R. v. REDACTED,  O.J. No. 2461
Ontario Superior Court of Justice
R.C. [REDACTED] J.
Heard: April 24, 2019.
Judgment: April 28, 2019.
Court File No.: CR-17-92
 O.J. No. 2461|2019 ONSC 2574
Between Her Majesty the Queen, and [REDACTED], [REDACTED], [REDACTED], and [REDACTED], Defendants
[REDACTED] and [REDACTED] for the Crown.
[REDACTED] for Mr. [REDACTED].
[REDACTED] for Ms. [REDACTED].
[REDACTED] for Mr. [REDACTED].
[REDACTED] and [REDACTED] for Mr. [REDACTED].
RULING ON DIRECTED VERDICT APPLICATIONS
R.C. [REDACTED] J.
1 Sometimes really terrible things happen to people that were just unavoidable. This case involves a terrible outcome that was easily avoidable.
2 Three very intoxicated men were making their way home, on foot, from a local bar -- a father and son and a new friend they had met that night at the bar. They were only a few metres from their driveway when the night went horribly sideways. A carful of predominantly young males drove by. Someone inside the car yelled something at the men on foot. One of the drunk men yelled something back. It appears likely that it was the new friend. It is not entirely clear what was said either way. It seems likely that, at the very least, the occupants in the car were earnestly invited to fuck off.
3 The car turned around, because an insult of this nature could not be left unanswered. I will get into the facts a little deeper momentarily. For now, it is enough for me to set out the bottom line. A fight broke out. At the end of the fight, the father and son were both injured. The son had a broken wrist. The father, a serious head injury that he succumbed to several weeks later.
4 Most of the occupants of the car were charged, jointly, with assault causing bodily harm, assault with a weapon and manslaughter.
5 The Crown's case has just come to a close. Each of the defendants has moved for directed verdicts of acquittal on all counts, save for Mr. [REDACTED], who concedes that there is sufficient evidence in the record to warrant the case of manslaughter going before the jury.
6 These applications engage issues relating to the proper role of the trial judge on directed verdict applications and the nuances of party liability. In the final analysis, the issue is really about whether certain inferences urged by the Crown are reasonably supported by the evidence and available to the jury.
7 A modest account of the evidentiary record is required in order to put the applications into context.
II. THE EVIDENTIARY RECORD
8 Seven witnesses testified for the Crown: two first responders; the friend whom the deceased and his son met on the evening in question; the injured son; one of the occupants of the vehicle of young people; and two neighbours who purported to have either seen or heard parts of the confrontation.
9 The witnesses were unable to provide a particularly coherent picture of what exactly happened during the confrontation. It appears clear that some words were exchanged between the group of pedestrians and the occupants of the car. The car turned around. A fight ensued and the outcome is relatively clear. But who took on what role(s) during the altercation is pretty hazy.
10 [REDACTED] testified that he and his father, [REDACTED], were out on the evening of Friday September 11, 2015 for a night of drinking in downtown Bradford. They consumed a good deal of alcohol, primarily at a small bar called the Tic Tac. To put the descriptive phrase "good deal" into perspective, a blood sample taken from Mr. [REDACTED] at 2:55 a.m. on September 12, 2015 was analysed and found to contain a blood/alcohol content of 360 mg. in 100 ml of blood. That is an arrestingly high amount of alcohol to have in one's blood. Mr. [REDACTED] did not provide a breath or blood sample for analysis, so his blood/alcohol content is unknown. He testified that he drank steadily with his father but was not able to keep up to him, drink for drink.
11 While Mr. [REDACTED] and his father were at the [REDACTED], they met up with [REDACTED], another local Bradford resident who was similarly out on the town for a night of drinking.
12 Mr. [REDACTED] and [REDACTED] both testified that they and Mr. [REDACTED] left the bar at closing time - around 2:00 a.m. All three males were quite intoxicated. They headed for Mr. [REDACTED]'s residence at [REDACTED], which was perhaps 500 metres south-east of the [REDACTED] bar. They headed east on Holland Street from the [REDACTED], then south on Simcoe Street. Questions were asked by Mr. [REDACTED] about why Mr. [REDACTED] was following them home, but nothing turns on that issue for now.
13 Mr. [REDACTED] testified that by the time they started south on Simcoe Street his father needed assistance walking due to his state of inebriation. To use the vernacular, he was "legless". A short distance down Simcoe Street, the three pedestrians had an encounter with a police officer in a cruiser, Sergeant [REDACTED] of the South Simcoe Police Service.
14 Mr. [REDACTED] persuaded Sgt. [REDACTED] that they were okay and had only a short distance to go to get home. Sgt. [REDACTED] testified that, based on his conversation with Mr. [REDACTED], he believed they could safely navigate their way home and he let them proceed. The pedestrians continued a short distance south on Simcoe Street, then made a left turn and headed east on Centre Street. Mr. [REDACTED]'s residence was perhaps 100 metres east on Centre Street.
15 Mr. [REDACTED] testified for the Crown. His evidence was not compelling. He could not remember having met up with Sgt. [REDACTED]. He recollected that a dark car drove past them on Simcoe Street and there was some shouting. The car stopped. He said he thought there was going to be trouble so he turned and walked in another direction. He said he heard some doors banging, but by this point he was already walking away.
16 According to Mr. [REDACTED], as he was moving away from the others someone ran up to him. He claims to have said "I don't know what's going on, I don't want anything to do with it, I'm drunk". He said he had his hands up at the time. He could not describe the person who ran up to him, other than that he thought he or she was wearing a red sweater. He thought maybe the person's right arm was cocked. Nothing came of the interaction and according to him he briskly left the scene. He saw nothing of the confrontation.
17 If there was an overarching theme to Mr. [REDACTED]'s evidence, it was that he was very drunk at the time. A secondary theme would be a singular disinterest in being a part of this case.
18 Mr. [REDACTED], unlike Mr. Myall, testified that the three pedestrians continued along Centre Street in the direction of his father's residence. A car drove by them, headed west. It was occupied by a group of young people. Surveillance video taken from a camera mounted on an apartment building nearby Mr. [REDACTED]'s residence supports Mr. [REDACTED]'s testimony on this point.
19 The car that drove past Mr. [REDACTED] and his father was an older Honda Civic coupe being driven by [REDACTED]. There were six individuals in the car, including the four defendants, as well as [REDACTED] and [REDACTED].
20 Mr. [REDACTED] testified that [REDACTED] was in the front passenger seat. [REDACTED] was seated in the back directly behind Mr. [REDACTED]. Mr. [REDACTED]was seated to the left of Ms. [REDACTED]To his left was [REDACTED] and behind the driver was Mr. [REDACTED].
21 Mr. [REDACTED] further testified that as they drove past the three pedestrians, Mr. [REDACTED] yelled something out the window at them. Something like, "you guys are drunk", or possibly "you guys are drunk as fuck".
22 Mr. [REDACTED] testified that Mr. [REDACTED] said something back to the car, but he was not clear about what was said. It was suggested to him that someone used a racial slur, but he denied that. He agreed that whatever was said was "inappropriate".
23 Regardless of what words were exchanged, Mr. [REDACTED]turned the car around and drove east, passing the men on foot and stopping just beyond them on the south side of the road and just before Mr. [REDACTED]'s driveway.
24 The three pedestrians walked straight towards the car. Someone got out of the passenger side door. Mr. [REDACTED] identified that person as Mr. [REDACTED]. Mr. [REDACTED] simply described him as an olive-skinned male with a big nose. Mr. [REDACTED] does not present in court as "olive-skinned" nor does he appear to have a particularly prominent proboscis. That said, there is certainly evidence before the court that could support a finding that Mr. [REDACTED] was the first out of the car. Indeed, that finding does not appear to be contested.
25 Mr. [REDACTED]engaged at once with the person who exited the car. He stepped up to within a foot of him, so that both of them were standing in the open doorway of the car. Words were exchanged. Mr. [REDACTED] said that the person he engaged with asked why they were talking trash -- why they said anything at all. He said the man was being very aggressive with him. He felt a push from the back. He then threw a punch at the passenger from the car and took the man to the ground. Mr. [REDACTED] made it clear throughout his testimony that he is an advanced student of several martial arts and a well-trained fighter.
26 Under cross-examination Mr. [REDACTED] said that the man he engaged with was acting very aggressively. He said that as soon as the car pulled over he felt very threatened. Nevertheless, he said his mission was to get home. They were walking along a particular pathway and he did not intend to deviate from it. He did not think it would have been a good idea for him and his father to turn and walk in a different direction. He feared they could have been jumped from behind. As he stood face to face with Mr. [REDACTED], he formed the opinion that he needed to strike first.
27 Mr. [REDACTED] accepted that it was about five seconds between the time that the man stepped out of the car and when he threw the first punch. He does not know who pushed him from behind, but accepted that it might well have been his father falling into him. He also suggested that it may have been someone else from inside the car. That suggestion seems ill-conceived, given the speed at which the fight developed. Moreover, he testified that the driver of the car did not get out of the vehicle until after he struck the passenger. Mr. [REDACTED] similarly testified that Mr. [REDACTED] got out of the car from the driver's side only when the fight began.
28 As Mr. [REDACTED] and Mr. [REDACTED] scuffled with Mr. [REDACTED], the other occupants of the car exited, though the exact timing of their exit is not clear. The scuffle moved down the street and into Mr. [REDACTED]'s driveway. There is some evidence that some sort of physical interaction occurred up against the side of the house. There are some dents in the aluminum siding and Mr. [REDACTED]'s house keys were located on the driveway essentially abutting the house. It was Mr. [REDACTED], however, who had possession of the keys, according to his testimony.
29 Mr. [REDACTED] testified that he saw Mr. [REDACTED] and Mr. [REDACTED] scuffling with Mr. [REDACTED]. He said that at one point he lost sight of Mr. [REDACTED], but then later saw him return with a stick of some sort.
30 Mr. [REDACTED] testified that he broke free of the fight and ran towards the rear of his father's house, where he found a piece of steel rebar. He described it as a weapon. He said he ran around the next door neighbour's house and rejoined the fray in his father's driveway. At some point, however, he was disarmed. He could not say by whom.
31 Mr. [REDACTED] has a gap in his memory. He recalled coming back with the weapon (the stick or rebar) and recalled being disarmed. His next recall is being on his knees in the driveway and seeing his father on the ground. He then got cuffed in the back of the head and the fight ended.
32 Mr. [REDACTED] said that he thought Mr. [REDACTED] ran up to the person with the stick and said, "hit me, hit me". Under cross-examination he agreed that perhaps what was said was, "don't hit me, don't hit me". The person with the stick then backed away and went towards where Mr. [REDACTED] and Mr. [REDACTED]were.
33 Mr. [REDACTED] also said he saw Mr. [REDACTED] grappling with the person who had the stick. He said the person with the stick had his arm raised and Mr. [REDACTED] was holding that person's arm in an apparent effort to prevent that person from striking him with the stick. After refreshing his memory from his police statement, he recalled that he actually saw Mr. [REDACTED] take the stick away from the other person, then put it in the car. He did not see Mr. [REDACTED] strike the person with it.
34 Somehow Mr. [REDACTED] ended up on the ground with a significant injury to the back of his head. None of the witnesses who testified saw what happened to Mr. [REDACTED], save for possibly a neighbour, Mr. [REDACTED]
35 Mr. [REDACTED] lived in a fourth floor apartment building across the street and slightly east of the confrontation. He heard what he described as a "ruckus" from his living room window. He heard someone say, "I'm just walking my father home". The person sounded distressed. He went outside onto his balcony to see what was going on.
36 Mr. [REDACTED] testified that he saw a group of three to four people rush down the driveway where the altercation was taking place. He also said he saw a man, who appeared to be the man who lived at that residence, standing by a retaining wall. He testified that he saw three people engage with the man, grab him and pull him down the driveway out of view. He then heard a thunk, like the sound of someone slamming up against a car, or perhaps the side of an aluminum-clad house. Moments later a car sped away.
37 In cross-examination Ms. [REDACTED] pointed out that Mr. [REDACTED] had testified at the preliminary hearing and said he did not see the man at the retaining wall move. It was the man who had yelled, "I'm just trying to get my dad home" that he identified as the person grabbed and pulled across the driveway. He said he was being truthful at the preliminary hearing when he gave those answers.
38 Other defence counsel attempted to pin Mr. [REDACTED] down on his evidence and ensure that he adopted his testimony from the preliminary hearing. He appeared to be reluctant to do so, as he indicated a number of times that in his mind's eye he could clearly see the man from the retaining wall being grabbed and pulled across the driveway.
39 Under cross-examination by Mr. [REDACTED], Mr. [REDACTED] agreed that he could be mixing up the order in which things happened. He agreed that the older gentleman he described as standing beside the retaining wall, could have moved there after the fight had already moved down the driveway. He agreed that it made sense that if anyone was grabbed and moved down the driveway it was the younger guy. He further agreed that he has no idea what happened to the older gentleman after the fight moved down the drive.
40 Earlier I mentioned some surveillance video. To be clear, it is of singularly poor quality. Having said that, it does appear to show -- when considered in the context of the evidence provided by the eyewitnesses -- an altercation starting beside the car. The driver of the car appears to get out and move around to the passenger side after pausing for a few seconds. Shortly thereafter a group of people appear to move east, towards Mr. [REDACTED]'s driveway. A lone figure is seen roughly ten seconds later walking east towards Mr. [REDACTED]'s driveway. Mr. [REDACTED] testified that the figure appears to be his father.
41 [REDACTED] was a neighbour who lived behind Mr. [REDACTED]'s house. She testified that she was outside smoking a cigarette in the early morning hours of September 12, 2014 when she heard an altercation. She testified that she heard the sound of footsteps running, like someone was being chased. She heard what she thought was the sound of someone getting beaten up. And she heard a female voice say something along the lines of "this is what you get", and "that's the guy who beats up women...get him."
42 Following the altercation, the six individuals in the car travelled to Mr. [REDACTED]'s apartment, which was less than ten minutes away from Mr. [REDACTED]'s home. While there, Mr. [REDACTED]-- according to Mr. [REDACTED]'s testimony -- mentioned that his left hand was sore. Mr. [REDACTED] said that Mr. [REDACTED]'s comment was made in the context of a discussion about how Mr. [REDACTED] was knocked out.
43 In the meantime, first responders attended at Mr. [REDACTED]'s residence. One of those first responders was Sgt. [REDACTED], who had encountered Mr. [REDACTED]and his father about ten minutes earlier. Sgt. [REDACTED] said that when he arrived at [REDACTED] one of the first things he observed was a male and a female walking away from the scene. His attention was, however, justifiably on the preservation of Mr. [REDACTED]'s life. He did not have an opportunity to stop the male and female, or to question them, or to get a proper description of them. He had no indication from Mr. [REDACTED] that the male and female were in any way involved in the incident.
44 Mr. [REDACTED] was subsequently conveyed by ambulance to Southlake Hospital, then to St. Michael's hospital in Toronto. His condition deteriorated, despite brain surgery, and he died on September 24, 2015.
45 A post-mortem examination revealed that Mr. [REDACTED] had a "black eye" as a result of a blunt force trauma to his right eye, consistent with a punch.
46 He also had a laceration on the right side of the back of his head. The laceration was associated with a skull fracture and an underlying brain injury. This injury caused his death in the opinion of the pathologist who conducted the autopsy, as well as a second, reviewing pathologist.
47 Dr. [REDACTED], who conducted the autopsy, opined that the injury to the back of Mr. [REDACTED]'s head was consistent with a blunt object striking his head and equally consistent with his head striking a hard object.
48 Dr. [REDACTED]-- a consulting pathologist in this case -- opined that one could not definitively say what caused the injury to Mr. [REDACTED]'s head, but he thought it more likely to be the result of Mr. [REDACTED]'s head striking a hard surface as a result of a fall.
49 Mr. [REDACTED] suffered a fractured wrist, a contusion to the back of his head and bruising to his knees. How any of these injuries were incurred is not entirely clear.
III. THE GOVERNING AUTHORITIES
Directed Verdict Applications -- The Basic Test
50 The test to be applied on an application for a directed verdict is straightforward and well-settled. It was set out by Ritchie J. in the oft-cited decision in United States of America v. Shephard,  2 S.C.R.1067, at p. 1080. The presiding justice must determine:
...whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.
51 The "Shephard test", as refined over the years, was more recently summarized by Strathy, J., now C.J.O., in R. v. Acevedo,  O.J. No. 1345, at para. 5:
...[I]s there any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty? See R. v. Monteleone,  2 S.C.R. 154 at para. 8; R. v. Arcuri,  2 S.C.R. 828 at para. 21. The motion must be dismissed if there is admissible evidence that could, if it were believed, result in a conviction. In a case like this one, where the evidence relied on by the Crown is entirely circumstantial, the court must engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw: see Arcuri at para. 23, per McLachlin C.J.C. It is not, however, the responsibility of a judge on a motion such as this to choose between competing inferences. Where the evidence is capable of supporting more than one inference, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77,  3 S.C.R. 635 at para. 18, per Major J.
52 None of the parties contests this basic formulation of the applicable test.
The Weighing of Evidence
53 A good deal of the Crown's case is based on circumstantial evidence. Who did what to whom, the sequence of events, whether the defendants were acting with a common purpose or otherwise what the defendants' states of mind were, are all matters that depend largely on circumstantial evidence. In the result, I must engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences to be urged upon the jury by the Crown.
54 Where, as here, the Crown relies predominantly on circumstantial evidence to establish one or more of the elements of the charged offences, the jury must ultimately be satisfied that the guilt of a defendant is the only rational inference that may be drawn from the circumstantial evidence: see R. v. Villaroman, 2016 SCC 33, at paras. 17-18. This application of the reasonable doubt standard to circumstantial evidence is often referred to as the rule in Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136.
55 It is not, however, my function to apply the rule in Hodge's Case at this stage of the analysis. In other words, it is not for me to determine, on a motion for a directed verdict, whether the evidence adduced by the Crown points to only one rational inference, specifically the guilt of one or more of the defendants: R. v. Charemski,  1 S.C.R. 679 at para. 4. See also R. v. Bains (2015), 328 C.C.C. (3d) 149 (C.A.) at paras. 158-160.
56 Former Chief Justice McLachlin described the trial judge's role on a directed verdict application in R. v. Arcuri,  2 S.C.R. 828, at para. 23 as follows:
The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed...The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
57 As Justice Trotter explained in R. v. Jama, 2017 ONSC 471, at para. 29, the limited weighing of evidence to be engaged in by the trial judge does not equate with the rule in Hodge's Case. That rule is "essentially a warning, aimed at the trier of fact, about too readily drawing inferences of guilt" from circumstantial evidence. What inferences the jury will ultimately draw is entirely up to them. On a directed verdict application the trial judge is not to engage in the ultimate weighing of evidence, or in the choosing between competing inferences. Rather, the trial judge's task is only to determine if it is possible for the jury, acting reasonably, to infer guilt from any competing inferences available on the evidence.
58 Having said all of that, the trial judge must also be wary of the risk of wrongful conviction. The trial judge must determine whether the jury, acting reasonably, could infer guilt from all of the evidence. Whether a jury has acted reasonably in inferring guilt from an evidentiary record is a matter to be assessed through what has been described as the "lens of judicial experience". See R. v. Bains, as above, at para. 176, where Watt J.A. described what is meant by that phrase as follows:
The "lens of judicial experience" refers to our examination of the cogency of the evidence adduced at trial, as informed by our awareness of the risks of wrongful convictions associated with certain kinds of cases and certain kinds of evidence and the witnesses who provide it. As an institutional participant in the criminal justice system, we have an appreciation of the risks of a wrongful conviction that an individual jury assigned the task of deciding a single case cannot have.
59 I appreciate that Bains involved appellate review of whether a jury verdict was unreasonable. Such a review is forensic in nature and the approach to the weighing of evidence has traditionally been framed somewhat differently by appellate courts than the classic formulation of the Shephard test.
60 The Shephard test requires only that the presiding judge determine whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Applying the Shephard test requires the trial judge to look prospectively at what verdicts might reasonably be available to the jury on the evidence adduced.
61 Appeals involving allegations of unreasonable verdicts require appellate courts to look retrospectively at the verdict that was reached and ask whether it was reasonably available on the evidence adduced.
62 The test to be applied when an allegation of an unreasonable verdict is made was described by Cromwell J. in R. v. W.H., 2013 SCC 22, at paras. 27-28, as follows:
... On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.
On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required "to review, analyse and, within the limits of appellate disadvantage, weigh the evidence" and consider through the lens of judicial experience, whether "judicial fact-finding precludes the conclusion reached by the jury". Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience. (Citations omitted).
63 If the philosophical underpinning of the test described by Cromwell J. in R. v. W.H. is the prevention of wrongful convictions, I can think of no rational basis not to apply a similar caveat to the application of the Shephard test on motions for directed verdicts.
64 In other words, on a directed verdict application, the trial judge will ask whether the evidence, if believed, could reasonably support an inference of guilt. The assessment of "reasonableness" must include, in my view, whether an inference of guilt would conflict with the bulk of judicial experience. In other words, would judicial fact-finding preclude a guilty verdict?
65 In this case, the position of the Crown is that the defendants committed the charged offences jointly, during the course of a group attack.
66 In Canada, criminal offences may be committed in a number of ways. Where an offence is committed by more than one person, each may be culpable for the offence, whether as a principal, aider or abettor.
67 The essentials of party liability are codified in Section 21(1) of the Criminal Code of Canada provides as follows:
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.
68 It is important to recognize that mere presence at the scene of a crime is not sufficient to prove culpable participation. Something more is required. See R. v. Jackson,  3 S.C.R. 514 and R. v. Dunlop,  2 S.C.R. 881.
69 Where there is evidence, however, of concerted action between two or more persons in the commission of an offence, it is open to the jury to convict all such persons, as principals, aiders or abettors, as the case may be: R. v Sauvé, (2004), 182 C.C.C. (3d) 321 (Ont. C.A.) at para. 136.
70 A person is a principal to an offence if he or she actually commits it. In other words, if he or she does the act prohibited by the offence and has the requisite mental state required by the offence.
71 Two or more individuals may actually commit an offence where together they form an intention to commit an offence, are present at its commission and contribute to it, even though they do not personally commit all of its essential elements. See R. v. Pickton, 2010 SCC 32, at para. 63.
72 In relation to manslaughter, however, which is a causation-based offence, culpability on the basis of co-principal participation requires that the conduct of an accused person be a significant contributing cause of the victim's death: Pickton, para. 64.
73 In some cases, multiple individuals will attack a single victim. Their combined blows may result in the death of the victim. It may not be possible to determine, in those circumstances, who struck the fatal blow. In other words, it may be impossible to establish factual causation with any confidence. The principles of legal causation allow, however, for uncertainty as to the actual blow(s) that caused death. As long as each attacker actively participated in the attack and each could be said to have been a significant contributing cause of death, then each will be culpable as a co-principal.
74 In other cases, it will be clear that death was caused by a single individual. In those cases, only that one individual may be liable as a principal to the offence. "The principles of criminal causation demand such a conclusion, as there cannot be said to be any other 'significant contributing cause' to the death. In that situation, the potential of co-principal liability is eliminated": Pickton, para. 67. See also R. v. Mendez, 2018 ONCA 354 at para. 11.
75 The Crown advanced the proposition that all of the defendants are potentially liable as co-principals on the basis that they formed a common intention to attack the three pedestrians on the street. In the Crown's submission, so long as it is established to the reasonable doubt standard that such a common intention existed and so long as a defendant actively participated in the joint attack, that defendant is liable as a co-principal.
76 Support for the Crown's position appears to come from the 2011 decision of the British Columbia Court of Appeal in R. v. Ball, 2011 BCCA 11. In Ball, two brothers -- Ian and Bradley Johnston -- were out having a drink at a bar in Parksville, B.C. They came into conflict somehow with a group of five other men in the bar. The bar manager asked the Johnston brothers to leave. They exited out a rear door that led to an alleyway.
77 At the same time, the other group of five men left through a different door and confronted the Johnston brothers at the end of the alley. Some of the attackers set upon Ian Johnston while others set upon his brother, Bradley. Bradley Johnston suffered a brain injury and died the next day.
78 Mr. Ball was convicted of manslaughter for his role in the attack, even though there was no evidence that he had actually struck Bradley Johnston. The trial judge concluded that there was a single assault against both brothers and that Mr. Ball's assault on Ian Johnston (which was admitted) aided the assault on Bradley Johnston.
79 At the Court of Appeal, Ryan, J.A., for a unanimous panel, upheld the trial judge's decision, on the basis that Mr. Ball was a co-principal in the assault on Bradley Johnston. He held as follows, from paragraphs 25-30:
25 Where two persons commit a crime as co-perpetrators it may be the case that they have agreed to do so before embarking on the endeavour. For purposes of liability under s. 21(1)(a) of the Code, however, agreement to carry out a common purpose is not necessary. The question is whether there is an indication of common participation, not a common purpose.
27 In such a case the Crown need only prove that the individuals engaged in whatever action they took with the requisite intent.
28 It follows that where co-perpetrators engage in a deadly assault, the Crown need not prove which of the attackers struck the fatal blow or blows...
29 In the case at bar the trial judge found that the Clarke, Ball and Rosborough members of the Woolnough party, jointly participated in an attack on the Johnston brothers as they left the Rec Room after they were advised by staff to leave. If this conclusion is not wrong, all of the attackers are responsible for the injuries received by both men.
30 In my view the trial judge was entitled to reach the conclusion that he did on the evidence...The trial judge found that the group that attacked the Johnston brothers consisted of members of the Woolnough party. It matters little that each attacker did not lay a hand on each person assaulted. What matters is that all played a part in the attack, whether it was striking one brother or the both of them. In such a case the blow of one is the blow of them all.
80 To the extent that Ball stands for the proposition that a person may be liable as a co-principal to a charge of manslaughter even though the person did not participate directly in the attack on the deceased, it must be said to have been overtaken by the Supreme Court's ruling in Pickton.
81 After Pickton, Mr. Ball could not be convicted of manslaughter in the death of Bradley Johnston on the basis of co-principal participation. He did not strike Bradley Johnston. He could not be said to have legally caused his death. In other words, his actions were not a significant contributing cause to Bradley Johnston's death. If Mr. Ball was to have culpability in the death of Mr. Johnston, it must be on some other basis, such as aiding or abetting.
82 Party liability sounds simple when one reads s. 21 of the Criminal Code. In practice, it has proven to be anything but simple. One source of difficulty counsel and jurists seem to have historically had in coming to grips with the different modes of participation outlined in s. 21(1) was identified by Justice LeBel at paragraphs 68-69 of Pickton. He explained that confusion sometimes occurs as a result of the use of language such as "common scheme", "joint agreement", or "acting in concert" in cases of alleged co-principal participation. That language, he said, as well as phrases such as "concerted action", "common design" and "joint participation" captures the entire gamut of liability under s. 21(1)(a), (b) and (c). In other words, it captures participation as principals, co-principals, aiders and abettors.
83 I have described in some detail principal and co-principal liability because it is of significant importance in the disposition of these applications. Similarly, the essentials of party liability -- aiding and abetting -- will also be revealed to be important.
Aiding or Abetting
84 A person may be convicted as an aider to an offence where:
(a)He or she did something that actually helped the principal commit the offence; and,
(b)He or she did the act that helped for the purpose of aiding in the commission of the offence.
See R. v. Almorales, (2008), 237 C.C.C. (3d) 148 (Ont. C.A.) at para. 66.
85 The fault element of aiding -- captured in the concept of "purpose" -- requires the Crown to demonstrate that the defendant knew that the principal intended to commit the offence and intended to help the principal to do so. The aider need not share the intent of the principal, nor even desire that the offence be successfully committed. Moreover, the aider need not know precisely how the principal would commit the offence. See R. v. Briscoe, 2010 SCC 13, paras. 16-17.
86 The essential elements of abetting are quite similar to those of aiding, with the substitution of the requirement of "encouragement" for that of "helping".
87 In other words, a person may be convicted as an abettor where:
(a)He or she did something that encouraged the principal with acts or words; and,
(b)He or she did the act or said the words that encouraged the principal with the intention of encouraging the principal to commit the offence.
See R. v. Almorales, as above, at para. 67. See also R. v. Greyeyes,  2 S.C.R. 825 at para. 38.
88 Again, the abettor must know the offence that the principal intends to commit and intend to encourage him or her to do so.
IV. THE POSITIONS OF THE PARTIES
The Position of Mr. [REDACTED]
89 All defence counsel were of one voice with respect to the Crown's assertion that there was a common intention on the part of the occupants of the vehicle to assault the three drunken pedestrians on the road. All contend that there is grossly insufficient evidence to support such a conclusion.
90 Ms. [REDACTED] conceded that there is a good deal of evidence for the jury to consider in relation to the allegation that Mr. [REDACTED] was assaulted. There is no evidence, however, that he was assaulted with a weapon and no evidence that ties Mr. [REDACTED] to any assault on Mr. [REDACTED]
91 In terms of the alleged assault on Mr. [REDACTED], Ms. [REDACTED] submitted that the evidence makes it clear that Mr. [REDACTED] got out of the car to come to Mr. [REDACTED]'s aid after he was taken to ground by Mr. [REDACTED]. Such assistance comes within the ambit of the defence of person defence, or alternatively reflects a consensual fight. In any event, there is no evidence that Mr. [REDACTED] committed a crime.
92 Ms. [REDACTED] asks that all charges against Mr. [REDACTED] be removed from the jury's consideration and acquittals entered.
The Position of Ms. [REDACTED]
93 Mr. [REDACTED] joined Ms. [REDACTED]with respect to the assertion that there is a dearth of evidence to support a finding that the occupants of the car formed a common intention to assault the three male pedestrians.
94 He then focused on the evidence of Ms. [REDACTED]. She is the neighbour who testified that she heard a female voice saying words to the effect of, "he's the one who likes to hit women...get him".
95 Mr. [REDACTED], correctly in my view, argued that if there was more than one female present at the scene of the offences, the jury could only speculate as to which female said the things that Ms. [REDACTED] heard, assuming of course that the jury accepts that those things were actually said. Obviously, before the jury can convict Ms. [REDACTED] as a party to any offence, they will have to be satisfied that she is the one who uttered the words purportedly heard by Ms. [REDACTED]. The Crown does not suggest that Ms. [REDACTED] participated in the alleged offences in any way other than through her encouraging words. Their ability to convict Ms. [REDACTED] hinges on their ability to establish that she was the only female present at the scene of the offences.
96 Mr. [REDACTED] argued that there were as many as three females present at the scene. Ms. [REDACTED] is one. The female Sgt. [REDACTED]'s said he saw leaving the scene just as he arrived is another. And a potential third female was described by Mr. [REDACTED]. He said there was a female at the scene with long, dirty blond to light brown hair, which she wore down her back. Ms. [REDACTED] has dark hair. Minutes after the incident in issue she was captured on video surveillance at Mr. [REDACTED]'s apartment. Her hair was up and not down her back.
97 In Mr. [REDACTED]'s submission, even if the jury accepts that a female uttered the words Ms. [REDACTED] purported to hear, they could only speculate about which female it was. Accordingly, he submits that there is insufficient evidence before the court to justify any of the charges against Ms. [REDACTED] being put before the jury.
The Position of Mr. [REDACTED]
98 Mr. [REDACTED] joined his co-counsel in the submission that there is grossly insufficient evidence to support any finding that there was a common intention amongst the occupants of the car to assault the drunken pedestrians.
99 Mr. [REDACTED] went on to submit that there is no evidence whatsoever that Mr. [REDACTED] engaged in any way with Mr. [REDACTED]. Furthermore there is no evidence that Mr. [REDACTED] knew that any of his travelling companions intended to engage with Mr. [REDACTED]. And finally, there is no evidence that Mr. [REDACTED] or anyone else assaulted anyone with a weapon.
100 There is evidence that Mr. [REDACTED] engaged physically with Mr. [REDACTED], but the uncontradicted evidence is that Mr. [REDACTED] threw the first punch.
101 In Mr. [REDACTED]'s submission, there is no evidence that Mr. [REDACTED] committed any criminal offence and there should be directed verdicts of acquittal on all counts.
The Position of Mr. [REDACTED]
102 Mr. [REDACTED]'s counsel concede that there is sufficient evidence to warrant the offence of manslaughter going to the jury, at least in terms of their client's jeopardy.
103 They do not agree that Mr. [REDACTED] should be exposed to either of the assault-based offences.
104 First, they contend that no evidence has been adduced by the Crown to support the assertion that anyone, at any time, assaulted Mr. [REDACTED] or Mr. [REDACTED] with a weapon. Acquittals on that account should follow.
105 Second, they contend that there is no evidence that Mr. [REDACTED] engaged with anyone other than Mr. [REDACTED]. And there is grossly insufficient evidence to support the suggestion that there was a common intention to assault the three pedestrians. In the result, the submission is that directed verdicts of acquittal should be registered on counts 2 and 3 for Mr. [REDACTED].
The Position of the Crown
106 Crown counsel take the position that they need not demonstrate that there was a common intention to commit an offence, only that there was common participation in an offence. They say that they have adduced ample evidence that the defendants each participated in a common assault on the pedestrians. Each played a role. Each is culpable for the actions of the group.
107 While it may be open to the jury to ultimately conclude that what happened was not a group assault, but rather two individual assaults, that is a matter, the Crown says, that must be left to them. At this stage, the court is to consider only the inferences most favourable to the Crown. One such inference is that what happened was a group assault perpetrated by the occupants of the car on the pedestrian travellers.
108 The Crown points to the following evidence to support the inference that what occurred was a group attack:
*The car turned around;
*Everyone got out of the car;
*One of the occupants of the car chased off Mr. [REDACTED];
*One of the occupants (Ms. [REDACTED]) encouraged the others; and,
*There was a "rush" of activity
109 The Crown relies on ss. 21(1)(a), (b) and (c), but does not rely on s. 21(2) as a route to culpability.
110 I intend to approach my analysis of the issues raised on the applications for directed verdicts on a count-by-count basis. Under each count I will assess whether there is a sufficient evidentiary basis to meet the Shephard test with respect to each defendant. I will begin with count one -- the offence of manslaughter.
Count One: Manslaughter
111 At present, there is little evidence that supports a conclusion that Mr. [REDACTED]'s death came about as a result of an act of culpable homicide.
112 At the time of his death, Mr. [REDACTED]'s blood/alcohol content was over 360 mg. in 100 ml. of blood. He was unsteady on his feet and needed the assistance of his son, Mr. [REDACTED], to walk home.
113 The pathologist who conducted the post-mortem examination thought the injury that resulted in Mr. [REDACTED]'s death was equally consistent with a blunt object striking his head and with his head striking a hard object. A second pathologist thought it even more likely that the fatal injury was the result of Mr. [REDACTED]'s head striking a hard surface as a result of a fall.
114 How Mr. [REDACTED] came to fall is a live issue. It would not be surprising for a person with a blood/alcohol content north of 360 mg. of alcohol in 100 ml. of blood to fall down.
115 That said, there was evidence on autopsy that Mr. [REDACTED] had a black eye. Given that there was something of a ruckus going on at the time he fell, one might reasonably infer that he sustained a punch to the area of his eye. One might then reason that it was the punch that caused him to fall and hit his head.
116 Assuming that the jury draws the inferences I have just described, their next task would be to determine, if they can, who was involved in striking Mr. [REDACTED].
117 There is no way to tell, based on the autopsy results, considered in the light of all of the other evidence adduced by the Crown, whether Mr. [REDACTED] was struck once or more than once. One could only speculate about that.
118 There is no evidence that any of the occupants of the car struck Mr. [REDACTED], save for Mr. [REDACTED], and even that evidence is thin. Mr. [REDACTED] testified that the occupants of the car went to [REDACTED]’s apartment after the confrontation on Centre Street. He said that Mr. [REDACTED] complained that his left hand was hurting, in the context of a discussion about how Mr. [REDACTED] got knocked out.
119 As I noted, Mr. [REDACTED]'s counsel concede that this evidence is sufficient to meet the Shephard test and warrant the charge of manslaughter against Mr. [REDACTED] being left with the jury on the basis that Mr. [REDACTED] participated as a principal in the killing of Mr. [REDACTED]. I accept that concession.
120 The balance of the defendants assert that there is no basis for a finding of culpability against them in relation to Mr. [REDACTED]'s death on the basis of principal participation. I agree. There is no evidence that any of the other defendants actively participated in an assault on Mr. [REDACTED]. Based on the reasoning in Pickton, none of them could be said to have committed an act that was a significant contributing cause of his death. Co-principal liability is precluded.
121 Party liability must still be considered.
122 The central theme of the Crown's submissions was that they need only demonstrate common participation, not common intention, in order to establish the culpability of each of the defendants for each of the charged offences.
123 The Crown's position was that the defendants jointly participated in a group attack on both Mr. [REDACTED] and Mr. [REDACTED]
124 As Pickton makes clear, however, phrases like "joint participation" or "concerted action" capture the entire gamut of principal participation, aiding and abetting. Pickton also rules out culpability on the part of Mr. [REDACTED], Mr. [REDACTED] and Ms. [REDACTED], as principals in the death of Mr. [REDACTED] since there is no evidence that any of them directly participated in the attack on him. Had there been evidence of their active participation in the attack on Mr. [REDACTED] directly, I would agree that all the Crown needs to demonstrate is joint participation.
125 In circumstances where multiple parties assault one individual, it is obvious that each knows that the other(s) intend to commit an assault. They are, at once, involved in the same undertaking. Whether they are, in those circumstances, regarded as principals or aiders is entirely irrelevant. The result is the same.
126 Where, as here, however, there is no evidence that multiple parties attacked Mr. [REDACTED], the culpability of Mr. [REDACTED], Ms. [REDACTED] and Mr. [REDACTED] can only flow through party liability -- as aiders or abettors. And in these circumstances the assertion by the Crown that they need only show "joint participation" is unhelpful.
127 Recall that to be culpable as an aider or an abettor to a charge of unlawful act manslaughter the aider or abettor must:
(a)Do something that helped or encouraged the principal to commit the unlawful act (in this case, the assault on Mr. [REDACTED]); and,
(b)At the time the help or encouragement was provided, know that the principal intended to commit the unlawful act, and intend to encourage or help him do so.
128 The liability of each defendant must be considered separately by the jury. So in the case of each of Mr. [REDACTED], Mr. [REDACTED], and Ms. [REDACTED], the jury must consider whether they individually -- or collectively -- did something that helped or encouraged the assault on Mr. [REDACTED], and whether, at the time they did so, they were aware that someone else intended to assault Mr. [REDACTED] and they intended to help or encourage him to do so.
(a)Helping or Encouraging
129 The Crown's assertion is that Mr. [REDACTED] and Mr. [REDACTED]aided the attack on Mr. [REDACTED] by physically fighting with Mr. [REDACTED]. The Crown suggests that the role they jointly played in what Mr. [REDACTED] described as "a mob descending on three people" was to assault one of those three and, inherent in that assault, prevent Mr. [REDACTED] from coming to his father's aid.
130 I consider the Crown's position to be weak. But I concede that the jury could reasonably draw the conclusion that Mr. [REDACTED] and Mr. [REDACTED] helped someone else assault Mr. [REDACTED] by keeping his son, Mr. [REDACTED]occupied.
131 In terms of Ms. [REDACTED]'s participation in the attack on Mr. [REDACTED], the Crown's assertion is that she encouraged someone else to assault him.
132 In my view, it is open to the jury to infer that Ms. [REDACTED] uttered the phrase, "he is the one who likes to hit women...get him". And it is open to them to infer that if she did utter that phrase, that it was in relation to Mr. [REDACTED]. Again, I think the Crown's case on this point is weak, particularly in light of the evidence of Mr. [REDACTED] and Mr. [REDACTED] about what utterances they heard a female/Ms. [REDACTED] say at the scene. But again I concede that the jury may reasonably draw the inferences suggested by the Crown, depending on their factual findings.
133 I agree with Mr. [REDACTED] that if the jury finds that there was more than one female at the scene at the relevant time, they could only speculate about which one uttered the purported encouragement. But the jury may not reach such a finding. It is open to them to find that Ms. [REDACTED] was the only female on the scene at the time Mr. [REDACTED] was assaulted.
134 In the result, I am satisfied that there are inferences reasonably available to the jury that would satisfy the Crown's obligation to prove that each of the defendants helped or encouraged the person who assaulted Mr. [REDACTED].
- (b)Purpose -- Knowledge and Intent
135 The next issue is whether there is evidence upon which the jury could conclude that each defendant knew that another in their group was going to assault Mr. [REDACTED] at the time the help or encouragement was given by each defendant.
136 To be clear, the defendant in question does not have to know in advance that another person intends to assault Mr. [REDACTED]. They could come to that awareness as events unfold. But their knowledge has to merge with their acts. In other words, the Crown must establish that, at the time the words of encouragement were spoken, or the acts in aid were committed, the defendant was aware of the principal's intentions and intended to help or encourage him.
137 One way for the Crown to establish the essential state of mind of each of the defendants is to demonstrate that the defendants formed a common intention to assault the pedestrians and to help each other do so. This is the Crown's principal assertion. If the Crown is able to establish such a common intention, they need only adduce evidence that each of the defendants participated in some way in that common plan.
138 Earlier I set out the primary facts the Crown relies on, collectively, to establish the inference of a common intention on the part of the occupants of the car to assault the pedestrians they encountered on Centre Street.
139 To come to a conclusion about whether the inference of common intention asserted by the Crown is reasonably available to the jury, it is necessary to take a broad view of the evidence as a whole. Relevant features of the evidence include the following:
*The defendants were in a car. They passed the three pedestrians and words were exchanged;
*The car turned around and came back;
*Mr. [REDACTED] testified that Mr. [REDACTED], who was seated behind the driver, told Mr. [REDACTED] to turn around. He did so. There was, according to Mr. [REDACTED], no further discussion amongst the occupants in the car about what actions, if any, they were going to take. Ms. [REDACTED] was, as Mr. [REDACTED] recalled, asleep at the time;
*When the car stopped, Mr. [REDACTED] alone got out. Mr. [REDACTED] promptly engaged him and, within five seconds, threw the first punch and took Mr. [REDACTED] to ground;
*Only after Mr. [REDACTED] had taken Mr. [REDACTED] to the ground did Mr. [REDACTED] exit the vehicle. Mr. [REDACTED] and Mr. [REDACTED] were consistent about that sequence. The video surveillance recording reflects the driver getting out, pausing for several seconds, then moving to the passenger side where Mr. [REDACTED] had been taken to ground;
*Eventually the balance of the occupants of the car got out, but exactly when in the chronology of events that occurred is not clear;
*The struggle between Mr. [REDACTED] Mr. [REDACTED] and Mr. [REDACTED] moved down to Mr. [REDACTED]'s driveway and possibly up against the side of his house. Mr. [REDACTED] broke free of the altercation and ran towards the rear of his father's house in search of a weapon. No one pursued him. He found what he described as a piece of rebar. He circled around a neighbour's house to rejoin the confrontation;
*Mr. [REDACTED] appears to have been quickly disarmed and the conflict between him, Mr. [REDACTED] and Mr. [REDACTED] came to an end. Mr. [REDACTED] was unable to describe what happened after he was disarmed. He recalls only that he found himself on his knees in the driveway. It was at that point that he noticed his father lying on the ground;
There is no evidence about how or when Mr. [REDACTED] became engaged in any altercation. The video surveillance reflects a male walking on his own towards Mr. [REDACTED]'s driveway about ten seconds after the scuffle had moved in that direction. Mr. [REDACTED] testified that it makes sense that that individual was his father;
*How Mr. [REDACTED] came to be on the ground is not clear. There is evidence that he had a black eye. And there is evidence that Mr. [REDACTED] complained of a sore left hand during a conversation about how Mr. [REDACTED]got knocked out. The jury may infer that somehow Mr. [REDACTED] and Mr. [REDACTED]came into conflict, resulting in Mr. [REDACTED] landing a left-handed punch to Mr. [REDACTED]'s right eye. How, why and when any such interaction occurred are largely matters of conjecture;
*At some point, a female may have encouraged someone to "get" someone else -- someone described as a man who liked to hit women. Mr. [REDACTED], however, did not report hearing anything of that sort. Moreover, Mr. [REDACTED] testified that Ms. [REDACTED]'s participation in the conflict was restricted to urging everyone to stop;
*There is no evidence that Mr. [REDACTED] engaged in the ruckus at all. There is scant evidence that Mr. [REDACTED] was in any way involved, other than as an observer. He testified that when he got out of the car he saw a male who was backing away with his hands help upwards. One might reasonably infer that this male was Mr. [REDACTED], who retreated from the scene rather quickly. Mr. [REDACTED] testified that as he was retreating someone ran up to him, possibly with their arm cocked. His recollection of events was, at best, poor. Mr. [REDACTED] denied that he chased anyone.
140 The evidence adduced through the Crown's case demonstrates that there was an encounter between two groups, some of whom engaged in physical exchanges while others did not. The question is whether there is sufficient evidence from which a jury, acting reasonably, could reasonably conclude that there was a common intention on the part of the occupants in the car to assault the pedestrians. I must keep in mind, of course, that intentions may have changed as events unfolded.
141 After much anxious consideration, I conclude that the proposed inference of a broad common intention to attack the pedestrians is not reasonably available on the evidence.
142 There is direct evidence from Mr. [REDACTED] that no one in the car discussed engaging the pedestrians in a physical fight. The decision to turn the car around readily supports an inference that one or more of the car's occupants intended to confront the pedestrians about what was said. But confronting them and beating them up are not the same thing.
143 Mr. [REDACTED] testified that he personally had no intention of engaging in a fight. The jury could certainly chose to reject that part of his evidence, but since there is no evidence that he actually engaged in a physical altercation, I do not see how they could possibly infer that he intended to fight, but just didn't take the opportunity to do so.
144 One can only speculate as to the intentions of Mr. [REDACTED]. There is no evidence before the court as to what, if any, involvement he had in the confrontation, apart from being the one to suggest to Mr. [REDACTED]that the car be turned around.
145 Mr. [REDACTED] exchanged words with Mr. [REDACTED] but did not initiate any physical altercation. There is no dispute that Mr. [REDACTED] threw the first punch and took Mr. [REDACTED] to ground.
146 Mr. [REDACTED] did not get out of the car or become engaged in any physical altercation until Mr. [REDACTED] was taken down. He then went to Mr. [REDACTED]'s aid.
147 When Mr. [REDACTED] ran to look for a weapon, Mr. [REDACTED] did not chase after him, nor did Mr. [REDACTED]. The fighting stopped until Mr. [REDACTED] returned with a weapon.
148 There is no evidence of anyone engaging physically with Mr. [REDACTED].
149 There is no evidence of anyone, save perhaps for Mr. [REDACTED], engaging with Mr. [REDACTED] and the circumstances in which that engagement occurred are completely unknown. There is no evidence that Mr. [REDACTED] engaged with anyone other than Mr. [REDACTED], save perhaps for a brief verbal exchange with Mr. [REDACTED].
150 The evidence regarding what, if anything, Ms. [REDACTED] said is equivocal. But at its highest and best she encouraged Mr. [REDACTED] "get" Mr. [REDACTED], who Ms. [REDACTED] said was a person known around Bradford as having hit his girlfriend. This is not, in my view, evidence of a common intention to descend as a mob on the three pedestrians.
151 The evidentiary record supports an inference that Mr. [REDACTED] and Mr. [REDACTED] may have formed an intention in common to fight with Mr. [REDACTED], once he took Mr. [REDACTED] to ground. I do not believe it supports any broader inference of an intention in common to assault the pedestrians.
152 In my view, on the current evidentiary record, no jury, properly instructed and acting reasonably, could infer that there was a common intention amongst the occupants of the car -- or even just the four defendants -- to physically assault the three pedestrians and to help each other do so.
153 The Crown may, of course, demonstrate that intentions changed as events unfolded. In other words, even if there was no common intention to begin with, that as the fight developed, different people may have decided to join in and help or encourage one another.
154 In terms of Ms. [REDACTED], it is open to the jury to infer that, as events unfolded, she offered encouragement to Mr. [REDACTED] to assault Mr. [REDACTED]. If they conclude that she uttered the phrase referred to by Ms. [REDACTED], it is not a significant leap to conclude that she uttered it for the purpose of encouraging an assault on Mr. [REDACTED], knowing that such an attack was underway or imminent.
155 The inferences urged by the Crown may not be particularly strong ones. But looking at the case in the Crown's most favourable light, there are available inferences that the jury may draw that could lead them to convicting Ms. [REDACTED] for abetting an unlawful assault on Mr. [REDACTED].
156 In terms of Mr. [REDACTED] and Mr. [REDACTED], I can find nothing in the evidentiary record that would reasonably support the inference that by engaging with Mr. [REDACTED] they intended to assist someone else in assaulting Mr. [REDACTED]. Their physical engagement with Mr. [REDACTED]was a reaction to Mr. [REDACTED]'s aggression. Moreover, there is no evidence that would support the conclusion that they even knew Mr. [REDACTED]or anyone else was going to engage with, or was engaged with, Mr. [REDACTED].
157 My conclusions with respect to the directed verdict applications on count one are therefore as follows:
(a)Based on Mr. [REDACTED]'s concession, which was reasonably made in the circumstances, the charge of manslaughter against him will remain in the hands of the jury;
(b)Based on evidence that Ms. [REDACTED] was at the scene, may be found to have been the only female at the scene and may have uttered words of encouragement to whomever assaulted Mr. [REDACTED], there is a sufficient basis to leave the charge of manslaughter against her in the hands of the jury;
(c)There is insufficient evidence upon which a properly instructed jury could convict either Mr. [REDACTED] or Mr. [REDACTED] of participating as principals in any unlawful attack on Mr. [REDACTED]. I find that, even if the jury concludes that their actions actually helped the person who assaulted Mr. [REDACTED], there is insufficient evidence in the record to support an inference that they had the necessary state of mind to convict them as aiders. In the result, the charge of manslaughter against each of them will be removed from the jury and a acquittals entered.
158 I will move on to count two.
Count Two: Assault with a Weapon
159 The analysis under count two is much simpler than count one.
160 The person who brought a weapon to the conflict was Mr. [REDACTED]. It is not entirely clear whether that weapon was a stick, a piece of rebar or something else. There is no evidence that anyone apart from Mr. [REDACTED] brought a weapon.
161 There is some evidence that Mr. [REDACTED] may have disarmed Mr. [REDACTED]. That evidence came from Mr. [REDACTED]'s testimony. If believed, the jury could reasonably conclude that at some point during the confrontation Mr. [REDACTED] had a weapon. That said, there is no evidence that Mr. [REDACTED], or anyone else for that matter, assaulted anyone with the weapon brought to the conflict by Mr. [REDACTED].
162 Mr. [REDACTED] did sustain a broken wrist. Getting hit in the wrist with a stick or piece of rebar could cause a broken wrist. That said, Mr. [REDACTED] did not testify that he was hit with the weapon. He has no idea how his wrist got broken. There are many ways to break a wrist. Falling, for instance, is a very common way. How Mr. [REDACTED]'s wrist ultimately came to be broken is a matter of pure conjecture.
163 In the result, count two must be removed from consideration by the jury and acquittals entered on that count in relation to all four defendants.
164 I will move on to count three.
Count Three: Assault Causing Bodily Harm
165 There is ample evidence that Mr. [REDACTED] and Mr. [REDACTED] engaged physically with Mr. [REDACTED]. And there is evidence that Mr. [REDACTED] sustained a broken wrist sometime between the start of the conflict and when he subsequently attended at Southlake Hospital in Newmarket. A broken wrist is a sufficient basis upon which a jury could conclude that Mr. [REDACTED] suffered bodily harm.
166 It is open to the jury to conclude that Mr. [REDACTED] and Mr. [REDACTED] unlawfully assaulted Mr. [REDACTED] and that his broken wrist was a result of that assault.
167 Counsel have raised defences including self-defence and consensual fight. These are best left to the jury in my view.
168 There is no evidence that Ms. [REDACTED] participated in the physical fight involving Mr. [REDACTED]. The Crown's position is that her words of encouragement were directed towards an assault on Mr. [REDACTED]. They have never suggested that she was encouraging an assault on anyone else. They have tendered some largely unreliable evidence that Mr. [REDACTED] had a reputation in the Bradford community for violence against women in an effort to relate Ms. [REDACTED]'s purported utterance to an assault on Mr. [REDACTED]. There is no such evidence in the record regarding Mr. [REDACTED] and so nothing to support an inference that the female voice was referring to him.
169 The Crown did not argue that it might be open to the jury to find that Ms. [REDACTED] was encouraging an attack on Mr. [REDACTED] or an attack on Mr. [REDACTED]. It strikes me that if they were to do so, they would be inviting the jury to speculate about what assault Ms. [REDACTED] was encouraging. In the Crown's position, it does not matter because they see this case as a mob assault on all three pedestrians.
170 I have already determined, however, that there is insufficient evidence to support the conclusion that there was a common intention to commit a so-called mob attack on the three pedestrians. In the result, it matters which assault Ms. [REDACTED] is alleged to have encouraged. The words attributed to her are singular: "get him". Her jeopardy, in the circumstances, is limited to the alleged unlawful assault on Mr. [REDACTED]. In the result, the charge against her of assault causing bodily harm in relation to Mr. [REDACTED] shall be removed from the jury and an acquittal entered.
171 Only the charge of manslaughter will remain against Ms. [REDACTED].
172 In terms of Mr. [REDACTED]'s potential culpability on count three, it appears undisputed that he did not participate directly in any assault on Mr. [REDACTED]. And I have concluded that there is insufficient evidence to support the contention that there was any joint plan to attack all three (or even two of three) pedestrians.
173 Mr. [REDACTED]'s potential culpability in relation to count three is restricted, in my view, to party participation.
174 There is no evidence, to this point, about the circumstances prevailing when Mr. [REDACTED] was purportedly struck. No one has testified that they saw him get hit. No one has testified about when he was hit or what else was going on at the time he was hit.
175 It is impossible, in my view, to conclude on the current record, that if Mr. [REDACTED] struck Mr. [REDACTED], that strike in any way aided or encouraged any alleged unlawful assault on Mr. [REDACTED]. As I have already noted, the physical confrontation between Mr. [REDACTED] and Mr. [REDACTED] and Mr. [REDACTED] was initiated by Mr. [REDACTED]. Mr. [REDACTED] and Mr. [REDACTED] were reacting to Mr. [REDACTED]'s actions.
176 I will accept that there is a sufficient evidentiary basis upon which a jury may infer that Mr. [REDACTED] knew that Mr. [REDACTED] and Mr. [REDACTED] were engaged in a physical altercation with Mr. [REDACTED]. But there is an insufficient evidentiary basis upon which a jury could reasonably conclude that Mr. [REDACTED] actually helped or encouraged that physical altercation, or that he intended to do so.
177 In the result, there is insufficient evidence to warrant leaving count three before the jury as it relates to Mr. [REDACTED], He will be acquitted of that charge.
178 As a result of the directed verdict applications, the following charges remain outstanding:
(a)Count One against Mr. [REDACTED] and Ms. [REDACTED] only. Acquittals on the charge of manslaughter shall be entered as against Mr. [REDACTED] and Mr. [REDACTED];
(b)Count Two is removed entirely from the jury's consideration and defendants are acquitted of the charge of assault with a weapon;
(c)Count Three against Mr. [REDACTED] and Mr. [REDACTED] only. Acquittals on the charge of assault causing bodily harm shall be entered against Mr. [REDACTED] and Ms. [REDACTED].
R.C. [REDACTED] J.