


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Kelly, 2017 ONCA 920

DATED: 20171129

DOCKET: C60668

Strathy C.J.O., Doherty J.A. and McCombs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Kmar Kelly

Respondent

Matthew Asma, for the appellant

Delmar Doucette, for the respondent

Heard: November 7, 2017

On appeal from the directed verdict of acquittal entered
    by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a
    jury, on June 2, 2015.

C
rown appeal - appeal from
    directed verdict of not guilty in a jury trial - charge of manslaughter as
    party to a robbery

Doherty J.A.:


I



overview

[1]

The respondent was tried by a court composed of a judge and jury on a charge
    of manslaughter. At the close of the Crowns case, counsel for the respondent
    successfully brought a directed verdict application. The trial judge instructed
    the jury to acquit. The Crown appeals from that acquittal.

[2]

I would allow the appeal and direct a new trial.


II



facts

[3]

On April 16, 2011, two men with guns attempted to rob an illegal poker tournament
    operating out of a banquet hall.
A scuffle between one of the
    robbers and the organizer of the tournament ensued at the entrance to the
    banquet hall and the robber fired his gun.  The bullet hit the ceiling.  The
    other robber opened fire. A man who had come to the aid of the organizer was
    shot and killed. The robber who had been struggling with the organizer was
    accidentally shot in the same volley. Both robbers fled on foot.

[4]

Mark Cousins, a truck driver, saw two men running from
    the banquet hall. One was carrying a gun. He watched them get into the front
    seats of a dark-coloured Honda. A short time later, while stopped at a red
    light, he saw the Honda again. He could see into the vehicle from his vantage
    point in the drivers seat of the truck. According to Mr. Cousins, there were
    only two people in the car and both were in the front seats.

[5]

By the end of the Crowns case, it was clear that the
    two men Cousins saw were the robbers who had fled the banquet hall and that the
    car he saw them in was a Honda Civic that had been rented by the respondent.

[6]

Mr. Cousins evidence was important because it was the
    Crowns theory that the respondent was the getaway driver of the vehicle. On
    Cousins evidence, there was no getaway driver, only the two robbers.

[7]

About 25 minutes after the robbers fled the banquet hall, one of them
    showed up at a hospital seeking treatment for a gunshot wound. The hospital was
    a 20- to 25-minute drive from the banquet hall.

[8]

Forensic examination of the Civic revealed blood from the wounded robber
    soaked into the back cushion on the back seat on the drivers side of the
    vehicle. No blood was found anywhere else in the vehicle.

[9]

There was a great deal of evidence about the use and location of various
    cell phones at different times. One cell phone (#8019) was significant to the
    Crowns case against the respondent. The evidence connecting that phone to the
    robbery included the following:

·

The #8019 phone was pinging off the tower nearest the banquet hall
    the day before the robbery when, on the evidence, some of the persons involved
    in the robbery plot were scouting out the scene;

·


The inside man involved in the robbery, who was in the poker tournament,
    was in constant communication with the #8019 phone in the minutes leading up to
    the robbery;

·

The #8019 phone was pinging off the closest tower to the banquet
    hall in the hour before the robbery and at the time of the robbery; and

·

The #8019 phone was pinging off the tower closest to the hospital shortly
    after the wounded robber arrived at the hospital to get medical attention for
    his bullet wound.

[10]

The evidence connecting the respondent to the #8019 phone consisted of
    the following:

·

The
    respondent provided the #8019 number as his contact information to a man
    associated with the other robbery participants three days after the robbery;

·

10
    days after the robbery, the respondent was driving in the Civic in Hamilton,
    Ontario and the #8019 phone was pinging off a tower in that area; and

·

One of the robbers showed #8019 as belonging to K in the contact
    list on his phone.

[11]

The respondent was also connected to the Civic used
    by the robbers to flee the scene. He rented the car a few days before the
    robbery and kept and used it until April 29, some two weeks after the robbery.


III



arguments and ruling at
    trial

[12]

On the directed verdict motion, the defence
    argued that the Crown had from the outset alleged that the respondent was the
    getaway driver. Counsel submitted that the Crown had taken that position
    knowing full well the evidence to be adduced, including the evidence from Mr.
    Cousins. The defence contended that the Crown could not change its theory of
    liability at the end of the Crowns case. Accordingly, unless the Crown could
    show that a reasonable jury, properly instructed, could find that the
    respondent was the driver of the getaway car, the respondent was entitled to a
    directed verdict. The defence argued that Mr. Cousins evidence precluded any
    finding that the respondent was driving the getaway car.

[13]

The defence also argued that even if the Crown was
    not limited to the claim that the respondent was the getaway driver, there was
    no basis in the evidence upon which a reasonable jury could convict the
    respondent of manslaughter on any theory of liability. The defence pointed out
    that there was no direct evidence as to who was using the #8019 phone on the
    day of the robbery.

[14]

The Crown argued that the trial judge was
    obligated to take the evidence at its highest from the Crowns perspective in
    deciding whether to direct a verdict of acquittal. The Crown further submitted
    that the trial judge was not required to accept Mr. Cousins evidence, but was
    required to consider the entirety of the evidence, including Mr. Cousins
    testimony, in deciding what inferences could reasonably be drawn. On the
    Crowns argument, Mr. Cousins evidence, which the jury may or may not accept,
    did not preclude the jury from drawing the inferences necessary for a finding
    of guilt. The Crown further argued that it was not limited to the getaway
    driver theory, but could rely on all legal bases for liability available on
    the evidence. It argued that even if the respondent was not the getaway driver,
    a route to conviction was available on the theory that the respondent, through
    the #8019 phone, was acting as the conduit of information from the inside man
    to the robbers.

[15]

The Crown acknowledged that it was its theory
    that the respondent was the driver, but argued:

[O]ur case, the factual basis has never
    changed. Whether we highlighted the fact that Mr. Kelly is the getaway driver
    or not, weve always said he was the getaway driver. Weve always said he was
    in communication with that 8019 number from the scene with the inside man. This
    has not changed. This is - theres not some new approach or new theory, if you
    want to call it that. Its simply the application of the law and what makes out
    manslaughter out of the same set of facts

Your Honour has to tell the jury any mode of
    liability that arises out of the facts. And I dont see any issue of fairness
    thats arising here.

[16]

In granting the motion for a directed verdict,
    the trial judge arrived at two important conclusions. First, he held that in determining
    whether to direct a verdict of acquittal, he was obligated to accept the
    evidence of Mr. Cousins as credible and reliable and determine what
    inferences could be drawn in light of the acceptance of Mr. Cousins evidence (para.
    56).

[17]

Second, the trial judge held that as the Crown
    had maintained throughout its case that the respondent was the getaway driver,
    fairness to the respondent dictated that the Crown was limited to that factual
    theory of liability in seeking to establish the respondents culpability for
    manslaughter (paras. 73-81). The trial judge went on to hold that, given the
    factual theory the Crown advanced, the Crown is limited to proving the guilt
    of Mr. Kelly as an aiding party, as the getaway driver, in accordance with section
    21(1)(b) of the
Criminal Code
 (para. 83).

[18]

With respect, the trial judge erred in both
    conclusions outlined above.


IV



analysis

A: The Test on
    Motion for a Directed Verdict

[19]

When the defence moves for a directed verdict of
    acquittal at the end of the Crowns case, the trial judge must decide whether
    there is a basis in the evidence upon which a reasonable jury, properly
    instructed, could convict. In performing that task, the trial judge does not
    make findings of fact or credibility, but considers whether a reasonable jury,
    properly instructed, could, on the entirety of the evidence, favourable and
    unfavourable to the accused, conclude that the Crown has established guilt. The
    trial judge must view the evidence in the reasonable light that is the most
    favourable to the Crown:
R. v. Arcuri
, 2001
    SCC 54, [2001] 2 S.C.R. 828, at paras. 21, 29-32;
R. v. Jackson
, 2016 ONCA 736, 33 C.R. (7th) 130, at paras. 6-9.

[20]

The trial judge erred in approaching his task by
    asking what inferences could be drawn on the assumption that the jury accepted
    Mr. Cousins evidence as accurate. He should have asked whether having regard
    to all of the evidence, including Mr. Cousins evidence, there was a legal
    basis upon which a reasonable jury could find the respondent guilty of
    manslaughter. This analysis required a consideration of the possibilities that
    the jury, having regard to the blood in the back seat of the Civic, would not
    accept Mr. Cousins evidence as accurate, or that despite Mr. Cousins
    evidence, would conclude that the respondent was guilty of manslaughter.

[21]

The trial judges error as to the legal test to
    be applied on a motion for a directed verdict does not mean that this appeal
    must succeed. The Crown must show that on an application of the proper legal
    test for a directed verdict, the trial judge should not have directed a verdict
    of acquittal. To determine whether a directed verdict was warranted, this court
    must consider whether, on a proper application of the law applicable to party
    liability to the evidence, a reasonable jury could convict the respondent. This
    court must also consider the respondents argument that in the circumstances of
    this case, the Crown was limited to proving the respondents culpability by
    establishing that he was the getaway driver.

B: On What
    Legal Basis Could the Respondent be Found to be a Party to the Offence of
    Manslaughter?

[22]

In its argument on the directed verdict
    application, the trial Crown relied on s. 21(1)(b) of the
Criminal Code
,
    the aiding provision, and s. 21(2), the common purpose section. The trial judge
    held that as the Crown was restricted to arguing that the respondent was the
    getaway driver, it followed that the respondent could only be liable as an
    aider under s. 21(1)(b).

[23]

With respect, even if the trial judge was right
    in restricting the Crown to the argument that the respondent was the getaway
    driver, his potential liability for manslaughter still flowed exclusively from
    s. 21(2) of the
Criminal Code
.

[24]

As my colleague, Watt J.A., has explained with
    admirable clarity in
R. v. Simon
, 2010 ONCA
    754, 104 O.R. (3d) 340, at paras. 39-43, s. 21(1) refers to parties who
    participate in the offence charged as perpetrators, aiders, or abettors. To aid
    in the commission of an offence, an accused must do something for the purpose
    of aiding another in the commission of that offence. Liability under s. 21(2)
    rests on an entirely different basis. Section 21(2) imposes party liability for
    offences that are incidental to the carrying out of a common unlawful design. Liability
    under s. 21(2) requires the Crown to prove that an accused formed an intention with
    others to engage in an unlawful purpose and that one or more of the others, in
    carrying out that unlawful purpose, committed a different offence that the
    accused knew or ought to have known was a probable consequence of carrying out
    the common unlawful purpose.

[25]

On the Crowns case, the respondent was an aider
    in the robbery and a party to the common unlawful purpose of committing a robbery.
    There was no evidence that he did anything for the purpose of aiding the
    robbers in harming any of the victims of the robbery. The respondents role in
    planning or executing the robbery could not make him an aider in the homicide
    that occurred during the robbery.

[26]

I think this was quintessentially a case for the
    application of s. 21(2). The respondent, having allegedly agreed to the
    commission of one crime, the robbery, was alleged by the Crown to be
    responsible for the commission of a second crime committed by one of the
    parties to the robbery in the course of carrying out the common unlawful
    purpose. Section 21(2) addresses exactly that kind of criminal culpability.

[27]

The Crown alleged that the respondent and
    others, including the two robbers, had entered into a common design to rob people
    attending the poker tournament (the common unlawful purpose). The Crown further
    alleged that one of the robbers, in the course of carrying out that common
    unlawful purpose, had shot and killed the victim. If the Crown could prove that
    the respondent, as a party to the common unlawful purpose to rob, knew or ought
    to have known that one of the robbers would probably cause harm of more than a trivial
    nature to someone in the course of committing the robbery, the respondent was
    guilty of manslaughter pursuant to s. 21(2), if that harm actually caused death:
    see
R. v. Jackson
, [1993] 4 S.C.R. 573, at
    586-87;
R. v. Modeste
, 2015 ONCA 398, 326
    C.C.C. (3d) 93, per Strathy C.J.O., in dissent on another issue, at para. 103. The
    respondents potential liability under s. 21(2) did not turn on the specific
    role he played in the robbery plan.

[28]

Setting aside for the moment the trial judges
    finding that the Crown could only rely on the allegation that the respondent
    was the getaway driver, there was ample evidence upon which a reasonable jury
    could find that the respondent formed a common intention to rob the poker tournament.
    The evidence connecting the #8019 cell phone to the robbery and to the
    respondent, combined with the evidence connecting the respondent to the getaway
    car, provided a basis upon which a reasonable jury could infer that he was a party
    to the plan to rob the poker tournament.

[29]

Given the nature of the robbery planned, and the
    number of people in attendance at the tournament, it would be reasonable for a
    jury to infer that the respondent knew that the robbers would be armed and
    prepared to overcome resistance in effecting the robbery. It flows from that
    inference that the jury could infer that the respondent knew or ought to have
    known that it was probable that one of the robbers would cause non-trivial harm
    to someone in the course of committing the robbery.

C: Did the
    Trial Judge Err in Holding that the Crown was Bound by its Theory that the Respondent
    was the Getaway Driver?

[30]

The Crown is not bound to prove its case
    according to any factual or legal theory. Liability for an offence charged is
    determined by an application of the law relating to parties to an offence, found
    primarily in s. 21 of the
Criminal Code
, to
    the facts as found by the jury or trial judge. Culpability depends on the
    evidence and the legal principles applicable to that evidence. The Crown is
    entitled to rely on any route to liability available on the evidence: see
R.
    v. Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at para.
    19;
R. v. Khawaja
, 2010 ONCA 862, 273 C.C.C.
    (3d) 415, at paras. 143-45, approved without reference to this point, 2012 SCC
    69, [2012] 3 S.C.R. 555;
R. v. Ranger
(2003),
    67 O.R. (3d) 1 (C.A.), at 41-42;
R. v. Pawluk
,
    2017 ONCA 863, at para. 29.

[31]

The defence must be taken to know that liability
    depends on an application of the applicable legal principles to the evidence. There
    is nothing
per se
unfair in the Crown relying
    on different or alternate theories of liability, as long as each is rooted in
    the evidence. The argument that the Crown should be bound by the particular
    theory it advances is essentially an argument in favour of a formalistic
    pleadings-type approach to criminal justice, or perhaps a plea for the return
    of the now discredited sporting theory of criminal justice.  The contemporary
    approach favours the adjudication of criminal allegations on their merits.

[32]

The general rule that the Crown can rely on any
    legal basis of culpability available on the evidence is circumscribed by the
    overriding need to ensure trial fairness and, specifically, the accuseds right
    to make full answer and defence:
Ranger
, at
    para. 133. There can be circumstances in which the defence, based on particulars
    provided by the Crown, specific representations made by the Crown, or the
    overall conduct of the trial, is justifiably led to believe that the accuseds
    potential liability is limited to a specific factual or legal theory and
    conducts the defence accordingly. In those circumstances, the defence may be
    able to successfully argue that any departure from the specific basis of
    liability put forward, especially after the evidence is complete, would
    unfairly prejudice the accuseds ability to make full answer and defence:
Pawluk
,
    at para. 30.

[33]

Ranger
provides an example of how a
    very late change in the nature of the case the accused had to meet could
    seriously prejudice the defence. In
Ranger
,
    the defence had every reason to believe, right up to the point of the jury
    instruction, that the jury would be told that liability depended on the Crown
    proving that the accused was in the house when the murders occurred. Both the Crown
    and the trial judge had made comments to the effect that liability depended on
    the Crown proving that fact. However, the trial judge, in his instructions to
    the jury, and on his own initiative, put a second and different theory of
    liability to the jury that did not require that the jury find that the accused was
    in the house. This court concluded that, having regard to the conduct of the
    trial, the introduction of this new theory of liability in the trial judges
    instructions compromised the defence ability to meet the case put against it and
    resulted in a miscarriage of justice.

[34]

In ruling that it would
    be unfair to allow the Crown to advance a theory other than the getaway
    driver theory, the trial judge held that the Crown could alter its theory only
    if it could show that the evidence at trial had unfolded in a manner not
    anticipated by the Crown (para. 78). With respect, this puts the onus in the
    wrong place. As the authorities outlined above at para. 30 indicate, the Crown
    is entitled to rely on any basis of liability that is available on the
    evidence. It is incumbent on the defence to demonstrate prejudice, justifying
    the limiting of the Crowns case to a particular theory.

[35]

The trial judge also erred in holding that the
    defence was entitled to expect that the potential liability of the accused would
    be limited to the specific factual theory advanced by the Crown. The Crown does
    not, by advancing a particular theory, impliedly limit its case to that theory.
    If it is important to the defence that the Crowns case be limited to the
    theory advanced by the Crown, and if the defence intends to rely on that
    limitation in shaping the defence, the defence must take steps to properly
    limit the Crowns case. The defence can request formal particulars, or at least
    seek a clear and unqualified statement from the Crown that it is relying
    exclusively on the factual basis advanced in its theory of the case. The defence
    cannot simply sit back upon hearing the theory of the Crown, and at the end of
    the Crowns case submit that reliance on any other theory of liability automatically
    works an unfairness on the accused. That argument is untenable in the face of
    the well-developed line of authorities referred to at para. 30.

[36]

The trial judge did not point to any specific
    impairment of the defence ability to make full answer and defence flowing from
    the Crowns submission that the respondent could be liable even if he was not
    the getaway driver. On appeal, counsel suggested that the Crown had depended on
    its claim that the respondent was the getaway driver in the resolution of
    certain legal issues. On my reading of the transcript, the Crown did no more
    than allude to its factual theory of the case in making those arguments. The
    Crowns legal position did not depend on the respondent playing the exclusive role
    of the getaway driver in the robbery.

[37]

I am also not persuaded by counsels arguments
    that the defence ability to make full answer and defence was prejudiced by
    certain tactical decisions made by the defence in reliance on the theory of the
    case that the Crown advanced. First of all, the defence was not entitled in law
    to assume that the Crowns case was limited to the factual theory it had advanced.
    Second, if the defence left some stone unturned because of its erroneous
    assumption that the Crown was limited to the getaway driver theory, the defence
    could have applied for an order reopening the Crowns case and allowing the
    defence to conduct additional cross-examination, or make further legal submissions
    on issues that had arisen during the Crowns case.

[38]

Finally, this is not a case like
J.S.R.
    v. The Queen
(2008), 237 C.C.C. (3d) 326 (Ont. Sup. Ct.),
    an authority relied on by the trial judge.  In that case, the Crown attempted
    to resile from an agreement it had made with the defence. Pursuant to that
    agreement, the Crown had undertaken to advance a certain factual position and
    the defence had agreed that it would not bring an abuse of process application.
    There was no agreement here. The Crown announced its factual position in its
    opening to the jury and maintained that position. The defence, as it was
    entitled to do, said nothing about its position. In that situation, the general
    rule applies. Liability turns on an application of the party liability
    provisions in the
Criminal Code
to the evidence, and not on the factual theory
    articulated by the Crown.


V



conclusion

[39]

The trial judge applied the wrong test in directing
    a verdict of acquittal. He also erred in holding that the Crown was limited to
    the factual theory it had advanced during the case. The Crown was entitled to
    rely on any theory of liability available on the evidence, absent a
    demonstration by the accused of prejudice to his ability to make full answer
    and defence. The appellant did not demonstrate any prejudice, or at least any
    prejudice that could not be fully cured by requiring the Crown to reopen its
    case so that the defence could, if necessary, address the basis for liability
    argued by the Crown on the motion for a directed verdict. On the evidence,
    there was a basis upon which a reasonable jury, properly instructed, could
    convict the respondent of manslaughter by the operation of s. 21(2).

[40]

I would quash the acquittal and direct a new
    trial on the charge of manslaughter.

[41]

Counsel are agreed that the respondents
    attendance at the new trial can be arranged through the service of a summons on
    counsel for the respondent. There is no need at this time for a warrant. Should
    circumstances change and the issuance of a warrant becomes necessary, the Crown
    may apply for a warrant.

Released: GS  NOV 29 2017

Doherty J.A.

I agree G.R. Strathy C.J.O.

I agree D. McCombs J. (
ad hoc
)


