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(a) is guilty of an indictable
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COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alexis, 2020 ONCA 334

DATE: 20200601

DOCKET: C61399 & C62320

Feldman, Gillese and Miller
    JJ.A.

DOCKET: C61399

BETWEEN

Her Majesty the Queen

Respondent

and

Marcus Alexis

Appellant

DOCKET: C62320

AND BETWEEN

Her Majesty the Queen

Respondent

and

Brian Funes

Appellant

Michael W. Lacy and Bryan Badali, for
    the appellant Marcus Alexis

Erin Dann and Sarah Weinberger, for the
    appellant Brian Funes

Michael Bernstein, for the respondent

Heard: November 18, 2019

On appeal from the convictions entered
    by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a
    jury, on March 13, 2015, and from the sentence imposed on September 23, 2015.

B.W. Miller J.A.:

[1]

On April 16, 2011, two masked assailants attempted
    an armed robbery of a poker tournament at a banquet hall in Brampton. Just
    before the tournament was to begin, one of the assailants stormed into the hall,
    demanded the tournament registration money, and struck the tournament organizer
    on the head with his handgun. The gun discharged into the ceiling. Sam Parker 
    the tournament organizer  fell to the ground, then wrestled with the assailant
    for control of the gun. One of the tournament patrons  Kearn Nedd  came to
    Mr. Parkers aid. During the resulting fray, the second assailant opened fire from
    the doors of the banquet hall, spraying the hall with nine bullets. One of the shots
    hit Mr. Nedd, killing him. The two assailants fled in a waiting vehicle.

[2]

The first assailant, G.O., was also hit by
    gunfire from the second assailant. G.O. was taken to hospital by his
    confederates. A warranted search of his cell phone, among other investigative
    steps, led police to Kmar Kelly, John Morrone, Nirmalan Satkunananthan, and the
    appellants Marcus Alexis and Brian Funes.

[3]

Mr. Satkunananthan
told
    police that he was the inside man at the tournament. He said that he brought
    the tournament to Mr. Funess attention, and Mr. Funes asked him to contact him
    from inside the tournament and tell him how many people were there and where
    the money was being collected. Mr. Satkunananthan did so.

[4]

Mr. Morrone was initially charged with Mr.
    Nedds murder but agreed to become a Crown witness in exchange for immunity and
    participation in the witness protection program. Mr. Morrone testified that he was
    approached by Mr. Funes to plan the robbery on his behalf. At the time, Mr.
    Morrone was a drug dealer who also planned and executed robberies once or twice
    a month. According to Mr. Morrone, he recruited his associates G.O., Mr. Kelly,
    and Mr. Alexis. Mr. Morrone also supplied the guns. On Mr. Morrones account, G.O.
    was to run in and grab the money, Mr. Alexis would control the situation
    using his firearm, and Mr. Kelly would be the getaway driver. Neither Mr.
    Morrone nor Mr. Funes would be present at the scene of the robbery.

[5]

Mr. Morrone told the police that the two masked
    assailants were G.O. and Mr. Alexis, and furthermore that Mr. Alexis had confided
    to him that he was the assailant who opened fire on the banquet hall.

[6]

Mr. Alexis and Mr. Funes were jointly tried
    before a jury. Mr. Alexis was convicted of first degree murder and Mr. Funes was
    convicted of manslaughter.

A.

Issues on appeal

[7]

On appeal, Mr. Alexis argues that the trial
    judge:

a.

erred in his instruction on forcible confinement as a basis for constructive
    first degree murder;

b.

failed to sufficiently relate the evidence at trial to the legal
    issues in his instructions to the jury; and

c.

provided an unnecessarily complex jury instruction, leaving open
    routes of liability that were not available on the evidence.

[8]

Mr. Funes argues that the trial judge erred by:

a.

leaving party liability as an aider or abettor under s. 21(1) of the
Criminal Code
, R.S.C. 1985, c. C.46, with the jury; and

b.

failing to relate the law to the evidence in his instructions on ss.
    21(1) and 21(2) in addressing whether Mr. Funes possessed the necessary
mens
    rea
.

Mr. Funes also appealed from
    sentence. His appeal from sentence was ordered to be heard following the appeal
    from conviction, depending on the result.

B.

Alexis appeal

(1)

Introduction

[9]

The main issue at trial for Mr. Alexis was
    whether the Crown had proven the identity of the shooter beyond a reasonable
    doubt. The Crowns theory was that not only was Mr. Alexis present at the
    robbery, but according to Mr. Morrone, Mr. Alexis acknowledged that he was the
    shooter. The defences main argument was that Mr. Morrones identification of
    Mr. Alexis as the shooter was not credible. None of the eyewitnesses were able
    to identify Mr. Alexis.

[10]

Mr. Alexis was charged with first degree murder.
    The Crown relied on both planning and deliberation under s. 231(2) of the
Criminal
    Code
and constructive murder under s. 231(5)(e) (forcible confinement) to
    make out first degree murder.

[11]

Mr. Alexis argues that the trial judges charge
    on the requisite link between the forcible confinement and the murder was
    inadequate, that the trial judge failed to adequately relate the evidence to
    the legal issues, and that the trial judge gave a charge that was overly
    complex. As explained below, I disagree, and would dismiss the appeal.

(2)

Forcible confinement
    instruction

[12]

The trial judge instructed the jury that there
    were two routes through which it could convict Mr. Alexis of first degree
    murder. The first was constructive murder: if Mr. Alexis was found to have
    committed the murder while committing the offence of forcible confinement, he
    would be guilty of first degree murder pursuant to s. 231(5)(e) of the
Criminal
    Code
. The second route would be if the murder was found to have been a planned
    and deliberate killing, pursuant to s. 231(2) of the
Criminal Code
.

[13]

There is no dispute that the trial judges
    charge to the jury adequately stated the law with respect to the elements of the
    second route, planning and deliberation. But Mr. Alexis argues that the charge did
    not adequately explain the necessary conceptual link between the murder and the
    forcible confinement for the first route  constructive first degree murder 
    and risked leaving the jury with a misunderstanding of what was required for a
    conviction on that basis.

[14]

Mr. Alexis does not argue that the trial judge misstated
    the law with respect to constructive murder. He submits that the charge was
    nevertheless incomplete. More was required in the circumstances of this case to
    communicate to the jury that a temporal link between the offences was not in
    itself sufficient to establish constructive murder.

[15]

As explained below, I do not agree. The form of
    jury charge that was given in this case was substantially the same as one that has
    been expressly accepted by this court on numerous occasions, including recently
    in
R. v. Niemi
, 2017 ONCA 720, 355 C.C.C. (3d) 344, leave to appeal
    refused, [2019] S.C.C.A. No. 117. Nothing in the circumstances of this case
    rendered the instruction misleading or inadequate. In particular, it would not have
    misled the jury into concluding that only a temporal link was required to
    establish constructive murder.

(a)

While committing  the causal link

[16]

Section 231(5) of the
Criminal Code
deems culpable homicide to be first degree murder when the death is caused []
    while committing or attempting to commit an enumerated offence, in this case,
    forcible confinement. The rationale for this elevation of culpability was expressed
    in
R. v. Paré
, [1987] 2 S.C.R. 618, at p. 633, as the [offenders] continuing
    illegal domination of the victim which gives continuity to the sequence of
    events culminating in the murder. The victim who has been dominated in the
    commission of the predicate offence need not be the same victim who was
    murdered:
R. v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 43.

[17]

The salient phrase in s. 231(5)  while
    committing  has received extensive judicial commentary. This phrase has been interpreted
    as imposing the requirement that the murder and the predicate offence be
    distinct, yet part of the same series of events:
R. v. Kimberley
(2001),
    56 O.R. (3d) 18, at para. 108, leave to appeal refused, [2002] S.C.C.A. No. 29.
    The two offences must be linked together [] in circumstances that make the
    entire course of conduct a single transaction:
R. v. Pritchard
, 2008
    SCC 59, [2008] 3 S.C.R. 195, at para. 35.

[18]

A temporal link is not sufficient; it is not
    enough that the two offences be committed in succession. There must also be a
causal
link between the two offences:
Pritchard
, at para. 35. This link may
    be established in various ways. One way is where one offence was committed to
    facilitate the other, whether the predicate offence facilitated the commission
    of the murder or the murder facilitated the commission of the predicate
    offence:
Russell
, at paras. 43 and 48. Similarly, the causal link may
    be established where each offence was committed to facilitate some third
    offence, where the offences taken together can aptly be described as a single
    transaction.

(b)

The jury charge

[19]

The relevant portion of the jury charge reads as
    follows:

In order for Marcus Alexis to be guilty of
    first degree murder Crown counsel must also prove beyond a reasonable doubt
    that Marcus Alexis murdered Kearn Nedd while he was committing the offence of
    unlawful confinement.

This does not mean that the murder and the
    unlawful confinement have to happen at exactly the same time, the same moment,
    but it does mean that the murder and the unlawful confinement must be closely
    connected with one another, in the sense that they must be part of the same
    series of events. They must both be part of a single on-going transaction.

And again, to answer this question you have to
    consider the entire course of conduct of Marcus Alexis conduct. Look at the
    whole series of events that took place at the time of the shooting, the confinement,
    all of the witnesses you heard with respect to what was happening at the
    banquet hall. Look at the whole series of events.

The evidence may show that the murder and the unlawful
    confinement were all part of a continuous series of events that was really a
    single on-going transaction. On the other hand, the evidence may indicate
    otherwise. It is for you to say. Use your good common sense.



If you are satisfied beyond a reasonable doubt
    that the unlawful confinement and murder of Kearn Nedd were part of the same
    series of events, you must find Marcus Alexis guilty of first degree murder on
    this basis of liability.

[20]

It is readily apparent that the trial judge
    followed
Watts Manual of Criminal Jury Instructions
, 2nd ed. (Toronto:
    Thomson/Carswell, 2015), which recommends the use of the following language in
    explaining the meaning of while committing:

Were the (attempt to commit)
(specify
    listed offence)
and the murder of
(NOC)
part of the same series
    of events?

In order for
(NOA)
to be guilty of
    first degree murder, Crown counsel must also prove beyond a reasonable doubt
    that
(NOA)
murdered
(NOC)
while s/he was committing (or,
    attempting to commit) the offence of
(specify listed offence)
. This
    does not mean that the murder and the (attempt to commit)
(specify listed
    offence)
have to happen at exactly the same moment, but it does mean that
    the murder and the (attempt to commit)
(specify listed offence)
must
    be closely connected with one another, in the sense that they must be part of
    the same series of events. They must both be part of a single ongoing
    transaction.

To answer this question you have to consider
    the entire course of
(NOA)
's conduct. Look at the whole series of
    events in order to decide whether you are satisfied beyond a reasonable doubt
    that the murder and the
(specify listed offence or attempt)
were part
    of a continuous series of events that was a single ongoing transaction. The
    evidence may show that the murder and the (attempt to commit) (specify listed
    offence) were all part of a continuous series of events. Or it may not.

[21]

In
Niemi
, this court expressly approved
    of the above instruction, holding that it communicates effectively that more
    than a temporal connection is required for the murder and underlying offence to
    be linked for the purposes of s. 231(5). In
Niemi
, the trial judge
    went beyond the specimen instruction and added the further sentence that a
    single, ongoing transaction is a sequence of events or course of conduct that
    is interrelated or linear, ongoing and connected through time. The appellant
    in that case objected to the addition on the basis that it suggested that
    nothing more than a temporal connection was required. This court rejected that
    argument, holding that the instruction had to be taken as a whole, and that even
    if the added sentence was read in isolation, the use of the phrase a sequence
    of events or course of conduct that is interrelated made it clear that
    something more than a temporal connection was required.

[22]

Mr. Alexis argues that the
Niemi
charge
    was in fact superior to the present charge. He argues that for the jury to
    understand that a causal connection was required, it was not sufficient for the
    trial judge to tell the jury that the acts had to be part of the same series
    of events. The jury ought to have been told that it needed to find that the
    events were interrelated. Otherwise, the jury would be misled into thinking
    that all that mattered was the serial nature of the offences, in the sense
    that one happened after the other.

[23]

In oral argument, Mr. Alexis advanced a
    different argument: that the trial judge ought to have expressly instructed the
    jury that it had to find that the forcible confinement
facilitated
the
    murder.

[24]

I do not agree with either submission. For the
    judge to have instructed the jury that it had to find that the forcible
    confinement facilitated the murder would have been inaccurate. The instruction
    that the murder and the confinement had to be closely connected, in the sense
    of being part of the same series of events and a single, on-going
    transaction was correct. It is inherent in the concept of a
series
of
    events, in the context of the charge read as a whole, that there must be some
    unifying relation among the events. The continuing course of domination, in the
    language of
Paré
, is that unifying relation. Nothing more was required
    in the circumstances of this case.

[25]

On the theory articulated by Mr. Alexis, any
    confinement had ended or been interrupted by the time of the murder, severing
    any causal link between it and the murder. Mr. Alexis says that any confinement
    was interrupted because by the time of the murder, the attempted robbery had
    failed, and the first assailant had been overpowered and was struggling with
    Parker over control of the gun. A necessary implication of this argument is
    that once the attempted robbery was abandoned, any confinement in support of
    the robbery must also have ended; that is, the robbery and the confinement were
    necessarily co-extensive.

[26]

It should be noted that the predicate offence
    was not attempted robbery. It was confinement. It was not axiomatic that any
    confinement must have ended when the robbery attempt was abandoned. And, even
    if the confinement had ended, it does not necessarily follow that the temporal
    and causal link between the confinement and the murder was severed.

[27]

There were several options available to the jury
    to find a confinement occurred that was linked to the murder both temporally
    and causally. The confinement, on the Crowns theory, could have been of a
    security guard (who had been detained at gunpoint by the second assailant, and
    at the time of the shooting was hiding in the bathroom), of Mr. Parker (who was
    struggling to get control of the gun from G.O.), of the tournament patrons
    (some of whom were on the floor, with tables pulled on top of them), or all of
    them.

[28]

While arguably some of these confinements had
    ended by the time of the shooting, there was ample evidence upon which the jury
    could have found otherwise. There was evidence that all the exits from the
    banquet hall had been chained shut or otherwise barred by the tournament
    organizers in advance of the tournament. The sole exception was the entrance
    where Mr. Alexis had positioned himself with a gun.

[29]

It was for the jury to determine whether Mr.
    Alexis (alone or in concert with G.O.) had confined one or more persons, when
    those confinements ended, and whether, even if they had ended, they were still temporally
    and causally linked to the murder.

[30]

The charge enabled the jury to understand what it
    had to decide. Much like in
Niemi
, the language of a close connection
    and a single on-going transaction would have communicated to the jury that
    more than a temporal connection was required.

[31]

Mr. Alexis also argues that the trial judge
    erred by not reviewing Crown and defence positions in relation to the causal link.

[32]

Again, I disagree. The relationship between the
    confinement and the murder was obvious. Counsel for Mr. Alexis was provided an
    opportunity to review the draft jury charge and made no request that it be
    changed to better address the issue of the causal link. She chose not to
    address this issue in her closing submissions, focusing instead on the central
    issue of the identification of the shooter. It was not an error for the trial
    judge not to have articulated positions that defence counsel chose not to
    advance.

(3)

Relating evidence to the issues

[33]

Mr. Alexis argues that the trial judge failed in
    his obligation to review the evidence and relate it to the issues in the case.  Although
    the trial judge reviewed the evidence, Mr. Alexis argues that it was the type
    of
seriatim
, witness-by-witness summary that this court has frequently
    criticized as ineffectual, because it fails to equip the jury to understand how
    the evidence relates to the issues, and to the parties positions on those
    issues: see, e.g.,
R. v. Newton
, 2017 ONCA 496, 349 C.C.C. (3d) 508,
    at paras. 15-16;
R. v. Barreira
, 2020 ONCA 218, at paras. 26-40.

[34]

For example, Mr. Alexis argues that the trial
    judge ought to have instructed the jury that, on the question of the identity
    of the shooter, the primary evidence was that of Mr. Morrone. Because Mr. Morrone
    was a
Vetrovec
witness, the trial judge ought to have directed the
    jury that if it had a reasonable doubt about the truthfulness of his evidence,
    it was required to acquit Mr. Alexis. He ought, at the same time, to have
    directed the jurys attention to whether there were eyewitness descriptions of
    the shooter that corroborated Mr. Morrones evidence, and by setting out the
    defence position that Mr. Kelly  Mr. Morrones cousin  was the actual shooter
    and that Mr. Morrone was covering for him by pinning the blame on Mr. Alexis.

[35]

I would not accept this argument. In my view,
    the trial judges charge adequately conveyed to the jury the relationship
    between the evidence and the issues, particularly in light of the trial judges
    detailed
Vetrovec
warning in respect of Mr. Morrone and his careful
    review of Mr. Morrones evidence on cross-examination.

[36]

There is a wide latitude given to trial judges
    in organizing and drafting their charges. As Doherty J.A. stated in
R. v. Bouchard
,
    2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 40, affd 2014 SCC 64, [2014] 3
    S.C.R. 283:

Evidence [] can be reviewed in minute detail
    or more generally by reference to topics or relevant areas of the evidence. Neither
    type of review is inherently right or wrong. If a trial judge, after full
    consultation with counsel, and with counsels at least tacit approval, settles
    on one method, it would be a rare case where an appeal would be allowed on the
    basis that the other method of reviewing the evidence was essential to a proper
    jury instruction.

[37]

Here, there was a substantial amount of evidence
    that related to multiple accused, each facing a different charge. The trial
    judge provided an extensive summary of the evidence. In the context of a four-month
    trial, this is neither surprising nor inappropriate. The summary was neither
    unfocussed nor disorganized. It followed a structure that the trial judge
    explained to the jury at the outset: (1) testimony as to the key events: tournament,
    robbery, and shooting; (2) the evidence of witnesses who saw the two men coming
    and leaving the banquet hall; and (3) the evidence of the two key
Vetrovec
witnesses. The charge, read as a whole, sufficiently related the evidence to
    the matters in issue. I also note that although defence counsel at trial
    initially raised this issue in response to an early draft of the charge, after
    the trial judge made changes to the draft charge, she did not pursue it further.

[38]

With respect to the evidence of Mr. Morrone 
    the key witness in the trial  the trial judge gave a strong
Vetrovec
warning. He directed the jury that it would be dangerous to rely on Mr.
    Morrones uncorroborated evidence. Mr. Alexis does not argue that the
Vetrovec
warning was deficient in any way.

[39]

Later in the charge, the trial judge reviewed
    the cross-examination of Mr. Morrone in detail. That review served to remind
    the jury of how thoroughly Mr. Morrones evidence was challenged on the key
    issue for Mr. Alexis: the identity of the shooter. It raised the defence theory
    that Mr. Morrone was covering for Mr. Kelly, the actual shooter. The trial
    judge reminded the jury of Mr. Morrones evidence that he loved Mr. Kelly like
    a brother, as well as his denial in response to counsels suggestion that Mr.
    Kelly was the actual shooter. Further, near the conclusion of the charge, in
    setting out the position of the defence, the trial judge reviewed the differing
    eyewitness evidence and Mr. Morrones close relationship with Mr. Kelly.

[40]

In the circumstances, it would have been clear
    to the jury that the key issues in the case against Mr. Alexis turned on the
    evidence of Mr. Morrone, that his evidence had been challenged extensively in
    cross-examination, and that it was essential that they take great care before
    relying on his evidence. It was open to the trial judge to structure the charge
    as he did, and his approach does not reflect error.

(4)

Unnecessarily complex charge

[41]

This ground of appeal was not pursued at the
    hearing. In any event, I would reject it. While the charge could have been more
    concise, it was not overly complex.

(5)

Conclusion

[42]

I would dismiss the appeal of Mr. Alexis.

C.

Funes appeal

(1)

Introduction

[43]

Mr. Funes was not present at the robbery. On the
    Crowns theory, the poker tournament heist was his project and he retained Mr.
    Morrone  as a general contractor  to plan and oversee it. On the defence
    theory, Mr. Morrone was the originating and directing mind of the robbery and
    Mr. Funes was at most a simple intermediary, forwarding information to Mr. Morrone
    that he received from Mr. Satkunananthan on the tournament floor.

[44]

Mr. Funes was charged with manslaughter with a
    firearm under s. 236(a) of the
Criminal Code
. In the charge to the
    jury, the trial judge explained that there were two bases on which they could
    convict Mr. Funes of manslaughter: (1) under s. 21(1), a route of liability he
    referred to as Unlawful Act Manslaughter; and (2) under s. 21(2) as Common Unlawful
    Purpose manslaughter.

[45]

As explained below, I agree with Mr. Funes that the
    first of those routes of liability was not available on the evidence. It was an
    error for the trial judge to have left it with the jury. As it is impossible to
    know which of the two routes the jury took in determining Mr. Funes to be guilty
    of manslaughter, there is a risk that he was found guilty based on an erroneous
    understanding of the law. I would set aside the conviction and order a new
    trial.

(2)

Instruction on party liability for manslaughter

[46]

Section 21 of the
Criminal Code
reads
    as follows:

Parties to offence

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the
    purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Common intention

(2) 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.

[47]

Liability under s. 21(1) is intended for offenders
    who participate in the offence actually committed, whether as a principal, an
    aider, or an abettor:
R. v. Simon
, 2010 ONCA 754, 104 O.R. (3d) 340,
    at para. 39, leave to appeal refused, [2010] S.C.C.A. No. 459. Section 21(2),
    on the other hand, extends liability beyond the offence actually committed to
    persons who participated in an unlawful enterprise with others and either knew
    or, in most cases at least, should have known that one (or more) of the other
    participants in the original enterprise would likely commit the offence charged
    in pursuing their original purpose:
Simon
,

at para. 41.

[48]

In his instruction to the jury on s. 21(1), the
    trial judge told the jury that to convict Mr. Funes of manslaughter under this
    route to liability, they would have to be convinced beyond a reasonable doubt
    that: (a) Mr. Funes had participated in an unlawful act  the planning,
    organizing, and implementation of the armed robbery  as a perpetrator, aider,
    or abettor; (b) the unlawful act (the armed robbery) was objectively dangerous;
    and (c) the unlawful act caused Mr. Nedds death.

[49]

Mr. Funes is satisfied with the instruction
    under s. 21(2) but argues that the s. 21(1) instruction went wrong from the
    outset. I agree.

[50]

In this case, the offence actually committed for
    the purposes of s. 21(1) was the unlawful killing of Mr. Nedd. The unlawful act
    which caused Mr. Nedds death was the second assailants firing his firearm
    into the crowded banquet hall. Mr. Funes would have to have participated in
    this unlawful act as a principal, aider, or abettor to be liable for
    manslaughter under s. 21(1).

[51]

At trial, both the Crown and the defence took
    the position that robbery was the unlawful act forming the basis for
    manslaughter. This led the trial judge into error. Were the relevant offence robbery
    for the purpose of s. 21(1), it would make s. 21(1) and s. 21(2) largely indistinguishable.

[52]

In
R. v. Kelly
, 2017 ONCA 920, 138 O.R.
    (3d) 241, a case involving a party to the same robbery as in this case, Doherty
    J.A. concluded that the accuseds liability for manslaughter flowed exclusively
    from s. 21(2). Doherty J.A.s reasoning at paras. 25-26, applies equally here:

On the Crowns case, the [accused] 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 [accuseds] role
    in planning or executing the robbery could not make him an aider in the
    homicide that occurred during the robbery.

I think this was quintessentially a case for
    the application of s. 21(2). The [accused], 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.

[53]

The respondent submits that this court should be
    reluctant to take too much from the decision in
Kelly
because the
    accused in that case played a different role in the robbery and the evidence
    heard in each case was different. In my view, the differences between the
    accused and the evidence do not affect the applicability of the principles of
    party liability set out in that case by Doherty J.A.

[54]

The respondent points to three aspects of the
    evidence to argue that the jury could have concluded that Mr. Funes assisted
    the assailants in harming the victims of the robbery:

1.

Mr. Funes must have known that they would need force to commit the
    robbery;



2.

Mr. Funes retained Mr. Morrone, who had a reputation for armed
    robbery; and



3.

Mr. Funes took various steps to facilitate the robbery.

[55]

In my view, all these factors speak to Mr.
    Funess participation in
the robbery
and his
knowledge or foresight about the

potential consequences

of the robbery. This is relevant under s. 21(2)  whether Mr. Funes knew
    or ought to have known that bodily harm was a probable consequence of carrying
    out the robbery. But in this case, this evidence does not speak to whether Mr.
    Funes did anything for the purpose of aiding the robbers in harming any of the
    victims of the robbery:
Kelly
, at para. 25. There was no evidence,
    for example, that Mr. Funes had any role in procuring the firearms or providing
    them to the two assailants. Mr. Morrones evidence was that Mr. Funes did not
    encourage or direct the use of firearms in the robbery. He testified that Mr.
    Funes was not involved in the detailed planning of the robbery and that they
    did not discuss the use of firearms. And Mr. Funes was not present for the
    robbery to assist the assailants in harming the victims.

[56]

As in
Kelly
, Mr. Funess role in
    planning and executing the robbery could not make him an aider in the homicide
    that occurred during the robbery: at para. 25.

[57]

The respondent also relies on Mr. Funess
    actions
after
the robbery, such as participating in the cleanup, and
    says that this evidence was capable of supporting a reasonable inference of [his]
    knowledge and intent before the robbery. I accept that this was circumstantial
    evidence going to Mr. Funess
knowledge
(and therefore relevant under s. 21(2)), but in the absence of any evidence
    that he
did
anything for
    the purpose of aiding the robbers in harming the victim, it cannot on its own support
    liability under s. 21(1).

(3)

Prejudice

[58]

The Crown argues that there was an overwhelming
    case for conviction under s. 21(2), and that even if it was an error to leave
    s. 21(1) available to the jury, no harm was done, and this court ought to apply
    the curative proviso under s. 686(1)(b)(iii) of the
Criminal Code
.

[59]

Whatever the strength of the case under s.
    21(2), it cannot be said that there was no prejudice to Mr. Funes in leaving s.
    21(1) available.

[60]

First, we cannot know which of the two possible
    routes to liability the jury took. There is a possibility that Mr. Funes was found
    guilty under a section of the
Criminal Code
that could not apply to
    his actions, and not found guilty under the section that could.

[61]

Second, the level of
mens rea
required
    for a conviction for aiding in an offence under s. 21(1)  as explained to the
    jury in this case by the trial judge  is less than what is required for a
    conviction under s. 21(2). Section 21(2) contains an additional requirement that
    the Crown establish that the accused had the objective foresight that his confederate
    would commit the secondary offence in the course of carrying out the common
    purpose.

[62]

By contrast, the trial judge told the jury that
    under s. 21(1), all they had to find was that Mr. Funes participated in
    planning or carrying out the robbery, that robbery was objectively dangerous,
    and that the robbery caused Mr. Nedds death. Accordingly, in this case, s.
    21(1) presented an easier route to conviction than s. 21(2), which compounds
    the potential prejudice to Mr. Funes of the erroneous charge.

[63]

This is sufficient to allow the appeal and order
    a new trial. It is unnecessary to address Mr. Funess further grounds of
    appeal. Mr. Funess appeal from sentence is, as a result, moot.

D.

DISPOSITION

[64]

I would dismiss the appeal of Mr. Alexis. I
    would allow the conviction appeal of Mr. Funes, set aside the conviction, and
    order a new trial.

Released: KF JUN 1 2020

B.W. Miller J.A.

I agree. K. Feldman J.A.

I agree. E.E. Gillese J.A.


