



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2013 ONCA 442

DATE: 20130626

DOCKET: C52747 & C52758

Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dustin McDonald

Appellant

and

Brandon Green

Appellant

Clayton Ruby
    and Gerald Chan, for the appellant Dustin McDonald

Mark Halfyard, for the appellant Brandon Green

David Lepofsky and Dan Guttman for the respondent

Heard: January 16, 2013

On appeal from the convictions entered on May 28, 2010 by
    Justice Robert M. Thompson of the Superior Court of Justice, sitting with a
    jury.

Lauwers J.A.:

[1]

After a nine-day jury trial, the appellants were convicted of common
    assault on Myles Bruer and aggravated assault on William Allen. They were
    sentenced to ten months incarceration for the aggravated assault, one month
    concurrent for the common assault, and an additional two years of probation. In
    argument before this court, it became clear that the appellants were
    challenging only their convictions for aggravated assault on Allen.

[2]

For the reasons set out below, I would allow the appeals with respect to
    the aggravated assault convictions, set aside these convictions and order a new
    trial on the charge of aggravated assault.

The Factual Context

[3]

On Friday, October 10, 2008, the appellants, together with their friends,
    Scott Graham and Andy Barber, met at Bridges Tavern in Thornbury, Ontario. There
    was also another group consisting of Myles Bruer, William Allen, Gregory
    Lafond, Kayla Anscomb and Amelia Clarke. The two groups shared some bad blood
    going back years, and after a brief physical altercation in the bar Green was
    ejected and escorted out by the bar owner. Eventually, Graham, McDonald and
    Green were outside the bar while Bruer, Allen and their friends stayed until
    closing time.

[4]

The two groups encountered one another on the street later and there was
    a short fight. William Allen suffered serious personal injuries.

[5]

Without admitting that either McDonald or Green had personally struck
    Allen and caused his injuries, the defence conceded that Allens injuries
    amounted to maiming within the meaning of s. 268(1) of the
Criminal Code.
Allen had therefore suffered an aggravated assault in the course of the fight.

[6]

The issue at trial was who caused the injuries to Allen that maimed him.
    On the facts, it could have been one of Graham, McDonald or Green, alone or in
    some combination.

[7]

Bruers evidence is that he was assaulted first by either McDonald or
    Green. He was punched in the face. His arm was twisted behind him and he was
    forced to the ground where he was kicked in the head and the body. The assault
    dazed him. His eyes swelled nearly shut and a contact lens had been knocked out
    of one of his eyes. He got up, went over to his girlfriend, Amelia Clarke, and
    they started walking away from the scene. They were about 150 feet away when
    Bruer turned and saw Allen lying on the ground getting kicked. Bruer
    testified that, despite the nighttime darkness, because there were street
    lights, and despite the loss of a contact lens, and his swollen eyes, he could
    see.  He identified the appellants as the attackers. He then ran to Allen to provide
    assistance.

[8]

Clarke also identified the appellants as the individuals who attacked
    Bruer. She testified that she saw Allen being dragged into the road by
    McDonald and another unknown male. In her examination-in-chief she stated that
    she saw the appellants kicking and stomping on Allen. She testified that when
    she approached them, they left. In cross-examination she maintained her
    position.

[9]

Graham admitted assaulting Allen (he had earlier pleaded guilty to doing
    so), but says that after kicking him a couple of times in the ribs he realized
    what he was doing was wrong and left the scene. He denied kicking Allen in the
    head and claimed to be unsure if either Green or McDonald had struck Allen.

[10]

Green
    testified that he exchanged punches with Bruer and that Graham had caused all
    of Allens injuries.

[11]

Stated
    briefly, Bruer and Clarke testified that they each saw McDonald and Green
    kicking Allen in the face. In his testimony, Green denied kicking anyone:
    rather, he identified Graham as the one who kicked Allen in the face. Graham
    denied doing so. At trial, the defence strongly contested the identification
    evidence in this melee.

The Grounds for Appeal

[12]

The
    appellant McDonald, supported by the appellant Green, raises as one ground of
    appeal that the trial judge erred in failing to properly charge the jury on the
    doctrine of common purpose under s. 21(2) of the
Criminal Code.

The
    appellants also submit that the misuse of hearsay evidence further complicated
    the jurys task. The appellants raise other grounds of appeal that do not, in
    my view, require a decision of this court.

The Context for the Common Purpose Issue

[13]

Counts
    one and two of the indictment provide as follows:

HER MAJESTY THE QUEEN PRESENTS THAT DUSTIN McDONALD AND BRANDON
    CHRISTOPHER GREEN on or about the 11th day of October, 2008, at the Town of The
    Blue Mountains, Central West Region and elsewhere in the Province of Ontario,
    did commit an assault on Myles BRUER, contrary to Section 266 of the Criminal
    Code of Canada;

AND FURTHER, THAT DUSTIN McDONALD AND BRANDON CHRISTOPHER GREEN
    on or about the 11th day of October, 2008, at the Town of The Blue Mountains,
    Central West Region and elsewhere in the Province of Ontario, did maim William
    Allen, thereby committing an aggravated assault, contrary to Section 268 of the
    Criminal Code of Canada.

[14]

The
    parties characterized McDonald and Green as being jointly charged.

[15]

As
    noted, Green denied assaulting Allen. Green testified, but McDonald did not.
    Graham had earlier pleaded guilty to assaulting Allen and testified at this
    trial, but denied kicking Allen in the face; he asserted that he stopped the
    assault on Allen and was leaving the scene when Allen was further assaulted.

[16]

The
    defence challenged Clarkes and Bruers evidence identifying Green and McDonald
    as Allens assaulters. There was also some evidence that two unidentified
    males were responsible for assaults on Allen, the implication being that his
    assaulters were neither Green nor McDonald. The appellants argue that the Crown
    pursued the common purpose approach under s. 21(2) of the Code in order to
    avoid the manifest identity challenges.

[17]

Section
    21(2) of the
Criminal Code
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.

[18]

The
    Crowns closing address to the jury focussed heavily on common purpose, as
    the following excerpt shows:

Now, I'm going to go and speak a little bit about some of the
    evidence. First of all, you're going to recall that at the very beginning of my
    opening, I asked you to think of this framework I was going to give you to sort
    of organize your evidence. I said, "Consider the evidence of the state of
    mind of the individuals as a group as they left the bar and as they walked down
    Bruce Street later on. How they were feeling. How they were acting. Did they
    have a motive to enter into a confrontation?"

The second thing I said, "Consider any evidence of whether
    either Mr. McDonald or Mr. Green directly struck either Mr. Allen or Mr.
    Bruer."

Third, "Consider any evidence that shows Mr. McDonald or
    Mr. Green had entered into a common purpose either with each other or with the
    other three males in the group."

I'm going to go through that except in more accessible language
    in relation to the evidence.

. . .

The far easier and quicker way is the concept of common
    purpose. Common purpose, and His Honour is going to explain all of this to you,
    is where a group of people enter in to a common purpose to assault somebody,
    such as Myles Bruer. If there is a common purpose to assault somebody, the
    group gets held accountable for the actions of the group if one of them does
    another crime, such as the aggravated assault on Mr. Allen.

There is all sorts of evidence in relation to the common
    agreement. A common agreement, and His Honour will tell you about this, it
    doesn't have to be sitting down and working out like a football play. It can
    happen instantaneously on the spur of a moment.

. . .

The common purpose is borne out by that action, which in my
    respectful submission really isn't even in contention, that a common purpose to
    assault Myles Bruer and in the course of that struggle, in the course of that
    assault, in the course of that beating, Will Allen got his jaw broken, and that
    makes them each, along with Mr. Graham, liable for that. It doesn't matter if
    Graham did it. It didn't matter if both of them did it. That's the short answer
    to the whole case right there, but knowing me, you know you're not going to get
    the short answer to that question.

. . .

Common purpose, in my respectful submission, is a totally
    different route to convicting both of these individuals, which is a lot more
    straightforward and in my respectful submission, in some ways it doesn't even
    rely on any of the evidence, or very little of the evidence, if any, of Myles
    Bruer, Amelia, or Greg. Most of it is admitted or comes out of Mr. Graham or
    out of Mr. Green. And I'm going to go through that and it's not going to be
    long, but it's important and it's incredibly strong.

By the way, just another thing, there's this thing in law,
    again His Honour will instruct you, there's something, not all of you have to
    be satisfied beyond a reasonable doubt in regards to the fact they were all
    direct perpetrators. Not all of you have to be satisfied there were common
    purpose or liability route. You can be satisfied, all of you, of both of those,
    but four can be satisfied it was common purpose and six or five can be
    satisfied that they were direct perpetrators as long as you're satisfied beyond
    a reasonable doubt that both of these individuals had done what they're charged
    with.

[19]

It
    is clear from Crown counsels closing address that he anticipated that the
    trial judge would be giving the customary common purpose jury instruction.  The
    defence anticipated this as well.  Both the Crown and the defence had provided
    statements of their respective positions to the trial judge, for inclusion in
    the jury charge, that were designed to complement the anticipated common purpose
    section of the charge.

The Pre-charge Conference

[20]

There
    were two surprises for counsel.  The first was the trial judges decision at
    the pre-charge conference, which began just after counsels jury addresses, that
    he would not provide the jury with the common purpose instruction.

[21]

The
    trial judge initially based this decision on his understanding that assault and
    aggravated assault are too closely related for aggravated assault to constitute
    the second offence implicated in s. 21(2). In my view, this reason for not
    providing the common purpose jury instruction was incorrect, given this
    courts decision in
R. v. Vang
(1999), 118 O.A.C. 75, leave to appeal to
    S.C.C. refused, [1999] S.C.C.A. No. 203.

[22]

After
    hearing argument, the trial judge took the position that s. 21(2) was inapplicable
    for two additional reasons. The first was that the assaults were in two
    timeframes. He stated:

what I took from [Ms. Clarkes] evidence, is there was two
    timeframes from what she was seeing. She was seeing the assault, what I would
    call the first assault on William Allen, then she and Myles Bruer start going
    away at different speeds and different lengths or whatever it may be. She then
    looks back and then sees what I call the second assault taking place involving
    both accused.

[23]

Second,
    he noted that Graham, the perpetrator of the first assault on Allen, had left
    the scene. The trial judges position inferentially was that the second
    confrontation was not sufficiently closely related to the assault on Bruer on
    which the Crown was relying to fall within the common purpose. The trial
    judge therefore declined to provide a common purpose instruction.

[24]

As
    noted, the Crown and the defence had previously provided statements of their
    respective positions to the trial judge for inclusion in the charge based on
    the understanding that the common purpose instruction would be given. As a
    result of the trial judges decision at the pre-charge conference not to give
    the common purpose instruction, both sides were obliged to change the statements
    of their respective positions to be included in the jury charge. Just before
    the delivery of the charge, the Crown provided the trial judge with his
    position, slightly amended in the light of the trial judges decision not to
    charge on common purpose. The Crowns revised summary dealt with common
    purpose in the following way:

Both Dustin McDonald and Brandon Green should be convicted of
    the aggravated assault that resulted in the maiming of Will Allen either as
    direct perpetrators as testified to by Amelia Clarke and Myles Bruer, or as
    parties to the offence by their agreement to assault Myles Bruer and his group.

[25]

The
    Crown explained that the original statement of the Crowns position for
    inclusion in the charge was drafted as a common purpose being a separate
    purpose aside from assaulting Myles [Bruer], so I have got to change that. The
    trial judge used the new language proposed by the Crown for its position.

[26]

Given
    the trial judges decision not to charge on common purpose, the defence also
    submitted a revised summary, The new wording provided: The prosecution has not
    proven beyond a reasonable doubt that Mr. Green was part of any agreement to
    assault anyone, and: The prosecution has not proven beyond a reasonable doubt
    that Mr. McDonald was part of any agreement to assault Myles Bruer and his
    group.

The Jury Charge

[27]

Counsel
    were surprised a second time when, despite the trial judges decision at the
    pre-charge conference that he would not provide the common purpose jury
    instruction, he inserted a short paragraph into the jury charge; it is underlined
    in the following excerpt:

In this case, there is more than one way for the Crown to prove
    Brandon Green's and Dustin McDonald's guilt of the crime charged in count
    number two [aggravated assault]. The Crown does not have to prove each one of
    these ways. One, any one, is enough. All of you do not have to agree on the
    same way as long as everyone is sure that one of the required ways has been
    proven beyond a reasonable doubt.

In law, a person commits an offence if he alone, or along with
    someone else or others, does everything necessary to constitute the offence.

A person also commits an offence if he does anything for the
    purpose of helping another person to commit the offence.

Anybody who actively encourages somebody else to commit an
    offence is as guilty of the offence as the person who actually commits it.

A person may also commit an offence by being involved with
    others in a joint criminal enterprise. If any one of the group commits an
    offence in carrying out their original enterprise, any other member of the
    group who knew, or should have known, that the offence would likely be
    committed by a group member carrying out their original design, is guilty of
    the offence the other person actually commits.


Where a criminal offence is committed by two or more persons,
    each may play a different part. If they are acting together, as part of a joint
    plan or agreement to commit the offence, each may be found guilty of it.

It is important to remember, however, that although the accused
    have been charged and are being tried together, each is a separate individual who
    cannot be found guilty of any offence unless the evidence relating to him
    proves his guilt of that offence beyond a reasonable doubt. Each person is
    entitled to separate consideration. Each is entitled to have his case decided
    on the basis of his conduct and state of mind and from the evidence that may
    apply to him.  [Emphasis added.]

[28]

Later
    in the charge, the trial judge described the Crowns position in the following
    words:

It is the Crowns position, both Dustin McDonald and Brandon
    Green should be convicted of the aggravated assault that resulted in the
    maiming of William Allen, either as direct perpetrators as testified to by
    Amelia Clarke and Myles Bruer or as parties to the offence by their agreement
    to assault Myles Bruer and his group.

The evidence of that agreement comes from, number one, both
    Dustin McDonald and Brandon Green's dislike of Myles Bruer stretching back to
    high school.

Number two, the events of October 10th and 11th, 2008, at
    Bridges Tavern, which resulted in Brandon Green and Dustin McDonald having to
    leave that establishment early because of the confrontation with Myles Bruer
    and William Allen.

Number three, the lingering feelings of being riled up on the
    part of all the defendants' group resulting from the eviction that continued right
    up to their walking towards the pier on Bruce Street.

Number four, the actions of both Brandon Green and Dustin
    McDonald in standing side by side, remaining on the sidewalk, and walking
    directly into Myles Bruer as he held hands with Amelia Clarke.

It is the position of the Crown that this evidence either alone
    or in conjunction with the evidence of Leslie Lewis that she saw four to five
    males in front of her window before the attack, who later participated in the
    confrontation at two a.m. saying, "Let's go back to Bridges and get
    him," establishes a common intention to assault Myles Bruer and therefore
    makes both Dustin McDonald and Brandon Green guilty as parties to the
    aggravated assault on William Allen regardless of which one or combinations
    thereof of Dustin McDonald, Brandon Green, or Scott Graham caused the injuries.

The Positions of the Parties

[29]

The
    appellants submit that trial judge erred in not properly explaining the law on
    s. 21(2) of the
Criminal Code
to
    the jury
.

[30]

The
    appellants argue that Crown counsel left the jury with the mistaken impression
    that all it had to do was to find that McDonald, Green and Graham had a common
    purpose to assault Bruer, and that this was sufficient to fix McDonald and
    Green with criminal liability for Allens broken jaw. The appellants argue that
    this was a very powerful submission because it presented the jury with an
    attractively simple method for resolving a complicated case.

[31]

On
    appeal, the Crown asserts that there were three possible routes to criminal
    liability for McDonald and Green for aggravated assault: the first was as
    principals, standing alone; the second was as co-conspirators in a plan or
    agreement on which they acted, to assault Allen, as a member of the Allen/Bruer
    group regardless of who did the actual kicking, (inferentially referring to s.
    21(1) of the
Code
); and the third was that under s. 21(2) of the
Code
,
    Graham, McDonald and Green shared the common purpose of assaulting Bruer with
    the attack on Allen being an objectively foreseeable probable consequence.

[32]

The
    appellants point out that the Crown made a subtle shift in position in asking
    the trial judge to use the following phrase in his statement of the Crowns
    position: their agreement to assault Myles Bruer
and his group

    (emphasis added). The use of the underlined words had the effect of broadening
    the common purpose from the assault on Bruer alone to an assault on anyone in
    his group, including Allen.

Discussion

[33]

The
    role of the trial judge in fashioning the jury charge and the function of the
    jury charge itself were set out by this court in
R. v. J.S.
, 2012 ONCA
    684,
296 O.A.C. 184,
at paras. 34-40. As Watt J.A. put
    it in
J.S.
, at para. 35: Proper instructions leave the jury with a
    sufficient understanding of the facts as those facts relate to the issues the
    jury has to decide (citations omitted). He added, at para. 36:

In the end, the jury must understand:

i.

the
    factual issues to be determined;

ii.

the legal
    principles applicable to the issues and the evidence adduced at trial;

iii.

the positions of the
    parties; and

iv.

the substantial parts of the
    evidence relevant to the positions of the parties on the issues to be decided.

[34]

Although
    the trial judge may take into account the closing addresses of counsel in
    deciding how to discharge his or her obligation to review and relate the
    evidence to the relevant issues, a closing address does not relieve the trial
    judge of the obligation to ensure that 
the jury is aware
    of the substance and understands the significance of the evidence to the
    critical issues in the case
(at para. 39). As this court said in
R.
    v. A.(S.)
(1992),
76 C.C.C. (3d) 522
, at p. 527:
    trial judges are uniquely placed to, and, indeed are obligated, to tailor their
    instructions to the particular case.

[35]

The
    Crowns address to the jury had the effect of leaving three different routes
    for members of the jury to find criminal liability on the part of McDonald and
    Green for aggravated assault. These were: first, as noted in the charge, as direct
    perpetrators as testified to by Amelia Clarke and Myles Bruer, or [second] as
    parties to the offence by their agreement to assault Myles Bruer and his group.
    But the Crowns heavy emphasis in the jury address was on the third: common
    purpose.

[36]

The
    jury heard nothing from the trial judge on common purpose and a very few
    words from him on the notion of criminal liability flowing from common
    enterprise. I repeat them here for convenience:

A person may also commit an offence by being involved with
    others in a joint criminal enterprise. If any one of the group commits an
    offence in carrying out their original enterprise, any other member of the
    group who knew, or should have known, that the offence would likely be committed
    by a group member carrying out their original design, is guilty of the offence
    the other person actually commits.

[37]

The
    trial judge had not discussed with counsel his use of the expression, joint
    criminal enterprise, before he delivered the charge, and did not explain the
    term to the jury in his charge. The words in the preceding paragraph comprise
    the full extent of the trial judges charge on either joint criminal enterprise
    or common purpose. He provided no further guidance to the jury on the issue.

[38]

There
    is considerable force in the appellants submission that the trial judges
    substitution of the language of joint criminal enterprise for the statutory
    language relating to common purpose in s. 21(2) leads to uncertainty around
    what the jury might have understood the joint criminal enterprise to have
    been. If the enterprise was the assault on Bruer, then the appellants submit
    that the assault on Allen could not properly form part of the joint criminal
    enterprise because of its separation in time and space: accordingly the court
    cannot and should not be confident that the jury convicted the accused of
    aggravated assault on the right basis.

[39]

In
    the circumstances of this case, especially in light of the complexity of the
    facts, the number of participants in the fight, and the Crowns emphasis on
    common purpose in its jury address, once the trial judge raised the prospect
    of a joint criminal enterprise route to liability, he was obliged to provide
    a legally adequate jury instruction on s. 21(2).  To ground a conviction on the
    basis of common purpose, the jury was required to find the three elements of
    the offence: (1) an agreement to carry out an unlawful purpose, (2) the
    existence of a second offence, and (3) the requisite degree of knowledge that
    another participant would commit that second offence.

[40]

In
    this case the Crowns basic allegation in relation to common purpose was that Graham,
    McDonald and Green agreed to carry out the unlawful purpose of assaulting
    Bruer.  The jury should have been instructed, in determining whether there was
    any such agreement on the evidence, to take into account what each person did
    or did not do, how they did it and any communications between them.

[41]

The
    second element to be proven by the Crown in relation to common purpose was that
    the aggravated assault on Allen was the second offence related to the common
    purpose.  The instruction should have indicated that the aggravated assault on
    Allen must have occurred in the course of carrying out the original unlawful
    purpose of the assault on Bruer. As Justice David Watt states in
Watts Manual
    of Criminal Jury Instruction on Common Purpose
, 2005 at p. 257: The [second]
    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.

[42]

The
    third element required by s. 21(2) is proof that the person having the
    intention in common knew or ought to have known that the commission of the
    aggravated assault would be a probable consequence of carrying out the common
    purpose.  The trial judge should have addressed the prospect that Graham, McDonald
    and Green each knew or ought to have known that one or more of them would
    assault Allen, and also that one or more of them would commit an aggravated
    assault, all as part of the original unlawful purpose of assaulting Bruer.

[43]

The
    requirement that a criminal jury be unanimous applies only to the essential
    elements of the offence and not to the facts that establish those elements: see
R. v. Thatcher
, [1987] 1 S.C.R. 652;
R. v. G.M.L.
, 1999 BCCA
    467, 128 B.C.A.C. 102. This influenced the legal context within which the
    charge must be assessed.

[44]

In
    this case, had the jury been properly instructed, some or all of its members might
    well have concluded that the aggravated assault on Allen was not sufficiently
    related in time and space to the assault on Bruer to constitute that second
    offence.

[45]

The
    trial judge declined to give a common purpose jury instruction on the basis
    that, in his view, the original assault and the aggravated assault were too separate
    in time and space.  This perspective on the common purpose theory was not put
    to the jury: but such an interpretation of the facts is not, on its face, a
    completely implausible basis for finding that no common purpose existed on
    the facts. In my view, whether the assault and the aggravated assault were too
    separated in time and space was an issue of fact that ought to have been left
    to the jury to decide.

[46]

In
    short, the trial judges charge did not accomplish the essential purposes of a
    jury charge as laid out in
R. v. J.S.
As a consequence of the inadequate
    jury instruction in this case, those jury members who were only prepared to
    take the common enterprise route to criminal liability could well have
    concluded, on proper instructions, that this route was not factually available
    on the evidence.  This is a reasonable prospect on the facts, and therefore renders
    the jury verdict unreliable: see
R. v. Denbigh
(1993)
,
21 B.C.A.C. 241
.

[47]

This
    is a sufficient basis on which to allow the appeals of McDonald and Green.

[48]

The
    parties also addressed this court on the admissibility of certain hearsay evidence
    and its treatment in the jury charge.

The Admissibility of a Statement Heard by Leslie
    Lewis

[49]

Leslie
    Lewis lives in a second storey apartment near the tavern. Her evidence was that
    after 1:00 a.m., she heard a rowdy group of individuals outsideand there was
    just a very loud ruckus.  She looked out of the bedroom window and saw three
    or four males.  She heard: just a lot of yelling but specifically lets go
    back to Bridges and get him.  She described the mood of this group as very
    elevated, very aggressive, a lot of adrenaline, almost a growling type of
    yelling and the comments towards going back to Bridges. At that time, however,
    the group was walking away from Bridges Tavern. She testified that later she was
    awakened again about an hour later by the fight itself involving the same group
    of individuals she had seen earlier and some others.

[50]

The
    appellants submit that the statement, lets go back to Bridges and get him,
    was hearsay and was presumptively inadmissible.

[51]

The
    Crown relied on Ms. Lewiss evidence that she heard the statement.  In his jury
    address, Crown counsel recited this evidence from Ms. Lewis, although he noted
    that at the time the statement was made, the group was actually heading away
    from Bridges.  The Crown then made the following submission to the jury on this
    evidence:

There are several identifiers involved in this.  There is the
    fact that they were all male, the fact of a group between three and five, the
    fact that they were aggressive males, growling, yelling.  We know from Scott
    Graham that they were all riled up.  And theres a him involved.  We know that
    there is Myles Bruer was the major antagonist in the eyes of this group [
sic
].

[52]

The
    Crown observed that Ms. Lewis had no axe to grind, and ultimately linked this
    evidence to his argument that the group members had a common intention.

[53]

Defence
    counsel for Mr. Green made the following comment to the jury on Ms. Lewiss
    evidence:

Ms. Lewis testified that she heard somebody from her upstairs
    bedroom window on Louisa Street saying, lets go back to Bridges and get him.
    Now, whether or not she could identify the group is debatable, but the group,
    whoever she heard say that, didnt go back to Bridges Street, they turned south
    and walked up Bruce Street, away from Bridges Tavern.  So there is no evidence
    that even if somebody did say that, that they acted on that suggestion.

[54]

Defence
    counsel for Mr. McDonald described Ms. Lewis as very even-handed.  He
    submitted that she was not especially precise in her evidence and was unable to
    identify the person who made the statement, and added:

Even if you assume, ladies and gentlemen, even if you assume
    that someone said, lets go back to Bridges to get him, and if you assume that
    in the company of Mr. McDonald, we dont jump from there to a conclusion that
    there was some plan or common purpose or common goal shared by Mr. McDonald to
    go beat anyone up.  The Crown has to prove that, and the evidence comes down to
    this comment that Ms. Lewis says she heard from an unknown person, of unknown
    description, at an unknown time, where her focus was on her store and the busy
    long weekend.  Thats not proof to the threshold required.

[55]

In
    his jury charge, the trial judge briefly reviewed the testimony of Ms. Lewis without
    commenting on the use to which the jury could put the statement.

The Positions of the Parties on the Admissibility of the
    Statement

[56]

The
    Crowns position is that the statement was not hearsay.  The Crown asserts the following:

The value of the statement stems not from the truth of its
    contents but from the fact it was made by one of the appellants group.  The
    jury was not invited to use that statement as proof of the truth of any earlier
    events.  Instead, the Crown offered this as the unidentified speakers
    invitation to his group.  A verbal transaction such as this is not hearsay. 
    The rule against hearsay is not a
per se
presumptive bar against
    admission into evidence of any words ever spoken outside the courtroom.  It is
    a limited rule against a specific use of evidence about words spoken outside
    the courtroom.

[57]

The
    appellants argue that the statement is hearsay and since it was not tested under
    the criteria of necessity and reliability, it should not have been admitted.  The
    appellants assert that the burden is particularly high in this case where the
    identity of the declarant is unknown: further, if reliability is established,
    the Crown has the additional burden of attributing the statement to the
    appellants.  They assert that: the Crown appeared to rely on the hearsay
    utterance in this case to establish a common group intention  i.e. to go back
    and renew the hostilities with the Bruer/Allen/Clarke group.  They argue that
    the statement is only admissible under the common intention for co-conspirators
    exception to the hearsay rule, or through the principled exception.

Discussion

[58]

The
    Crowns purpose in introducing Ms. Lewiss evidence of the statement was to
    help establish that the common intent of the members of the appellants group
    was to assault Bruer.  For the Crowns purposes, it would have been no
    different had the declarant said, We are going to Bridges to assault Bruer.
    The Crown sought to prove both the statement itself, and the intention of the
    declarant to assault Bruer, which the Crown sought to have the jury impute to
    the group.

[59]

This
    is not a case where the statement was adduced for the non-hearsay purpose of
    showing the statements impact on the recipient: see e.g.
R. v. Delafosse
(1988), 47 C.C.C. (3d) 165 (Que. C.A.), affd [1990] 1 S.C.R. 114;
R. v.
    Eisenhauer
(1998),
165 N.S.R. (2d) 81
, leave to
    appeal to S.C.C. refused, [1998] S.C.C.A. No. 144. In those cases, whether the
    declarant was mistaken or dishonest was irrelevant, and therefore so were the
    concerns underlying the hearsay rule. The out-of-court statements were used to
    show their effects on someone else, and not to prove the truth of the matter
    asserted by the declarant.

[60]

In
    my view, in this case the Crown was attempting to adduce the truth content of
    the statement: the intention of the declarant to assault Bruer, which the Crown
    urged the jury to impute to the group. Since the statement was tendered to
    prove the truth of its contents, it is presumptively inadmissible hearsay.

[61]

A
    somewhat similar fact pattern is found in
R. v. Middleton
, 2012 ONCA
    523,
294 O.A.C. 82, leave to appeal to S.C.C. refused, [2012]
    S.C.C.A. No. 423
.  In that case the appellant was part of a group that
    assaulted a group of Asian fishermen.  As Feldman J.A. noted at para. 2:

The unknown declarants said that they were going nip-tipping
    and that that meant that they were going to push them in the river.  The word
    nip was described in the evidence as a derogatory reference to Asian people. 
    Some of the victims group were of Asian descent.

[62]

The
    parties in
Middleton
agreed that the statement was hearsay, but differed
    on its admissibility.  The trial judge admitted the statement under the
    principled exception to the hearsay rule.  He found that the evidence was both necessary
    and reliable.  Feldman J.A. stated at para. 45:

With respect to reliability, the trial judge found that the
    pushing incident corroborated and therefore rendered sufficiently reliable the
    statements as evidence of the common intention. He further found that the
    statements were reliable in terms of their applicability to the appellant
    specifically based on the anticipated corroborating evidence of the appellant's
    leadership in the incident and his direct involvement as one of the pushers.
    Therefore, I do not find that the trial judge erred in his application of the
    principled exception.

[63]

By
    contrast, in this case, the group did not immediately do what the declarant
    suggested, but did exactly the opposite by continuing to walk away from Bridges
    Tavern.  The group returned about an hour later.  Based on the separation in
    time and space, I conclude that, taken on its own, the reliability of the unidentified
    declarants statement was at issue under the principled exception to the
    hearsay rule. Perhaps because no one objected to the admissibility of the
    statement at trial, the trial judge did not address the use, if any, to which
    the statement could be put by the jury.

[64]

In
    my view, the statement appears to fall within the rule in
R. v. Starr
,
    2000 SCC 40, [2000] 2 S.C.R. 144, to the effect that hearsay statements of
    common intention are not admissible to prove the intentions of a third party
    under the present intentions exception to the hearsay rule.  See also
Middleton
at paras. 35-37.

[65]

In
    the circumstances of this case, the admissibility of the undisclosed
    declarants statement put in through Ms. Lewis is an issue to be addressed at
    the new trial if the Crown seeks to introduce it.

Disposition

[66]

For
    these reasons I would allow the appeals of McDonald and Green, set aside their
    convictions for aggravated assault and order a new trial on that charge.

Released: June 26, 2013 (M.R.)

P. Lauwers J.A.

I agree. M. Rosenberg J.A.

I agree. Gloria Epstein J.A.


