



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McLellan, 2018 ONCA 510

DATE: 20180601

DOCKET: C59638 and C60493

Doherty, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristopher McLellan and Kyle Mullen

Appellants

Brian Greenspan and Naomi Lutes, for the appellant Kyle
    Mullen

Matthew R. Gourlay, for the appellant Kristopher
    McLellan

Jamie Klukach and Karen Shai, for the respondent Her
    Majesty the Queen

Heard: March 20, 2018

On appeal from the conviction entered on October 25, 2013
    by Justice G.P. Smith of the Superior Court of Justice, sitting with a jury.

Rouleau J.A.:

OVERVIEW

[1]

The appellants, Kristopher McLellan and Kyle Mullen, robbed the
    residence of a drug dealer in Barrhaven with their friend Dylon Barnett.
    McLellan and Barnett were armed with guns. McLellan shot and killed one of the
    residents. On his account, the gun went off accidentally. A jury convicted
    McLellan of first degree murder. Mullen was acquitted of first degree murder
    but convicted of second degree murder.

[2]

For the reasons that follow, I would dismiss McLellans appeal. However,
    I would allow Mullens appeal. The trial judge erred in his jury instruction on
    the
mens rea
for party liability to murder under s. 21(2) of the
Criminal
    Code
. I would therefore set aside Mullens conviction and order a new
    trial on the charge of second degree murder.

FACTS

[3]

Around Christmas 2009, Sam Tsega, who lived in Barrhaven, was visiting
    his friend Dylon Barnett in Toronto. They were socializing at Barnetts house
    along with Barnetts friend, the appellant McLellan. Tsega mentioned that
    another resident of Barrhaven, Michael Swan, was a marijuana dealer who
    regularly had significant sums of money and amounts of marijuana in his
    residence and did not own a gun. In fact, Swan had recently been robbed of his
    inventory of marijuana and about $20,000. He did not report the theft to the
    police. They agreed that he was an easy target.

[4]

Over the next few weeks, this informal exchange morphed into a plan. McLellan
    and Barnett began to make plans to travel to Barrhaven and rob Swan.

[5]

Barnett had a gun but it was decided that they needed a second gun and another
    person to commit the robbery. McLellan testified that in early February, they
    recruited his friend Kyle Mullen and asked Mullen if he could obtain a gun.
    Mullen arranged to obtain a nine-millimeter Sig Sauer P-226 handgun.

[6]

On February 21, 2010, armed with two loaded handguns, the three drove
    from Toronto to Ottawa. Tsega directed them to where Swan lived but did not go
    with them.

[7]

McLellan was the only accused who testified at trial. He said that
    before entering the house, Mullen told him that he did not want to carry
    through with the robbery. Urged on by McLellan and Barnett, Mullen agreed to
    follow through but only on the basis that he would not carry the gun. He therefore
    handed the Sig Sauer to McLellan. The evidence was that the gun was racked at
    some point before the home was entered.

[8]

Swan was home in his bedroom watching the Olympics with his girlfriend
    Kaitlyn Scott and his friend Tyler Tanguay. Two other residents of the home,
    Tyler Vergette and Russel Smith, were in their respective bedrooms.

[9]

Shortly after midnight, the three robbers entered the home wearing black
    balaclavas and burst into Swans bedroom. McLellan entered the room first,
    brandishing a gun. The robbers yelled for everyone to get down on the floor and
    to throw away their cell phones. Everyone complied.

[10]

The
    robbers demanded to know where the drugs and money were hidden. According to
    Scott, although McLellan seemed to be the leader, all three robbers were making
    demands. Swan said something to the effect of I dont know.

[11]

Within
    seconds, McLellan shot him. Scott testified that this occurred after Swan had
    made some kind of a downward or crouching movement. According to Tanguay
    however, Swan had simply been lying on his side between the bed and coffee
    table when the shot went off. He thought that Swan may have been in motion when
    he was shot but he could not be sure. Scott and Tanguay testified that the
    sequence of events leading up to the shot happened very quickly.

[12]

According
    to McLellan, however, Swan made a sudden movement towards him and bumped the
    gun. In a reflexive action, McLellan says that he gripped the handle to avoid
    dropping the gun and the gun accidentally discharged. He testified that he was
    in complete shock and did not realize the trigger had been pulled. Everyone
    remained quiet for a moment and he backed up telling everyone not to move.

[13]

The
    bullet entered Swans body through the back of his right shoulder passing
    diagonally across his torso. It pierced several of his vital organs and exited
    the front of his body above the left hip. Although Scott and Tanguay said the
    gun was one or two feet away from Swan when it was discharged, the pathologist testified
    that it was a contact wound. The imprint of the gun on Swans shoulder
    indicated that the gun barrel had been pressed firmly into his shoulder when it
    was discharged.

[14]

According
    to Scott and Tanguay, the robbers said nothing to one another and were
    expressionless immediately after the shooting. Tanguay described them as
    nonchalant. They simply continued to ask questions about the location of the
    drugs and money, hounding Scott in particular as they knew she was Swans
    girlfriend.

[15]

When
    Scott tried to touch Swan as he lay motionless on the floor, McLellan told her
    not to move and that he would be fine.

[16]

Barnett
    asked if anyone else was in the house. He was told that there were two other
    residents, Smith and Vergette. McLellan went to Vergettes room, forced the
    door open and ordered him into Swans room. The group was then directed to a
    spare bedroom where the robbers told them to sit on the ground against the wall
    with their hands up. Barnett located Smith and ordered him into the spare
    bedroom as well. One of the robbers stood guard while the other two searched
    the house for drugs, money and valuables.

[17]

At
    one point, one of the robbers entered the room and said weve got what we
    need and flashed a wad of cash. According to Vergette, one of the intruders
    entered the spare room with a box and a bag of marijuana saying I thought you
    didnt know where the marijuana was.

[18]

Scott
    testified that McLellan asked her if there were any videogames because he had a
    child. In response, she led him to where they were kept in Swans room.  McLellan
    testified that Swan was still lying on the floor.

[19]

According
    to McLellan, at some point Barnett took the Sig Sauer from him and removed the
    bullet from the chamber so that it would not fire accidentally again.

[20]

The
    robbers then directed everyone down to the sauna in the basement. Vergette
    testified that Scott asked about calling an ambulance. McLellan responded that
    Swan would be fine.

[21]

McLellan
    left and got the car. The group was told that they were to wait in the sauna
    for five to ten minutes or risk being killed. The robbers then left.

[22]

After
    a few minutes, Scott and the others went upstairs to check on Swan who by then
    was dead. They called 911. When the police arrived, Scott told them that the
    robbers had taken her cellphone. The police tracked the signal of the phone and
    identified the vehicle driving along Highway 401 toward Toronto. They effected
    a high-risk takedown and arrested McLellan, Mullen and Barnett. Mullen was in
    possession of the Sig Sauer. The magazine did not contain any bullets. Barnett
    was in possession of the second handgun.

[23]

McLellans
    defence at trial was that the gun had gone off accidentally. The Crown called
    Jacques Rioux, a firearms expert, who had examined the Sig Sauer that shot
    Swan. He testified that the force required to pull the trigger and discharge
    the cartridge is 7.6 pounds in single action mode (where the hammer is cocked) and
    18 pounds in double action mode (where the hammer has not been cocked). In
    addition, Rioux testified that he performed several tests on the weapon and
    determined that the gun would not discharge when dropped or from blows to the
    surface of the gun. In fact, he testified that he had never seen a Sig Sauer
    discharge in these scenarios. The jury was permitted to handle the gun and pull
    the trigger in both the single and double action mode.

[24]

Mullen
    did not testify. Mullens trial counsel focused on his minimal involvement in
    the planning and execution of the robbery and emphasized that he intended only
    to commit a robbery, and did not intend or expect a killing to take place.

[25]

Part
    way through the trial, it was discovered that contrary to the trial judges
    instructions, a juror had brought law books with him into the jury room and had
    been carrying out his own research on the internet. He had accessed Wikipedia
    and the Department of Justice website.

[26]

After
    interviewing the juror and receiving submissions from counsel, all parties agreed
    that the juror should be discharged. He was excused and told not to inform the
    other jurors of what had happened or why he was being excused. The other jurors
    were simply told that he had been excused.

[27]

The
    jury returned a verdict of first degree murder with respect to McLellan. Mullen
    was acquitted of first degree murder but convicted of second degree murder and
    sentenced to life imprisonment without eligibility for parole for 15 years.

ISSUES

[28]

The
    appellants raise several grounds of appeal:

1.

Both appellants submit that the trial judge erred in his instruction on
    post-offence conduct;

2.

McLellan argues that:

(a)
    the trial judge responded inappropriately to the jurys request to rehear a
    portion of McLellans cross-examination; and

(b) the verdict for
    first degree murder was unreasonable;

3.

Mullen maintains that the trial judge:

(a)
    erred in his instructions on the
mens rea
required for party liability
    to murder;

(b) gave an
    unbalanced and inadequate charge;

(c)
    erred in his instruction on reasonable doubt;

(d) erred in his
    instruction on the use the jury could make of McLellans evidence when
    considering Mullens liability;

(e) after
    discharging the juror for carrying out independent inquiries, erred in failing
    to take adequate steps to ensure that the other jurors had not been
    contaminated; and

(f) erred in his approach
    to the
Gladue
principles by requiring a causal link between Mullens
    aboriginal heritage and the offence, resulting in an excessively long period of
    parole ineligibility.

ANALYSIS

(1)

The post-offence conduct issue

[29]

In
    light of McLellans admission that he shot Swan and planned and executed the
    robbery, the only real issue at trial was whether he shot Swan accidentally or
    on purpose. If he was shot on purpose, the jury then had to determine whether McLellan
    was forcibly confining Swan when he shot him, which, pursuant to s. 231(5)(e),
    elevates the killing to first degree murder.

[30]

To
    prove the intent for murder, the Crown relied on several elements of the
    evidence led. This included the fact that the robbery was planned, that a decision
    was made to bring two guns to the robbery, the unlikelihood that the Sig Sauer would
    discharge accidentally, the location and trajectory of the bullet wound, as
    well as Tanguay and Scotts evidence describing how the shooting occurred and
    its aftermath.

[31]

However,
    the Crown also relied on the robbers post-offence conduct in support of its thesis
    that the shooting was intentional. This consisted of three elements: the
    robbers failure to display any noticeable reaction to the shooting; the fact
    that they continued with their demands and pursued the robbery without
    hesitation after the shooting; and the fact that they did not assist the victim
    and prevented anyone else from assisting.

[32]

All
    three of these elements of post-offence conduct were left with the jury
    together with appropriate cautions being given by the judge as to how this
    evidence could and could not be used.

[33]

On
    appeal, the appellants raise two issues with respect to the post-offence
    conduct. First, they argue that this evidence was not probative as
    circumstantial evidence going to the state of mind of McLellan or Mullen when
    the victim was shot. The trial judge should have given a no probative value
    instruction in respect of all or at least parts of that evidence.

[34]

Alternatively,
    they submit that the caution given by the trial judge with respect to the
    permissible uses of the post-offence conduct was inadequate. I will consider
    these two issues in turn.

(a)

Was the post-offence conduct probative of intent?

[35]

At
    trial and again on appeal, McLellan and Mullen argue that all three elements of
    the post-offence conduct were highly susceptible to error and moral prejudice such
    that a no probative value instruction to the jury was required. The failure to
    do so constitutes, in their submission, reversible error.

[36]

As
    for the first element, the appellants submit that the testimony of Tanguay and
    Scott to the effect that there was no noticeable reaction to the shooting and
    that the perpetrators seemed nonchalant is of no probative value. McLellan
    highlights that the robbers all wore balaclavas and the witnesses could not,
    therefore, see facial expressions. In his view, there was little evidence one
    way or the other of how they reacted to the shooting. Drawing inferences from
    facial expressions and demeanour is fraught with difficulty at the best of
    times. To do so without the benefit of facial expressions is therefore highly
    dangerous. In addition, McLellan argues that even if it is accepted that there
    was a failure to react, this is consistent with his testimony to the effect
    that after the gun went off accidentally, he was in a state of shock.

[37]

With
    respect to the second component of the post-offence conduct, that the
    perpetrators continued with their demands and followed through with the robbery
    despite the shooting, the appellants maintain that this evidence is of no assistance
    in determining the state of mind of either McLellan or Mullen. In their
    submission, this is because, on all accounts, the robbery is what they had come
    from Toronto to do. That they followed through with the robbery is of no
    evidentiary value either way.

[38]

Finally,
    the appellants argue that leaving the jury with the robbers failure to check
    on Swans condition and having prevented others from doing so was highly
    prejudicial and had the potential to poison the jury against them. In McLellans
    submission, the failure to check on Swan provided little or no insight into the
    central issue of his intent at the moment he pulled the trigger. Mullen points
    out that the only evidence as to the appellants understanding of Swans
    condition was that they thought he was fine. In the submission of both
    appellants, jurisprudence such as
R. v. Angelis
, 2013 ONCA 70, 296
    C.C.C. (3d) 143, at para. 58, clearly establishes that the failure to assist a
    dying victim is not probative of intent.

[39]

Mullens
    position is that the post-offence conduct was even less relevant to his intent
    given his peripheral role. The evidence established that McLellan was the
    shooter and, by all appearances, was the leader who took charge after the shot
    was fired and directed the other two perpetrators. Mullen therefore submits
    that he should simply be seen as having complied with the directions of the
    shooter. His purported lack of reaction could support at least two other
    equally rational inferences: first, that Mullen was in shock and merely
    continued to follow McLellans plan without thinking, or second, that Mullen
    was scared and upset because at that point he realized that he should have
    known that someone would get hurt.

[40]

I
    would reject this ground of appeal. In my view the post-offence conduct was
    highly probative. As I will explain, the force and significance of the post-offence
    conduct is most clear when the three elements are viewed as a whole.

[41]

I
    turn first to the evidence of McLellan and Mullens failure to react when Swan
    was shot. In
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, Rothstein
    J. speaking for the plurality dealt with the probative value of a shooters reaction
    to a shooting. He explained at para. 70 that:

[L]ogic and human experience suggest that people are more
    likely to show some outward sign, such as hesitation, before continuing on with
    their actions, when they do something accidentally than when they do it on
    purpose. This is all the more so when the accident involves a sharp physical
    effect on the person (the discharge of a gun in ones hand) and results in a
    terrible consequence, such as having killed another person.

Later, at para. 79, he concluded:

I have no doubt that had there been evidence of hesitation,
    defence counsel would have submitted it as probative of an accident. Divergence
    from this norm, though not determinative, is more consistent with an
    intentional shooting than with an accident. It would therefore have been wrong
    for the trial judge to instruct the jury that this evidence had no probative
    value in determining intent, as Mr. White suggests he should have. It was not
    irrelevant.

[42]

The
    force of this logic was confirmed by Charron J. in separate reasons in
White
, with which Deschamps J. concurred
. While
    Charron J. was of the view that there was no evidence available as to the shooters
    demeanour when he fled the scene, in her view, had there been evidence to that
    effect, there was no reason to exclude it from the jurys consideration. She provided
    the following illustration, at para. 126:

Consider, for example, if the witnesses had indeed described
    the shooter looking surprised or shocked at the time the last shot went off, or
    stooping down to check on Mr. Matasis condition and hesitated for a few
    seconds before taking off. The jury would be entitled to the benefit of these
    observations. Indeed, given the defences strategy in this case, such evidence
    would have played a central role in the case for the defence. In my view, when
    considered in context, the Crowns comment that there was no hesitation here,
    no shock, no uncertainty could only have been understood by everyone present
    as a rhetorical observation that there was no evidence of this nature and hence
    that the
defence theory
that the gun had gone off accidentally should
    not be given any credence. [Emphasis in original.]

[43]

On
    the facts of the present case, the inference that can be drawn is strengthened
    by the second element of the post-offence conduct, which involves a key
    distinction from the facts in
White
.
    In
White
,
the shooter immediately fled, and only the relevance of his lack of a reaction
    prior to flight was at issue. Here, not only was there a lack of reaction or
    surprise, but also the immediate continuance of demands as to the location of
    the drugs and money. This evidence of the robbery being pursued without missing
    a beat served to rebut McLellans claim that he was in shock after Swan was
    shot. It also suggested that Mullen was not, as his counsel suggested,
    reluctantly continuing with a robbery gone wrong. Rather, it showed both McLellan
    and Mullen as being unfazed by the occurrence of a shooting during the execution
    of their planned robbery.

[44]

I
    also view the third aspect of the post-offence conduct, the failure to assist
    Swan and preventing others from assisting him, to be probative. It is simply a
    matter of common sense. As Charron J. observed in
White
, the evidence
    of a shooter stooping down to check on a victims condition would surely be properly
    left with the jury, and furthermore, would likely be relied upon by the defence
    to suggest that the shooting was accidental: see
White
,
at para. 126. The failure to show any
    concern is likewise, in my view, capable of supporting the opposite inference
    that the shooting was intentional.

[45]

The
    appellants reliance on
Angelis
to suggest that no such inference can
    be drawn is misplaced. That case turned on specific facts. In
Angelis
,
    the accused was aware that he had killed his wife in the course of a physical
    altercation. Here, McLellan testified that he did not think Swan was dead. More
    significantly, the appellants not only failed to provide assistance to Swan, but
    they also prevented the other victims from doing so.

[46]

What
Angelis
also makes clear is
    that post-offence conduct is not subject to blanket rules, and that its
    probative value depends on the nature of the evidence, the issues at trial and
    the positions of the parties: see para. 55. There is no
per se
rule
    declaring post-offence conduct irrelevant to the perpetrator's state of mind:
    see
R. v. Jackson
, 2016 ONCA 736, [2016] O.J. No. 6777, at para. 21;

R. v. Rodgerson
, 2015 SCC 38,
    [2015] 2 S.C.R. 760, at paras. 20-21.

[47]

In
    my view, the proper approach is to view the post-offence conduct as a whole. It
    should not be considered in a piecemeal fashion: see
R. v. Moffit
,
    2015 ONCA 412, 326 C.C.C. (3d) 66, at para. 37, leave to appeal refused, [2015]
    S.C.C.A. No. 465.

[48]

Consider
    a modified version of the sequence of post-offence conduct in this case. What
    if the shooter had shown concern for Swans condition, and then resumed the
    robbery? What if the robbers had immediately abandoned the robbery and escaped
    after the shooting?

[49]

These
    examples illustrate that post-offence conduct is best assessed cumulatively and
    not in isolation. It is only when the components of the conduct at issue are
    viewed together that the strength and cogency of the inference sought can be
    measured. The three elements of the conduct in this case, taken together, leave
    little doubt that the post-offence conduct had significant probative value with
    respect to the issue of intent.

(b)

Were the trial judges instructions on post-offence conduct adequate?

[50]

The
    appellants alternate submission is that even if the post-offence conduct evidence
    was probative, the trial judge did not properly caution the jury about the
    limited use they could make of it in assessing whether the
mens rea
for murder was made out.

[51]

I
    disagree. The trial judge gave comprehensive and careful instructions that
    mitigated against any potential misuse of the post-offence conduct evidence.
    The trial judges charge and recharge included the following:

a)

the
    post-offence conduct was to be considered along with all of the other evidence;

b)

the
    jury should [k]eep in mind that post-offence conduct has only an indirect
    bearing on the issue of the accuseds guilt and must be careful about
    inferring the accuseds guilt from this evidence because there might be other
    explanations for this conduct;

c)

it
    was important for the jury to consider alternate explanations for the conduct
    that do not support an inference [of] the state of mind required for murder;

d)

the
    jury should bear in mind that the intruders were masked such that facial
    expressions could not be seen; and

e)

the
    jury should not infer from the evidence that the appellants did not assist Swan
    that they were men of bad character and therefore likely to commit the offence
    with which they are charged.

[52]

Tracking
    Justice Watts model instructions, the trial judge made it clear that the jurors
    should be cautious in drawing inferences from post-offence conduct and should
    carefully consider alternative inferences. The trial judge also reviewed the
    evidence at some length and, in a recharge, gave all of the additional
    instructions on the permissible use of post-offence conduct sought by the
    appellants counsel.

[53]

Mullen
    also argues that the trial judges instruction on post-offence conduct was
    unbalanced. Specifically, he argues that the trial judge failed to fairly
    contrast the prejudicial post-offence conduct evidence with McLellans evidence
    that he fired by accident and that nobody said anything after because they were
    shocked. Highlighting this evidence as well as other evidence, such as the
    testimony of Scott and Smith that the robbers appeared nervous, would have
    served to balance the instruction.

[54]

I
    disagree. At trial, counsel for the appellants referred to some of this
    evidence in their closing to the jury. The level of detail a judge is required to
    go into to assist the jury in linking evidence to the issues will vary
    depending on the context:
Rodgerson
, at para. 30. Here, the inference
    being sought by the Crown was a straightforward matter of common sense and
    human experience. The trial judge did not need to list all of the evidence
    related to the inferences being sought either by the Crown or the defence.

[55]

At
    trial Mullen did not take the position that the charge was deficient in this
    manner. This case is different from
Rodgerson
, upon which the
    appellants rely.
Rodgerson
is an example of a case where the
    inferences to be drawn from the conduct were somewhat complicated. The evidence
    could only be permissibly used with respect to some issues at trial, and not
    with others. The varying degrees of relevance of the post-offence conduct would
    not have been readily apparent to the jury. In short, the probative value of
    the evidence in
Rodgerson
was more than a matter of common sense:
    para. 31. It is in such cases that the trial judge has been found to have a
    duty to make sure that the jury understands how the evidence can be used if it
    is to have the probative effect argued by the Crown.

[56]

In
    the present case, however, the inference that could be drawn from the post-offence
    conduct was straightforward: the appellants carried on as if nothing unexpected
    had happened because nothing unexpected had, in fact, happened. This evidence
    was capable of supporting the inference that the shooting was not accidental,
    and that Mullen knew that murder as defined by s. 229(a) was a probable
    consequence of the robbery.

[57]

As
    a result, I have concluded that the charge on post-offence conduct, viewed as a
    whole, was thorough and balanced.

2 (a)

The
    trial judges response to the jurys request to rehear a portion of McLellans
    cross-examination

[58]

In
    the morning on the first full day of its deliberations, the jury asked the
    judge to clarify the definition of intent for murder in relation to the portion
    of the charge addressing McLellans state of mind. The trial judge clarified
    that meant to, the language used in the charge, meant the same thing as
    intended to.

[59]

Later
    that afternoon, the jury asked to review a transcript of McLellans
    cross-examination. The jury was told there was no transcript but that they
    could hear an audio playback. The judge asked whether it would assist to also
    hear McLellans evidence in chief and the jury agreed.

[60]

The
    next day, the jury sent a note explaining that they were only interested in the
    first day of McLellans cross-examination. At the suggestion of McLellans
    counsel, the jurors were asked whether they were interested in a particular
    issue or portion of the cross-examination. The jury responded by limiting its
    request to the portion of the cross-examination regarding the number of bullets
    that were in Barnetts gun.

[61]

In
    McLellans submission, it should have been obvious from this question, and the
    fact that several hours earlier the jury had asked about the meaning of intent
    for murder, that the jury was struggling with the question of McLellans
    intent. The Crowns cross-examination on the issue of how many bullets were in
    Barnetts gun was, in McLellans submission, meant to show that he must also have
    known that Mullens gun was also loaded and ready to fire.

[62]

In
    these circumstances, according to McLellan, it was crucial that the trial
    judges response to the playback request be accurate and complete. By limiting
    the playback to the portion of the cross-examination relating to the number of
    bullets in Barnetts gun, the trial judge risked confusing the question of what
    McLellan knew or should have known about Mullens gun with the question of whether
    or not he intended to pull the trigger in the instant before he shot Swan.

[63]

In
R. v. D.D.
(1998), 129 C.C.C. (3d) 506 (Ont. C.A.), at para. 7, affd
    on other grounds, 2000 SCC 43, [2000] 2 S.C.R. 275, this court summarized the
    duty of a trial judge when responding to a jury request to play back the evidence
    of a witness as follows:

It is well recognised that there is a duty on a trial judge to
    ensure that any evidence read back to the jury as a result of a jury question
    should be read back together with any other portions of the evidence that
    qualify or contextualize it.

[64]

In
    McLellans submission, the trial judge ought to have ensured that the jury also
    reviewed relevant portions of McLellans evidence in chief, including his
    explanation of his state of mind when he took the gun into the house. In
    addition, the trial judge ought to have directed the jury that McLellans
    recklessness in respect of the loaded gun was not to be conflated with the
    question of intent to kill.

[65]

I
    disagree. Ultimately, it became clear that the jury only wanted to hear a specific
    portion of McLellans cross-examination on one point, a point that did not
    arise during his evidence in chief. There was no qualifying evidence required on
    the issue.

[66]

McLellans
    suggestion that the playback request signalled jury confusion on the legal
    issue of intent raised in a much earlier question is speculative and flawed. There
    was no temporal or logical basis for a link between the jurys question about
    intent and the later request to rehear a portion of the cross-examination of
    McLellan. The jurys question on the issue of intent had already been answered
    correctly earlier that morning. It was not the function of the trial judge to
    speculate as to why they now wanted to rehear the limited portion of McLellans
    cross-examination. It was his role to be responsive to the jurys request to
    rehear certain evidence.

[67]

Significantly,
    defence counsel did not object and did not suggest that qualifying evidence be
    played to the jury.

2 (b)

Was
    the verdict of first degree murder reasonable?

[68]

Section
    231(5) of the
Criminal Code
provides that a second degree murder committed
    in connection with certain enumerated crimes of domination can be elevated to
    first degree murder:
R. v. Pritchard
, 2008 SCC 59, [2008] 3 S.C.R.
    195. Robbery is not an enumerated offence. In order to elevate McLellans conviction
    to first degree murder, the Crown therefore had to rely on unlawful confinement,
    the offence enumerated in s. 231(5)(e). Unlawful confinement involves coercive
    restraint or direction of the victim contrary to his or her wishes for any
    significant period of time.

[69]

In
Pritchard
, at para. 26, the court explained that not all robberies
    involve domination of the victim, and therefore not all robberies will satisfy
    s. 231(5)(e). What is required is a finding that the accused confined the
    victim and then
exploited
that domination by an act of killing: para.
    29 (emphasis in original). The unlawful confinement must be distinct from the
    act of killing, but both must be part of the same single transaction of
    coercion and the domination must represent an exploitation of the position of
    power created by the underlying crime:
R. v. Magoon
, 2018 SCC 14, [2017]
    S.C.J. No. 101, at para. 73.

[70]

In
    McLellans submission it is an error to interpret the offence of unlawful
    confinement so broadly as to take into account virtually every robbery during
    which a death occurs. He argues that to satisfy the domination criterion of s.
    231(5)(e), the robbery must involve something more than the degree of coercion
    involved in any killing occurring in the course of a robbery. This, he
    maintains, is what
Pritchard
provides.

[71]

McLellans
    position is that this was nothing more than a robbery gone awry. The fleeting
    confinement that took place prior to Swans shooting cannot reasonably
    constitute a separate and distinct act elevating the killing to first degree
    murder. On the evidence, it was only a matter of seconds between McLellans
    entry into the room and the shooting. Swan was shot almost immediately after the
    occupants of the room were told to get on the ground and throw out their cellphones.

[72]

I
    see no basis to interfere with the jurys verdict. There was no complaint
    regarding the jurys instruction on this issue. It was open to the jury on this
    record to find that McLellan had forcibly confined Swan prior to the shooting
    and that the confinement went beyond what can be considered integral to the
    particular act of killing. The courts reference in
Pritchard
to a
    significant period of time should not be read as imposing a minimum temporal
    requirement:
R. v. Parris
, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras.
    59-61.

[73]

The
    appellant seems to suggest that the separate act requirement should be
    interpreted more restrictively in cases of robbery and murder. I also reject
    this suggestion. As McLellan acknowledges, it is only if the robbery involves
    the requisite degree of domination that there will be a route to liability for
    first degree murder. To artificially restrict the availability of unlawful
    confinement within the meaning of s. 231(5)(e) when a killing occurs in the
    course of a robbery would lead to an absurd result, and could put the accused who
    confines, robs and kills his victim in a better position than if he had just
    confined and killed the victim.

[74]

In
    the present case, there was evidence from which the jury could conclude that
    McLellan illegally confined Swan for the purpose of robbing him before
    exploiting this position of dominance to kill him. There is no basis to
    interfere.

3 (a)

Did the trial judge err in his instruction on the
mens rea
requirement for party liability to murder?

[75]

There
    was no suggestion that Mullen either perpetrated or aided and abetted Swans
    killing. The issue was whether he was guilty of murder as a party to that
    offence pursuant to s. 21(2) of the
Criminal Code
. That section
    provides:

21(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.

Section 21(2) extends criminal liability for crimes
    committed in furtherance of an unlawful purpose, in this case the robbery, if
    the participant in the robbery knew that the commission of the further offence,
    here murder, was a probable consequence of carrying out the robbery.

[76]

As
    Mullen admitted his participation in the robbery, the common unlawful purpose,
    his liability under s. 21(2) turned on his mental state. Mullen did not testify.
    The crucial issue for the jury was therefore whether it could be inferred that Mullen
    had the necessary
mens rea
for party liability to murder. That is, could
    the jury conclude that Mullen knew that one of the participants would probably commit
    murder as defined in s. 229(a) during the course of the robbery? This involved determining
    whether Mullen knew that one of the participants in the robbery would probably
    cause the victims death with one of the intents listed in s. 229(a) of the
Code
 namely, either the intent to cause death, or the
    intent to cause bodily harm that the participant knew would likely cause death
    and recklessness as to whether death ensued or not.

[77]

Mullen
    submits that the trial judge repeatedly erred in telling the jury that, in
    order to find him guilty of murder, they needed only to conclude that he knew
    or was willfully blind to the fact that McLellan would probably cause someones
    death in carrying out the unlawful common purpose. The trial judge left out the
    requirement that the jury had to find that Mullen knew that McLellan would
    probably commit murder  that is, kill Swan with the necessary intent.

[78]

This,
    in Mullens view, left open the possibility that the jury mistakenly believed
    that Mullen could be convicted of murder under s. 21(2) if he knew that it was
    likely that someone would die during the robbery. Mullen argues that this is
    insufficient to ground a conviction for murder, because it encompasses
    foresight of an accidental killing, which would only support a conviction for manslaughter.

[79]

The
    Crown maintains that this ground of appeal should be dismissed. In the Crowns
    view, neither s. 21(2) nor the case law interpreting that provision requires a
    party to murder to have knowledge that murder will be committed; in fact, in
    the Crowns submission, giving this instruction risks blurring the distinction
    between s. 21(1) (aiding and abetting) and s. 21(2) liability for murder. The
    Crown also notes that the language used in the charge, of foresight of death
    in the course of a robbery, meets the minimum
mens rea
requirement
    for murder as outlined in
R. v. Shand
, 2011 ONCA 5, 104 O.R. (3d) 291,
    at paras. 160-169, leave to appeal refused, [2011] S.C.C.A. No. 270.

[80]

However,
    the Crown also submits that, read as a whole, the charge would have made it
    clear to the jury that Mullen had to know that a murder would probably occur.

[81]

As
    already explained, s. 21(2) clearly requires that the party to the offence have
    the foresight of the offence itself, including the
mens rea
element of
    that offence. Case law has made it clear that to convict a party to the offence
    of murder pursuant to s. 21(2), the Crown needs to show that the accused knew
    not only that death would probably occur, but that the death would probably be
    caused
with the requisite intent
: see
R. v. Jackson
, [1993] 4
    S.C.R. 573, at pp. 9-10 and 14-15;
R. v. Ferrari
, 2012 ONCA 399, 287
    C.C.C. (3d) 503, at para. 61;
R. v. Simon
, 2010 ONCA 754, 104 O.R.
    (3d) 340, at paras. 43 and 53, leave to appeal refused, [2010] S.C.C.A. No. 459;
R. v. Patel
, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 42 and
R.
    v. Phillips
, 2017 ONCA 752, 355 C.C.C. (3d) 141, at paras. 244-245.

[82]

Mullen
    acknowledges that the trial judge gave the correct instruction in one, or
    arguably two, instances. In my view, if these had been the only instructions
    given to the jury on party liability, Mullen would have no complaint. The
    difficulty, however, is that in some twelve instances, both before and after the
    correct portion of the charge and in some cases in close succession, the jury
    was misdirected in the manner already described.

[83]

These
    repeated erroneous instructions, together with the inclusion of the same error in
    the decision tree, raise the very real possibility that one or more jurors may
    have convicted Mullen believing that he only needed to have foresight of death,
    rather than foresight that death would be caused by another participant with
    one of the intents listed in s. 229(a).

[84]

I
    am not prepared to accept that, because the charge contains in one section a
    clear and correct statement of the law, coupled with a correct illustration of
    the elements of the offence that need to be proven, the jury would have given
    no weight to the twelve instances of misdirection in the balance of the charge.
    Nor am I prepared to accept that there is no reasonable possibility that the
    jury was confused as to the
mens rea
requirement
.
    A new trial is therefore required.

[85]

In
    reaching this conclusion, I have considered the whole of the charge, the
    submissions made to the jury by the parties at trial as well as Mullens
    failure to object to the charge. Although Mullens trial counsel failed to
    object, in the precharge discussions he asked the judge to charge the jury in
    accordance with the principles articulated in
Ferrari
, at para. 61
. That passage in
Ferrari
contains a clear and accurate expression of the law, specifically that, in
    order to ground a murder conviction under s. 21(2):

[The Crown has] to prove that the other person (the participant
    or non-shooter) knew that the principal offender would probably commit murder
    in carrying out the unlawful purpose.  In the context of this case, the
    non-shooter had to know that the shooter would probably cause the death of the
    deceased with  either the intent to cause death, or the intent to cause bodily
    harm that the principal knew would likely cause death, being reckless whether
    death ensued or not.

The failure of Mullens trial counsel to restate his
    position by way of an objection is not a bar to an appeal; it is simply a
    factor to be taken into account:
R. v. Jacquard
, [1997] 1 S.C.R. 314,
    at paras. 37-38.

[86]

An
    accused is entitled to a properly instructed jury. When the charge is viewed as
    a whole in the context of the evidence led at trial, it is certainly possible
    that the jurors understood the need to find that Mullen knew or was willfully
    blind to the likelihood of a murder. The real possibility of error or confusion
    by one or more of the jurors, however, remains. The concern is heightened by the
    fact that the decision tree that was left with the jury contained the same
    error that was made twelve times in the jury instruction: see
Phillips
,
    at para. 245;
R. v. Peters
(1985), 23 C.C.C. (3d) 171 (B.C.C.A.), at
    para. 12.

[87]

I
    would also reject the Crowns suggestion that the charge was adequate because it
    met the minimum
mens rea
requirements for murder as outlined in
Shand.

Shand
dealt with murder pursuant to s. 229(c) and the intent required
    for murder pursuant to that section. Section 229(c) makes a person liable for
    murder where, for an unlawful object, the person does anything that he or she
    knows or ought to know is likely to cause death and thereby causes death to a
    human being.

[88]

The
    present case was concerned with murder as defined in s. 229(a). There was no
    mention or reference at trial or in the charge to s. 229(c). The elements
    required to be proven in order to convict someone of murder under that section
    were never at issue. In these circumstances, s. 229(c) is simply not at play
    and it is pure speculation as to whether Mullen could have been convicted as a
    party  to a s. 229(c) murder under s. 21(2). These reasons should not be taken
    as commenting in any way on the possible interplay between those provisions.

THE BALANCE OF THE GROUNDS OF APPEAL

[89]

We
    did not call on the Crown to respond to the balance of Mullens grounds of
    appeal. Because of the conclusion I have reached with respect to Mullens s.
    21(2) ground of appeal, I do not propose to deal with these grounds. In my view
    they are without merit.

CONCLUSION

[90]

I
    would dismiss McLellans appeal. I would however allow Mullens appeal, set
    aside his conviction for second degree murder and order a new trial on the
    charge of second degree murder.

Paul Rouleau J.A.

I agree Doherty
    J.A.

I agree B.W. Miller
    J.A.

Released: June 1, 2018


