambers counsels submissions and requested that
    clarification be given to the jury with respect to what is constituted by a
    shared intention for murder.

[46]

The trial judge recalled the jury and instructed them as follows:

I just want to make it clear, Ive told you that a person can
    commit an offence in one of three ways: one, as a principal, I didnt use that
    word, the person who shot someone and hit some one is guilty as a principal;
    or, a person can guilty as an aider; or, a person could be guilty as an
    abetter, which means that on, there could be more than one person guilty on any
    count, but there could only be one person guilty as a principal on any count,
    right? Okay? All right.

[47]

He declined to otherwise clarify his charge on aiding and abetting.

4.3.    Trial Judge Misdirected the Jury on the Knowledge
    Component of Aiding or Abetting Murder

[48]

I agree with the appellants that the trial judge misdirected the jury on
    the knowledge component of the
mens rea
for aiding or abetting murder.

[49]

In the case of aiding, the trial judge directed only that the aider
    would have to know that the shooter intended to shoot. In addition, to be
    guilty of murder as an aider, he would have to have the required state of mind
    for murder that I have already told you about.

[50]

Similarly, in the abetting portion of the charge, the trial judge
    instructed the jury that if Chambers actions were intended to encourage Warner
    to shoot and Chambers knew that Warner would actually shoot anybody who made a
    move then Chambers would be guilty as an abettor. The trial judge did not
    direct the jury that Chambers must have known that Warner had the intent
    required for murder.

[51]

Telling the jury that an aider or abettor needed to know that the
    principal offender intended to shoot was not enough. As noted above, in the
    case of murder, the Crown must prove that the aider or abettor knew that the
    perpetrator had the intent required for murder.

[52]

The trial judge compounded this error by telling the jury that any aider
    or abettor must himself have the intent required for murder. However, that set
    the jury down the wrong path. The jury would have understood that they were to
    consider whether the aider or abettor himself had the intent required for
    murder, and not whether the aider or abettor knew that the principal had the
    intent required for murder.

[53]

The Crown argues that the charge was functionally sufficient. It submits
    that, in this case, any aider or abettor must at least have been wilfully blind
    to the principals intent to commit murder if he knew that the principal
    intended to shoot.

[54]

I would reject this assertion.

[55]

The doctrine of wilful blindness will impute knowledge to an accused
    whose suspicions are aroused to the point where she sees the need for further
    inquiries, but deliberately chooses not to make those inquiries:
Briscoe
,
    at para. 21. Wilful blindness requires more than a failure to inquire and is
    closer to deliberate ignorance:
Briscoe
, at para. 24.

[56]

On these facts, it is not a given that an aider or abettor who knew that
    the accused was going to shoot should be imputed with knowledge that the
    shooter had the intent to commit murder. The evidence suggests that the
    altercation leading up to the shooting happened over a short period of time.
    There was no direct evidence suggesting that either accused knew what the other
    was going to do. On these facts, a jury could have had a reasonable doubt on
    whether either accused knew of the others intent to commit murder, even if
    that accused knew of the others intent to shoot.

[57]

In my view, these errors require that Warner and Chambers convictions
    for the murder of Musgrave be quashed.

4.4.    Instructions on Aiding and Abetting Aggravated Assault
    were

Sufficient

[58]

While the trial judges instructions were not sufficient for the murder
    charges, I conclude that they adequately conveyed the requirements for aiding
    or abetting an aggravated assault.

[59]

The essential elements of aggravated assault are well established.
Watts
    Manual of Criminal Jury Instructions
, 2d ed. (Toronto: Thomson Carswell,
    2015) provides a helpful summary at pp. 816-17. The Crown is required to prove
    the following: (i) the accused intentionally applied force to the complainant;
    (ii) the complainant did not consent to the force applied by the accused; (iii)
    the accused knew that the complainant did not consent to the force being
    applied; and (iv) the force applied wounded, maimed, disfigured, or endangered
    the life of the complainant.

[60]

In this case, the undisputed evidence was that Chinambu had been wounded
    by a shot fired by Warner or Chambers. Furthermore, Warner, through his
    counsel, admitted that he had shot Tsibu-Darkoh.

[61]

Read in context, the jury was directed that anyone aiding or abetting
    an aggravated assault must know that the shooter intended to shoot someone and
    would actually shoot, and the aider or abettor did something for the purpose of
    helping the shooter do so. Concluding that either accused knew of the others
    intent to shoot is to conclude that he knew of the others intent to apply
    force. In the circumstances here, there was no question that the two victims
    did not consent to the application of force and were wounded as a result of the
    application of force.

[62]

Therefore, while knowledge that the principal offender intended to shoot
    is not knowledge that the principal had the intent required for murder, in my
    view, in these circumstances it is knowledge that the principal intended to
    commit the offence of aggravated assault.

5.       FAILURE TO LEAVE MANSLAUGHTER AS A
    LESSER INCLUDED
OFFENCE FOR AIDING AND ABETTING MURDER

[63]

The appellants concede that the shooter was guilty of murder because his
    actions entailed at least the secondary intent for murder, namely that he meant
    to cause Musgrave bodily harm that he knew was likely to cause his death and
    was reckless whether death ensued or not. However, they submit that it does not
    follow that the non-shooter was necessarily aware of the shooters murderous
    intent. Therefore, they submit, the trial judge should have instructed the jury
    that they could convict the appellants on the lesser included offence of aiding
    and abetting manslaughter instead.

[64]

The Crown rejects this submission. It argues that there was no air of
    reality to a verdict of manslaughter. The Crown notes that trial counsel did
    not request an instruction including manslaughter as an available verdict. Even
    if failing to instruct the jury on this verdict was an error, the Crown submits
    that it did not result in a substantial wrong or miscarriage of justice and so
    the curative proviso should be applied.

[65]

I agree with the appellants that the trial judge erred by failing to
    leave manslaughter with the jury as a lesser included offence to the murder
    charges in the case of the aider or abettor.

[66]

A party to an offence may be found guilty of either a more or a less
    serious offence than the principal. It is open to a jury to find an accused
    guilty of the lesser included offence of manslaughter where she aided or
    abetted a principal who is found guilty of murder:
R. v. Kirkness
,
    [1990] 3 S.C.R. 74, at pp. 88 and 96-97;
R. v. Jackson
, [1993] 4
    S.C.R. 573, at pp. 581-83. A person who aids or abets another person in the
    offence of murder may be convicted of manslaughter where a reasonable person in
    all the circumstances would have appreciated that bodily harm was the
    foreseeable consequence of the dangerous act that was being undertaken by the
    murderer:
Jackson
, at p. 583.
[1]

[67]

In a murder case, a trial judge must instruct a jury on the possibility
    of a conviction on the included offence of manslaughter if, on all the
    evidence, there is an air of reality to a finding that the Crown has not proven
    beyond a reasonable doubt that the killer had either of the requisite intents
    required for murder:
R. v. Babinski
(2005), 193 C.C.C. (3d) 172 (Ont.
    C.A.), at para. 45;
R. v. Aalders
, [1993] 2 S.C.R. 482, at p. 504.

[68]

Similarly, where the Crown argues that an accused aided or abetted a
    murder and there is an air of reality to a finding that the Crown has not
    proven beyond a reasonable doubt that the aider or abettor knew that the killer
    had the requisite intent for murder, the trial judge must instruct the jury on
    the possibility of a conviction of the aider or abettor on the included offence
    of manslaughter.

[69]

There was no direct evidence as to whether the aider or abettor knew
    that the perpetrator had the intent for murder. The shootings followed an
    argument, and there was no suggestion that they were planned. It is possible
    that Warner pulled out his gun to help out Chambers, not knowing that Chambers
    had a murderous intent. Similarly, it is possible that by pulling out his gun
    and saying I can end this party right now, Chambers encouraged Warner to
    shoot without knowing that Warner had a murderous intent. Therefore, there was
    an air of reality to a finding that the Crown had not proven beyond a
    reasonable doubt that the aider or abettor, as the case may be, knew that the
    principal had the intent for murder.

[70]

As noted, the Crown relies on the fact that the appellants counsel did
    not request that the jury be instructed on the possibility that the appellants
    could be convicted of manslaughter instead of murder. Although counsels
    position at trial is a relevant consideration for an appellate court reviewing
    a jury charge, trial counsels failure to object or request a particular
    instruction is not determinative. A legal error remains a legal error
    irrespective of trial counsels position:
R. v. Polimac
, 2010 ONCA
    346, 254 C.C.C. (3d) 359, at para. 97. Therefore, even though the appellants
    counsel did not ask for the instruction, the failure to instruct the jury on
    this lesser included offence was an error.

[71]

As I would set aside the murder convictions on other grounds, it is not
    necessary to address in detail the Crowns submission that the curative proviso
    should be applied. However, I note that failing to instruct a jury on the
    possibility of conviction on a lesser included offence will in most
    circumstances constitute reversible error:
R. v. Sarrazin
, 2011 SCC
    54, [2011] 3 S.C.R. 505, at para. 31. In my view, this is not one of those rare
    cases where the curative proviso could be applied despite a failure to leave a
    verdict on a lesser included offence with the jury.

6.       ERROR IN JURY INSTRUCTIONS REGARDING THE USE OF EVIDENCE OF
    POST-OFFENCE CONDUCT

[72]

Both appellants attack the trial judges instructions to the jury on how
    it could use evidence of the appellants conduct after the shooting. Warners
    primary argument is that, because he had admitted to assaulting Tsibu-Darkoh,
    the trial judge should have instructed the jury that it could not use Warners
    post-offence conduct to draw an inference that he was guilty of committing an
    aggravated assault on Chinambu or murdering Musgrave.

[73]

Chambers similarly argues that the jury should have been instructed that
    it could not use his post-offence conduct to draw an inference of guilt because
    his conduct was explained by the fact that he knew that he had violated his
    firearms prohibition order. In the alternative, he argues that the trial judge
    erred in the manner in which he instructed the jury with respect to
    post-offence conduct.

[74]

The Crown rejects these submissions. It argues that the trial judges
    instructions told the jury to consider the post-offence conduct to determine if
    the appellants conduct was consistent with the state of mind of a person who
    had taken part in a shooting. If the jury had followed the instructions
    given, then it would not have used the evidence against Warner as he had
    already admitted to having taken part in a shooting by assaulting Tsibu-Darkoh.
    Furthermore, as Chambers had not admitted to any of the offences he was charged
    with, the inferences left with the jury were permissible ones in the case of
    Chambers. Therefore, the Crown argues that the trial judges instructions do
    not justify appellate intervention. The Crown does not argue that the curative
    proviso could be applied if the trial judge committed the errors alleged by the
    appellants.

[75]

As I will explain, I agree with Warner that the trial judge was required
    to instruct the jury that some of the evidence of Warners post-offence conduct
    namely, the evidence of his flight to Guyana  had no probative value. I
    also agree that the trial judges instructions to the jury regarding
    post-offence conduct were otherwise inadequate. In my view, the curative
    proviso cannot be applied to these errors.

6.1.    The Law Regarding Post-Offence Conduct Evidence

[76]

The term post-offence conduct evidence, which is sometimes called
    after-the-fact conduct evidence, refers to evidence of acts or omissions of the
    accused occurring after the commission of an alleged offence. It is
    circumstantial evidence that a jury may use, when considering the charges
    against an accused, if and to the extent that it is relevant to a live issue:
R.
    v. White
, [1998] 2 S.C.R. 72 (
White #1
), at para. 21; see also
R.
    v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433 (
White #2
), at
    paras. 22 and 31.

[77]

At the same time, the jurisprudence recognizes that post-offence conduct
    evidence is a special brand of circumstantial evidence that carries a
    heightened risk of misapplication and prejudice and that the relevance and available
    uses of such evidence are not always matters of common sense: David M.
    Paciocco, Simply Complex: Applying the Law of Post-Offence Conduct Evidence
    (2016) 63 C.L.Q. 275, at p. 277;
R. v. Rodgerson
, 2015 SCC 38, [2015]
    2 S.C.R. 760, at para. 31. In some cases, trial judges will be obliged to
    deliver cautions and limiting instructions that are not generally required
    for other forms of circumstantial evidence: Paciocco, at p. 277.

[78]

In
White #2
, at para. 31, Rothstein J. explained that the rules
    governing the need for and scope of limiting instructions are those that govern
    the admissibility of circumstantial evidence in general: is the evidence
    relevant to a live issue; is the evidence subject to any specific exclusionary
    rules (for example, the hearsay rule); and should the evidence be excluded
    under a recognized judicial discretion?

[79]

Laskin J.A. explained how to determine the relevance and permissible
    use, if any, of post-offence conduct evidence in
R. v. Angelis
, 2013
    ONCA 70, 296 C.C.C. (3d) 143, at para. 55:

Post-offence conduct, therefore, is not subject to blanket
    rules. It is circumstantial evidence whose probative value depends on the
    nature of the evidence, the issue at trial and the positions of the parties.
    Thus, we do not automatically label certain kinds of post-offence conduct as
    always or never relevant to a particular issue. Rather, we must consider all
    the circumstances of a case to determine whether the post-offence conduct is
    probative and, if so, what use the jury may properly make of it. In the words
    of Rothstein J. in [
White #2
], the overriding question is this: what
    do logic and human experience suggest that a jury can legitimately or
    rationally infer from the accuseds post-offence conduct?

[80]

In some cases, the post-offence conduct will have no probative value
    because it is not relevant to any live issue; in such cases, a trial judge must
    deliver a blanket no probative value instruction informing the jury that they
    should not consider the post-offence conduct. For instance, in
R.  v.
    Arcangioli
, [1994] 1 S.C.R. 129, the accused was charged with aggravated
    assault for having allegedly stabbed someone. He admitted to having punched the
    victim several times before he fled from the scene. The trial judge permitted
    the jury to consider the post-offence conduct of flight as evidence on the
    aggravated assault charge, but the Supreme Court concluded that was an error.
    Because the accused had admitted culpability in respect of one offence
    (assault) and the evidence could not logically support an inference of guilt
    with respect to another offence he was charged with, the evidence of the
    appellants flight had no probative value and the jury could make no use of
    it.

[81]

In some instances, however, evidence of post-offence conduct can logically
    support an inference of guilt with respect to one offence rather than another. 
    As the Supreme Court explains in
White #1
, at para. 32:

It is possible to imagine cases in which evidence of
    post-offence conduct could logically support a distinction between two levels
    of culpability for a single act, or between two offences arising from the same
    set of facts. By way of illustration, where the extent of the accuseds flight
    or concealment is out of all proportion to the level of culpability admitted,
    it might be found to more consistent with the offence charged.

[82]

And post-offence conduct may be probative of one live issue, but not of
    another. For example, flight
per se
may be relevant in determining the
    identity of the assailant, but may not be relevant in determining the
    assailants level of culpability, as between manslaughter and murder. In that
    circumstance, the judge must give a limiting instruction as to the appropriate
    and inappropriate inferences to be drawn from the evidence:
White #2
,
    at para. 39. A trial judges failure to instruct a jury on the limited use of
    or inferences available from the post-offence conduct evidence may constitute
    reversible error: see, for example,
Rodgerson
.

6.2.    The Trial Judges Charge Regarding Post-Offence
    Conduct

[83]

The trial judge recounted some of the evidence of Warner and Chambers
    conduct after the shooting. In particular, he noted the following:

·

Warner and Chambers left right after the shooting.

·

According to A.B., the first man out dropped a gun and told the
    other one to pick it up, which the second person did.

·

Nicole Hamilton testified that after the popping noises the man
    who didnt like the music dropped a gun and then picked it up. Chambers agreed
    that he dropped the gun and picked it up. He testified that his .380 was dull
    silver. Nicole said that the gun that was dropped was silver with black.

·

After he was picked up by his regular cabbie, Warner lay down on
    the back seat. He was concerned about the incident at the party. After reading
    a report about the incident, he told the cabbie that he was upset not because
    he was involved, but because he was with Chambers, who was involved.

·

Warner was arrested in Guyana.

·

Chambers walked to the residence he shared with his girlfriend
    and stayed there a few nights. Then he went to Halifax.

·

Neither appellant called the police to say that he had witnessed
    a shooting and that he knew who did it, nor to tell them that there were
    firearms lying around in peoples gardens on Canada Street.

·

Neither appellant stayed to get medical help for Musgrave.

[84]

Then the trial judge instructed the jury on how they could use this
    post-offence conduct:

You can take this conduct after the fact into account as a
    piece of circumstantial evidence of the respective states of mind of each
    accused if you think that it is more consistent with the way someone would act
    who had taken part in a shooting. You must also consider any explanation for
    this conduct. The conduct can only be circumstantial evidence of guilt if you
    reject the explanation.

[85]

Finally, the trial judge summarized the appellants explanations for
    their conduct, as follows:

Mr. Chambers explanation is that he spoke to a lawyer that he
    found on Google and the lawyer told him that he would be arrested if he went to
    the police.  With his previous conviction and prohibition order, he thought he
    was looking at several years in prison just for having had a gun.  He was told
    that he could not clear his name without being arrested.  He did not think
    about clearing his name by giving the police his .380 to prove that he was not
    the person who shot these people with a .22, although he thought about going to
    the police because his heart dropped when Mr. Warner told him that one of the
    men was not expected to make it.  In the end he thought it best to lie low
    until Mr. Warner got caught.

Mr. Warners explanation, as given to [his cabbie], is that he
    thought he was in trouble for being with the person who committed the offence.

6.3.    Some Inferences Were Available from Certain Aspects of
    the Post-Offence Conduct

[86]

Before explaining how the trial judge erred in his instruction to the
    jury regarding the use of evidence of post-offence conduct, I wish to make
    clear that some inferences could legitimately and rationally be drawn from
    certain aspects of Warners and Chambers post-offence conduct. Some of the
    evidence of post-offence conduct was relevant to some of the issues before the
    jury.

[87]

In my view, logic and human experience suggest that a jury could
    legitimately and reasonably infer from the fact that Warner and Chambers fled
    the party together, and remained together until they parted company at the GO
    Station, that Warner and Chambers participated together in the shootings. And
    this, in turn, is relevant to whether Warner or Chambers was liable as an aider
    or abettor to aggravated assault or murder. However, it would have had to have
    been made clear to the jury that other inferences were also available to them
    from this evidence. Both Warner and Chambers were subject to firearms
    prohibitions and had openly brandished firearms.  A jury could also conclude
    that they fled together, immediately after the shots were fired, simply because
    they were friends who came to the party together and both were in trouble,
    although to different degrees.

[88]

Also, if the jury accepted A.B.s evidence that the the first man out
    dropped a gun and told the other one to pick it up then that evidence may be
    probative of whether the non-shooter aided or abetted the shooter. And it may
    be that, if accepted by the jury, Hamiltons evidence of who dropped the gun
    and what that gun looked like was relevant to the identity of the shooter.

[89]

I reject Chambers argument that a jury could not legitimately and
    rationally infer that Chambers had participated in one or more of the shootings
    because of his flight to Halifax. Unlike Warner, Chambers did not admit to any
    of the offences he was charged with. He relied on the fact that he was subject
    to a firearms prohibition at the time of the offences to explain his flight. It
    is not necessarily true that Chambers post-offence flight to Halifax is
    equally consistent with someone fleeing because he had violated a firearms
    prohibition and someone fleeing because he had participated in a shooting. On
    this record, it may be open to the jury to conclude as a matter of logic and
    human experience that Chambers post-offence flight to Halifax is consistent
    with someone participating in a shooting and not just someone fleeing because
    he had violated his firearms prohibition. It is for the jury to decide- on a
    proper instruction- which available inference to accept.

6.4 How the Trial Judge Erred in His Instruction to the Jury

[90]

As indicated above, the trial judge simply instructed the jury that they
    could take Warners and Chambers post-offence conduct into account as a piece
    of circumstantial evidence of the respective states of mind of each accused if
    you think that is more consistent with the way someone would act who had taken
    part in a shooting. Then he said that the conduct could be circumstantial evidence
    of guilt.

[91]

The trial judge treated the evidence of post-offence conduct as an
    amorphous whole. He failed to instruct the jury as to what inferences were (and
    were not) available from the various portions of the evidence of the
    post-offence conduct and how that evidence related to specific live issues
    before the jury. He erroneously left the impression that Warners and Chambers
    post-offence conduct was relevant to all of the offences with which they were
    charged and could assist them in establishing the respective states of mind of
    each accused.

6.4.1 The Trial Judge Should Have Delivered a No Probative
    Value
Instruction in Respect of Warners flight to Guyana

[92]

An inference that Warner had shot, aided Chambers in shooting, or
    abetted Chambers to shoot Musgrave and/or Chinambu, was not available from
    Warners post-offence flight to Guyana. The trial judges failure to instruct
    the jury that this was not an available inference is an error.

[93]

Through counsel, Warner admitted the serious offence of committing
    aggravated assault on Tsibu-Darkoh, with which he had been charged. This, and
    not the explanation given to his cabbie recounted in the trial judges charge,
    was Warners explanation for his flight to Guyana.

[94]

Warners post-offence flight to Guyana is as consistent with having
    committed the admitted offence of aggravated assault of Tsibu-Darkoh as with
    having committed that offence and the aggravated assault of Chinambu, as
    principal offender or as an aider or abettor. Therefore, his post-offence
    flight to Guyana is not probative of who shot Chinambu or whether he aided or
    abetted Chambers to shoot Chinambu.

[95]

While the offence of murder is more serious than that of aggravated
    assault, and fleeing the country is perhaps a relatively extreme instance of
    post-offence conduct, it cannot be said that Warners flight to Guyana was out
    of all proportion to the admitted offence of wounding Tsibu-Darkoh.
    Accordingly, in my view, the trial judge should have directed the jury that
    Warners post-offence flight to Guyana could not be used to infer guilt of
    Musgraves murder either.

[96]

I reject the Crowns argument that the jury would have understood that
    it was not to use evidence of Warners post-offence flight to Guyana in
    determining his guilt. The trial judge instructed the jury that the
    post-offence conduct was circumstantial evidence of guilt and, therefore, the
    jury would have believed that it could use the all of the evidence of
    post-offence conduct  including the evidence of Warners flight to Guyana  as
    evidence against Warner on all three counts.

[97]

Because the failure to instruct the jury that it could not consider the
    evidence of Warners flight to Guyana is dispositive of the ground of appeal
    arising out of the trial judges charge regarding post-offence conduct in the
    case of Warner, I principally focus the balance of my analysis through the lens
    of Chambers.

6.4.2 The Trial Judge Failed to Relate the Evidence to Specific
    Live Issues before the Jury

[98]

This case involves more than one accused and more than one offence.
    There were several live issues before the jury: did Chambers shoot and kill
    Musgrave; did he assist or encourage Warner in murdering Musgrave knowing that
    Warner had the intent to murder Musgrave; did he shoot Chinambu; did he assist
    or encourage Warner in committing an aggravated assault on Chinambu knowing
    that Warner intended to shoot and would shoot Chinambu; and did he assist or
    encourage Warner to shoot Tsibu-Darkoh, knowing that Warner intended to shoot
    and would shoot Tsibu-Darkoh? All of these, in turn, raised a number of
    sub-issues.

[99]

By saying that the post-offence conduct could be circumstantial
    evidence of guilt, the trial judge suggested that the jury could use all of
    the evidence of post-offence conduct to help resolve all of the issues before
    them. In essence, the trial judge improperly invited the jury to consider all
    of the evidence of post-offence conduct as evidence of guilt on all three
    charges. He failed to explain what inferences were and were not available from
    the evidence of post-offence conduct. In so doing, he erred.

[100]

By way of
    illustration, Chambers post-offence flight is not probative of whether he shot
    Musgrave as opposed to, for example, whether he shot Chinambu. The limited
    available inference from his flight is simply that he had participated in one
    or more of the shootings.

[101]

As I have
    explained, some of the evidence of post-offence conduct is relevant to some of
    the live issues that were before the jury. However, the trial judge did not
    explain this to the jury. Rather, he treated the evidence of post-offence
    conduct as an amorphous whole and failed to relate it to specific, live issues
    before the jury.

[102]

In my view, the
    effect of his error was to leave the jury with the impression that all of the
    evidence of post-offence conduct was relevant to all counts and encourage a
    leap from that evidence to a conclusion of guilt in relation to the shootings
    of Musgrave, Tsibu-Darkoh, and Chinambu.

6.4.3
Mens Rea

[103]

There is a
    further flaw in the trial judges charge relating to post-offence conduct. By
    indicating that Warners and Chambers post-offence conduct could be considered
    as evidence of their respective states of mind, the trial judge erroneously
    left the impression that their post-offence conduct could assist in
    establishing the
mens rea
element of the offences with which they were
    charged. Normally, post-offence conduct cannot help to determine the state of
    mind of an accused, and it could not do so in this case.

[104]

It could not
    assist the jury in determining whether the aider or abettor knew that the
    principal offender intended to murder Musgrave or shoot Tsibu-Darkoh or
    Chinambu. Further, I conclude above that another issue should have been before
    the jury: if Warner had murdered Musgrave, was Chambers guilty as an aider or
    abettor of murder or manslaughter? Chambers post-offence conduct was equally
    consistent with either verdict, and similarly could not assist the jury to
    determine Chambers level of culpability for the murder of Musgrave.

7.       DISPOSITION

[105]

I would allow
    the appeals, quash Warner and Chambers convictions for the murder of Musgrave
    and aggravated assault of Chinambu and Chambers conviction for the aggravated
    assault of Tsibu-Darkoh, and order a new trial.

Released: AH  SEP 16 2016

Alexandra Hoy
    A.C.J.O.

I agree John I.
    Laskin J.A.

I agree C. William Hourigan
    J.A.





[1]

Although the decision in
Jackson

was rendered
    before the Supreme Court clarified the law on aiding and abetting murder in
Briscoe
,
    in
R. v. M.R.
, 2011 ONCA 190, 257 C.C.C. (3d) 45, at paras. 47-48, O
    Connor A.C.J.O. explained that the
Jackson

remains good law
    despite that clarification.


