BETWEEN: SPENCER LEE JORDAN APPELLANT -And

S.C.C. File No.: 37479 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL)

BETWEEN: SPENCER LEE JORDAN APPELLANT -and-

HER MAJESTY THE QUEEN RESPONDENT

______

FACTUM OF THE APPELLANT ______

Walsh LLP Conway Baxter Wilson LLP/s.r.l. 2800, 801 6th Avenue S.W. 400-411 Roosevelt Ave. Calgary, AB T2P 4A3 Ottawa, ON K2A 3X9

Brendan Myers Miller Owen M. Rees Tel: (403) 267-8467 Tel: (613) 780-2026 Fax: (403) 264-9400 Fax: (613) 688-0271 Email: [email protected] Email: [email protected]

Counsel for the Appellant, Ottawa Agent for Counsel for the Appellant, Spencer Lee Jordan Spencer Lee Jordan - 2 -

ORIGINAL TO: THE REGISTRAR

AND TO:

ATTORNEY GENERAL OF ALBERTA GOWLING WLG (Canada) LLP 300 - 332 6 Avenue, S.W. 2600-160 Elgin Street Calgary, Alberta T2P 0B2 Ottawa, ON K1P 1C3

Christine Rideout & Andrew Barg Telephone: (403) 297-6005 D. Lynne Watt FAX: (403) 297-3453 Tel.: (613) 786-8695 E-mail: [email protected] Fax: (613) 788-3509 Email: [email protected] Counsel for the Respondent, Her Majesty the Queen Ottawa Agent for Counsel for the Respondent, Her Majesty the Queen

TABLE OF CONTENTS PAGE

PART I – OVERVIEW AND STATEMENT OF FACTS ...... 1 PART II – STATEMENT OF ISSUES ...... 5 PART III – STATEMENT OF ARGUMENT ...... 5 a) Issue #1: Mens Rea and the Common Sense Inference ...... 5 b) Issues #2 through #4: Causation and Parties to the Offence ...... 9 c) Issue #5: Is s.231(5) of the Code available to elevate second degree murder to first in this case? ...... 19 PART IV − SUBMISSIONS AS TO COSTS ...... 29 PART V − ORDERS SOUGHT ...... 29 PART VI − TABLE OF AUTHORITIES ...... 30 PART VII − STATUTE AND REGULATION PROVISIONS ...... 31

PART I – OVERVIEW AND STATEMENT OF FACTS

1. This case is about the trial judge’s findings of fact and application of those facts to find that the Appellant did not have the requisite intent for murder in the second degree under s.229(a)(i) of the Criminal Code (“Code”)1, but then going on to disregard those finding of fact completely to use a “common sense inference” to find the Appellant committed murder in the second degree under s.229(a)(ii) of the Code. It’s submitted, in doing so, the Trial Judge turned the requisite intent in s.229(a)(ii) into an objective threshold, rather than a subjective one, as is constitutionally required. Further, this case is one about once a trial judge is unable to find factual causation of death, if the trial judge is permitted to skip legal causation of co-accused individually and proceed to parties to the offence under s.21 of the Code. Furthermore, in issue in this case is when evidence cannot factually support the inference that two (2) parents acted in concert resulting in the death of a child in their home, what degree of knowledge must be proven by the Crown to impose criminal liability on both parents for murder. As well, this case gives the Court the opportunity to clarify the legal test in s.21(1)(a) of the Code which appears to be necessary. Lastly, this case gives this Court the opportunity to opine on when s.231(5)(e) of the Code will be available in the parental-child homicide context. 2. The facts arise out of the death of six (6) year-old Meika Jordan (the “deceased”) while in the care of her father (the “Appellant”), and her step-mother, Marie Magoon (“Magoon”). 3. On or before Friday November 11, 2011, Magoon held the deceases hand over the flame of a lighter, causing a significant and serious, but non-life threatening burn to her hand.2 At the time and until well after the deceased death, Magoon maintained the burn was from a hair straightener. There was no evidence that the Appellant: (a) knew that Magoon was going to burn the deceased; (b) knew the true cause of the burn at the relevant time; or (c) was present at the time the burn was inflicted by Magoon.

1 Criminal Code R.S.C. 1985, c C-46 2R. v. Magoon, 2015 ABQB 351 (R. v. Magoon ABQB), para. 6 and 131 [Appellant Record (“AR”), Tab 1A]. 2

4. The deceased was to spend the weekend with her mother, and was to go to her mother’s house that very day. The Appellant contacted the deceased’s mother by text and advised her that he and Magoon were having issues, Magoon had left, and that he wanted their children to be with him for the weekend. In response, the deceased’s mother acquiesced.3 The Trial Judge determined the act of seeking to over-hold the deceased from her mother was a ruse to cover up the existence of the burn.4 5. On Saturday November 12, 2011 at 12:07AM, Magoon called Alberta Health Link inquiring about the possibilities of a burn treatment. As a result of those inquiries, the Appellant and Magoon put polysporin cream on the burn, and bandaged it.5 6. Later on Saturday November 12, 2011, the Appellant was in the kitchen with the deceased. He pushed the deceased, causing her to fall back onto the tile floor, and hit her head with force.6 Medical evidence established that these acts were not the fatal injury to the deceased. Nor did such acts bear a nexus to her cause of death.7 7. On the following day, Sunday November 13, 2011 before 12:00PM, the Appellant hit the deceased in the abdomen area with a fist, which was delivered with his full (adult) force. Thereafter, the Appellant had the deceased run up and down stairs as a method of discipline. When she refused to run, he spanked her. When her dissent continued, he grabbed her by the ankles, and dragged her up and down the stairs. During these acts, the deceased hit her head on the stairs. However, medical evidence concluded that the deceased hitting her head on the stairs, while being dragged, did not result in the fatal head injury; and the trial Judge accepted this conclusion.8 The Appellant then threw the deceased upstairs to the kitchen. In the kitchen, he threw her down on the floor a number of times, before picking her up and hitting her.9 The evidence does not support any inferences or facts that the deceased hit her head at this time, or what part of her body

3 Ibid, para 5, point 6. 4 Ibid, para 5, point 7. 5 Ibid, para. 4 item 5. 6 Ibid, para 24. 7 Ibid, para 125. 8 Ibid, para. 148. 9 Ibid, para. 124 and 129. 3

struck the kitchen floor, or the amount of force was used in hitting her.10 The aforesaid acts comprised the totality of the physical assaults that were found to be perpetrated by the Appellant upon the deceased.

8. Later on Sunday November 13, 2011 at about 4:00PM, the deceased was running on the stairs. Magoon tripped and kicked the deceased resulting in the deceased hitting her head on the wall, and the hardwood siding of the stairs.11 Thereafter, while cooking dinner, Magoon pushed the deceased a couple of times into a high chair. After dinner, Magoon held the deceased by the hands, standing over her, repetitively shaking her, causing the deceased head to hit the tile floor up to seven (7) times. There is no direct evidence that the Appellant was present for this, or knew it was taking place. 9. Magoon was baking cookies in the kitchen when the deceased became unconscious. 911 was called at 7:16PM and arrived at shortly thereafter. The deceased passed away at hospital the next day. 10. At trial, the Trial Judge concluded that she could not determine beyond a reasonable doubt whether the Appellant or Magoon administered the fatal blow or blows to the deceased’s head.12 The following findings of fact were rendered by the Trial Judge regarding the Appellant and Magoon on the issue of “being parties to the offence of murder”:

a. There was no evidence to find an expressed common agreement between the Appellant and Magoon; b. There was no evidence that the Appellant and Magoon were delivering blows to the deceased at the same time or always in the others presence; c. The Appellant and Magoon did not know the full extent of the other’s activities in relation to the deceased; and d. Magoon was unaware the Appellant hit the deceased in the stomach on Sunday November 13, 2011, and likewise, the Appellant did not know that Magoon was tripping the deceased and using force while pushing her causing her to fall downstairs. 13

10 Transcripts Oct 6, 2012 Blackfoot Hotel Wire, Page 25 & Page 28, line 5-9 as referenced at Trial Transcripts, p.1310 at line 8-37 [AR, Tab 3A]. 11 R. v. Magoon ABQB, above, note 2, para. 133 12 Ibid, para. 149. 13 Ibid, para. 159. 4

11. Despite these finding, the Trial Judge concluded the Appellant and Magoon were parties to the offence under s.21(1)(a) or s.21(2) of the Code. Her reasoning was both the Appellant and Magoon assaulted the same victim, directly participated in those assaults individually, and had the same mens rea; thus they both “actually committed” the offence under s.21(1)(a) of the Code. Further, with respect to s.21(1)(2) of the Code, the Trial Judge found both knew the other was physically disciplining the deceased, and the layout of their home permitted an inference they had the knowledge of the others actions.14 12. The Trial Judge then went on and made several key findings of fact with respect to the mens rea of both the Appellant and Magoon, finding:

a. Both the Appellant and Magoon did not mean to cause the deceased’s death; b. Both the Appellant and Magoon had little understanding of the limits on punishments they could inflict upon a child; and c. Both the Appellant and Magoon did not recognize the deceased’s complaints and lethargy arising from her injuries.15

13. Based on these findings of fact, the Trial Judge found both the Appellant and Magoon did not have the requisite intent for murder und s.229(a)(i). The Trial Judge however went on to rely upon “a common sense inference, that when a sane and sober person does something that has predictable consequences, the person usually intends or means to cause those consequences”.16 Relying on this inference alone, the Trial Judge found that both the Appellant and Magoon had the requisite subjective intent to commit murder in the second degree under s.229(a)(ii).17 In making this finding, the Trial Judge completely disregarded the findings of fact she made as to the mens rea of the Appellant and Magoon. She concluded the “common sense inference” was available as there was no evidence of alcohol/drug use or diminished capacity. 18

14 Ibid, para 160 and 161. 15 Ibid, para. 164. 16 Ibid, para. 166. 17 Ibid, para. 167-175. 18 Ibid, para. 166. 5

14. In summary, the Trial Judge concluded that the Appellant and Magoon were parties to the offence and therefore did not have to determine causation. What is more, the Trial Judge then disregarded her own finding of fact as to mens rea and relied upon a common-sense inference to convict the Appellant and Magoon of murder in the second degree. The Alberta Court of Appeal upheld that decision unanimously, but elevated the conviction to first degree murder through the use of the constructive murder provisions at s.231(5) of the Code.19

PART II - STATEMENT OF ISSUES

15. The Appellant submits that the following are the issue on appeal that this Court should consider: Issue #1: Can a “common sense inference” be utilized to find an accused had the requisite mens rea for murder under s.229(a)(ii) when the trier of fact made specific findings of fact and ruled based on those facts that the requisite intent under s.229(a)(i) did not exist? Issue #2: Once a trial judge determines there is no factual causation, can: (a) that judge jettison the causation analysis of co-accuseds individually, and (b) proceed directly to considering parties of the offence under s.21 of the Code? Issue #3: When the evidence does not factually support the inference that two (2) parents acted in concert resulting in the death of a child in their home by way of assault, what is degree and scope of knowledge that must be proven by the Crown, to impose criminal liability for first or second degree murder? Issue #4: What is the proper legal test to be a party to an offence under s.21(1)(a) of the Code? Issue #5: Was s.231(5) of the Code available in this case at trial or on appeal?

19 R. v. Magoon 2016 ABCA 412 (Magoon ABCA) [AR, Tab 1B]. 6

PART III - STATEMENT OF ARGUMENT

Issue #1: Mens Rea and the Common Sense Inference

16. The case before this court is a tragic one. The deceased was an innocent six (6) year-old girl. It’s a case that evokes emotions, created a media frenzy in Calgary, Alberta where it took place and nationally. The death of the deceased was devastating to the deceased’s loved ones. These unfortunate facts still require this Courts intervention and dispassionate response. As Justice Lamer writing for the majority of this Court said in R. v. Vasil20 in relation to children who died due to a fire caused by Mr. Vasil in that case:

Though the taking of life is always tragic, it is in this case even more so, as the victims are innocent young children in no way involved in the events that led to the setting fire to the house where they met death by asphyxiation. Nevertheless, whatever may be the degree of sympathy one entertains for the victims, Vasil’s guilt must be determined not by the degree of the innocence of the victims but by the nature or state of mind which he possessed at the time of the fatal events….21

17. In the case before this Court, the Trial Judge used a “common sense inference” to impute the subjective intent to the Appellant in order to find him guilty of murder. The Trial Judge used the common sense inference despite findings of fact that:

a. The Appellant did not mean to cause the deceased’s death; b. The Appellant had little understanding of the limits on physical punishments to inflict upon the deceased; and c. The Appellant did not recognize the deceased’s complaints and lethargy arising from her injuries. 18. Based on these findings, the Trial Judge rejected that the Appellant meant to cause death as per s.229(a)(i) of the Code finding specifically he didn’t. The Trial Judge however continued on to find him guilty under s.229(a)(ii) using a “common sense inference” imputation of intent. It’s submitted the Trial Judge erred in law in doing so on the facts of this case.

20 R. v. Vasil, [1981] 1 S.C.R. 469 [Appellant Book of Authorities (“ABA”), Tab 24] 21 Ibid, para. 10. 7

19. In R. v. Bottineau22 Justice Watt properly summarized the law with respect to using common sense inferences in proving the requisite intent for murder in the second degree, stating:

A frequent prosecutorial ally in proof of the mental element in section 229(a) of the Criminal Code is the common sense inference of intention from proof of conduct. A trier of fact may conclude, as a matter of common sense, that if a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences. To be more specific, if the sane and sober person does something that has the predictable consequence of another’s death, that person likely intends or means to cause that other person’s death. This common sense inference is simply one way or one method a trier of fact may use to determine an accused’s actual state of mind, what she or he actually meant to do. It is a conclusion that a trier of fact may only reach, however, after taking into account all the evidence that is relevant to the issue. It is worth emphasis that the trier of fact will not always be entitled to reason in a straight line from conduct that produced predictable consequences to the inferential conclusion that the person intended those consequences. Different considerations apply where there is evidence that may render it inappropriate to draw the common sense inference of intention from the consequences of conduct. Evidence of intoxication or diminished mental capacity exemplify matters that may render the common sense inference inappropriate in some cases.23 20. Most recently in R. v. Walle24 this Court discussed the use of common sense inferences regarding establishing the requisite intent for murder. In rejecting the Civil Liberties Association positon that a common sense inference cannot be utilized to find requisite intent for charges of murder, this Court stated:

[T]he inference is permissive, not presumptive, and that before acting on it, they must carefully consider the evidence that points away from it. ….. … [I]n assessing the specific intent required for murder … [a trier of fact] should consider the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence. ….

22 R. v. Bottineau [2006] O.J. No. 1864 [ABA, Tab 4] 23 Ibid, para. 66-7. 24 R. v. Walle 2012 SCC 41 [ABA, Tab 25] 8

[A]fter considering the whole of the evidence, [if the trier of fact] believe or have a reasonable doubt that the accused did not have one or the other of the requisite intents for murder at the time the offence was committed, then they must acquit the accused of murder and return a verdict of manslaughter. If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave …. a state of reasonable doubt about the accused’s intent, then the [trier of fact] may properly resort to the common sense inference in deciding whether intent has been proved.25 21. As per the above excerpt in R. v. Walle, a common sense inference can only be used to find the requisite intent for murder where:

a. There is no evidence that could realistically impact on whether the accused has the requisite mens rea; or b. Pertinent evidence does not raise a reasonable doubt as to the accused intent. 22. Here, the Trial Judge relied upon her findings of fact that the Appellant did not mean to kill the deceased, did not understand the extent of appropriate punishment for a child, and did not recognize the deceased complaints and lethargy from her injuries. On that basis, she found the Appellant did not have the requisite mens rea under s.229(a)(i). The Trial Judge then disregarded those finding of fact, and substituted a common sense inference of the requisite mens rea under s.229(a)(ii).

23. This Court in R. v. Nygaard26 concluded that the distinction between the requisite intents in s. 229(a)(i) and s.229(a)(ii) is a slight one, where they stated:

It is clear …… that there [is] but a slight relaxation of the requisite intent in s. 212(a)(ii) [now s.229(a)(ii)] from that required by s. 212(a)(i) [now s.229(a)(i)]. Section 212(a)(ii) [now s.229(a)(ii)] demands a highly subjective mental element to be present, that of the intent to cause the gravest of bodily injuries that are known to the accused to be likely to cause death to the victim.27 24. Further, in R. v. Martineau 28 this Court made it abundantly clear that:

[I]t is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death.29

25 Ibid, para 63-7. 26 R. v. Nygaard, [1989] 2 S.C.R. 1074 (S.C.C.) [ABA, Tab 16] 27 Ibid, para. 60. 28 R. v. Martineau [1990] 2 S.C.R. 633 [ABA, Tab 10] 9

25. It is one thing to make no findings of fact regarding mens rea and impute the requisite intent based on common sense inference. It’s another to make findings of fact regarding mens rea, find the Appellant did not have the requisite intent under s.229(a)(i), then disregard those findings of fact without any analysis, and impute the requisite intent using a common sense inference. It’s submitted, in doing so, the Trial Judge turned the requisite intent in s.229(a)(ii) into an objective threshold, rather than a subjective one, in violation of the principle as set by this Court in R. v. Martienu and therefore erred in law.

26. Given that the difference in mens rea between s.229(a)(i) and s.229(a)(ii) is slight. Given that it was found as a fact there was no requisite intention of the Appellant under s.229(a)(i). Given that the finding under s.229(a)(ii) was made with a total disregard to the facts found in relation to the state of mind of the Appellant in favour of applying a “common sense” inference objectively. And given that using an objective standard for mens rea in murder is unconstitutional.30 It is submitted the Trial Judge’s decision, and the decision of the Alberta Court of Appeal upholding the finding of intent under s.229(a)(ii) based on a “common sense inference” were in clear error and in conflict with the constitutional requirement that the Crown must prove subjective foresight of death beyond a reasonable doubt.

Issues #2 through #4: Causation and Parties to the Offence

27. The Trial Judge did not make a distinction between factual and legal causation. Factual causation concerns “an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result”.31 Legal causation is “directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred”.32 The Trial Judge held that: [I]t cannot be said beyond a reasonable doubt which party administered the fatal blow or blows to the head.33

29 Ibid, para.13. 30 Ibid. 31 R. v. Nette, 2001 SCC 78 (S.C.C.), at para 44 [ABA, Tab 15] 32 Ibid, para 45. 33 Magoon ABQB Para. 149. 10

28. The Trial Judge went on however after this determination to use s.21(1)(a) and 21(2) of the Code to say the Appellant and Magoon were parties, so it doesn’t matter who caused the fatal blow or blows. The finding the Appellant and Magoon were parties was made despite the Trial Judge’s finding of fact that: a. There was no evidence to find an expressed common agreement between the Appellant and Magoon; b. There was no evidence that the Appellant and Magoon were delivering blows to the deceased at the same time or always in the other presence; c. The Appellant and Magoon did not know the full extent of the other’s activities in relation to the deceased; and d. Magoon was unaware the Appellant hit the deceased in the stomach on Sunday November 13, 2011 and the Appellant did not know that Magoon was tripping the deceased and using force while pushing her causing her to fall downstairs.

29. Causation is separate and apart from mens rea, though the latter can usually make the former redundant in the context of murder, but not always. In R v. Nette this Court stated: While causation is a distinct issue from mens rea, the proper standard of causation expresses an element of fault that is in law sufficient, in addition to the requisite mental element, to base criminal responsibility. The starting point in the chain of causation which seeks to attribute the prohibited consequences to an act of the accused is usually an unlawful act in itself. …….. It would be rare in a murder case where the intention to kill or to cause bodily harm likely to cause death is proven for the accused to be able to raise a doubt that, while he intended the result that occurred, he did not cause the intended result. Where it is established that the accused had the subjective foresight of death or serious bodily harm likely to cause death required to sustain a murder conviction, as opposed to the lower manslaughter requirement of objective foreseeability of serious bodily harm, it would be unusual for an issue of causation to arise. Assuming a case arose where intention was established but causation was not proven, a proper verdict might be attempted murder: Cribbin, at p. 564.34

30. The mens rea consideration in this case by the Trial Judge in the causation analysis is particularly problematic, as the mens rea finding was based on an inference, in complete disregard of factual findings as to the mental state of the Appellant. 31. In R. v. Maybin35 this Court made it clear that the issue between causation and parties to

34 R. v. Nette, Above, note 32, para. 47. 35 R. v. Maybin 2012 SCC 24 [ABA, Tab 13] 11

the offence are separate. In that case, Karakatsanis J. writing for this Court unanimously stated: Any assessment of legal causation should maintain focus on whether the accused should be held responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing the morally innocent. ……

[T]he inquiry as to whether an intervening act is independent is distinct from the inquiry of whether the accused and the intervening actor are parties acting in concert or with a common purpose pursuant to s.21 of the Criminal Code. If they are parties, each is responsible for the acts of the other. In the legal causation analysis, their respective acts remain separate. Legal causation focusses on the connection (or independence) between the actions of the individuals and the effect of those actions, not on the connection between the actors.36

32. The Trial Judge concluded she could not determine who struck the fatal blows, and used s.21(1)(a) as a way around that. With respect to the finding under s.21(1)(a), it’s submitted it would be absurd to find that someone “actually commits” a homicide without first establishing either factual or legal causation. The Trial Judge relied upon the British Columbia Court of Appeal ruling in R. v. Ball37 that:

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.38 33. The Trial Judge however completely disregarded the meaning of the legal doctrinal phrase: “common participation”. The Court in R. v. Ball gave the following example prefacing the above, stating:

Where two people rob a bank with a gun, only one person can carry and point the weapon, and it may be more convenient for a second, not occupied with a weapon, to scoop up the cash. The robbers have not, individually performed all elements of the offence, yet they both have committed the crime in the sense that they are co-perpetrators. There is no need in such a case to turn to

36 Ibid, para. 29 & 55. 37 R. v. Ball, 2011 BCCA 11 [ABA, Tab 3] 38 Ibid, para. 25. 12

accessorial principles to determine guilt. So also with an attack by two or more on two (or more) victims — an attacker may strike only one victim while others strike the second, or they may all strike both. The attackers are all actual committers. Again, there is no need to resort to accessorial principles to find a basis for conviction.39 34. The distinction in R. v. Ball from the case before this Court is that there is no evidence of “common participation”. If anything, there was “individual participation” where the Appellant and Magoon acted without the knowledge of the other, albeit towards a common victim.

35. The case of R. v. Shilon40 from the Ontario Court of Appeal’s regarding the interpretation of s.21(1)(a) is in direct conflict with the position of the lower courts in this case. In R. v. Shilon the accused was alleged to have stolen a truck. The owner of the truck gave chase, and a high speed car chase ensued. The owner of the truck killed a police officer in the chase of the accused. The Crown argued that the accused as the thief of the truck and original author of the high-speed chase was a party to the killing of the police officer under s.21(1)(a). The Ontario Court of Appeal opined on the issue, stating:

I am of the view that mutuality of intention between parties to pursue a common unlawful venture is essential to a finding that the parties are co- perpetrators within the scope of s. 21(l)(a), unlike road-racing behaviour, a driver being chased by another cannot be regarded as a co-perpetrator to an offence committed by the chasing driver. The driver being chased is not intentionally encouraging or inciting the other. On the contrary, the driver being chased is, by his actions, likely intending to discourage the other from following. The two drivers are independent actors, each creating a danger that is separate and distinct from that created by the other. In my view, absent a common intention, one driver is not responsible for the conduct of the other within the meaning of s. 21(l)(a).

The Crown argues on the basis that liability for the offence flows from Trakas to the driver of the pick-up truck. For the reasons given, I reject the notion that the driver of the pick-up truck is liable as a co-perpetrator. That, however, does not end the analysis under s. 21(l)(a). As explained in the preceding section, the conduct of the driver of the pick-up truck may be seen to encompass the driving by Trakas on the basis that Trakas’ actions were a

39 Ibid, para. 24. 40 R. v. Shilon [2006] O.J. No. 4896 (Ont. C.A.) [ABA, Tab 22] 13

reasonably foreseeable consequence of the conduct of the driver of the pick- up truck. The driver of the pick-up truck knew he was being pursued by Trakas but he continued his high-speed flight, driving in a fashion that showed a wanton and reckless disregard for the lives or safety of others, knowing that it was likely that Trakas would follow suit. On that basis, the liability of the driver of the pick- up truck is as the perpetrator, that is, as the person who actually committed the offence of criminal negligence causing death.41 [Bold added for emphasis] 36. It’s submitted that properly interpreted, that s.21(1)(a) is triggered only when:

a. There is a mutuality of intentions to pursue a common unlawful purpose; or b. When the conduct of the second actor causing the death of the victim following the action of the first actor, is reasonably foreseeable by the first actor. 37. Support for this contention was illustrated in British Columbia Court of Appeal decision of R. v. Maybin42 prior to the matter coming before this Court. In Maybin, the two (2) Maybin brothers assaulted the victim in a bar following the victim moving their pool balls on the pool table which they were playing upon. After the assault, which the victim did not defend, the victim laid unconscious bent over the pool table. A bouncer in the bar, Gains, had indication that it was the victim who started the altercation. What Gains knew was that a fight had broken out, that the victim had been involved, and that the victim laid on the pool table. Despite the deceased being unconscious, Gains punched the victim in the head and with the assistance of another bouncer, carried the victim outside and left him on the back walkway of the bar. Someone outside the bar noted the victim was not breathing, attempted CPR, and then called an ambulance. The victim later died, and the medical cause of death was determined to be a subarachnoid hemorrhage in the brain cause by blunt force trauma. The Maybin brothers and Gains were charged with manslaughter. 38. At trial, much like the case here, the evidence was such that factual causation of the subarachnoid hemorrhage was undeterminable. The Crown’s pathologist gave evidence that the subarachnoid hemorrhage could have been caused by both the Maybin borthers and Gains, but could only say it was likely caused by the cumulative effect of the assault by the Maybin brothers and Gains. One of the Maybin brothers called their own

41 Ibid, para. 53-4. 42 R. v. Maybin 2010 BCCA 527 [ABA, Tab 12] 14

pathologist, who gave evidence that the subarachnoid hemorrhage was likely caused from the one blow delivered by Gains after the Maybin brothers’ assault had ceased. As the trial judge could not determine if the subarachnoid hemorrhage was caused by the Maybin brothers’ alone, Gains alone, or both the Maybin brothers and Gains, the trial judge acquitted all three accused. With respect to Gains not being a party to the assault by the Maybins brothers, the trial judge stated: In my judgment, the evidence falls far short of proving beyond a reasonable doubt that Buddha Gains “joined in” with or was “acting in concert” with the Maybins (or one of them) when he punched Michael Brophy. In some sense, the assaults in this case might be described as “an interrelated series of events.” But in my opinion, what happened here is not the situation described in the case law as being “a single transaction” ending in the death of the victim of a “joint” assault.43 [Bold added for emphasis]

39. In responding to the Crown appeal in R. v. Maybin , the majority of the Court of Appeal, which would be upheld by this Court, concluded that the trial judge was not wrong in focusing on factual causation, but rather wrong in not going further thereafter to determine legal causation. The representative passage from the Court states: [T]he trial judge ended his examination of the factual cause of death once he concluded he could not say which blow or combination of blows administered by the Maybin brothers and Mr. Gains caused the death of [the victim]. This focus was not wrong, but its scope was too narrow. The essential question in determining factual cause in this case was: “but for the actions of the parties, would [the victim] have died at that time and place”. If the answer to this question was that [the victim] would not have died but for the actions of the parties, the next question would be whether the parties should be held to be legally responsible for the death.44 [Bold added for emphasis]

40. The Court of Appeal went on to determine that “but for” the assault by the Maybin brothers on the victim rendering him unconscious and leaving him on the table where he was assaulted by Gains, the victim would not have died. This Court agreed with that conclusion.45 However, in assessing the guilt of Gains the majority of the Court of Appeal upheld the trial judge’s decision, stating:

43 R. v. Maybin BCSC 1277, para. 208-9 [ABA, Tab 11] 44 Ibid, para 24. 45 R. v. Maybin SCC, above, note 34 para. 20. 15

Because the trial judge could not exclude the possibility that the Maybins’ blows medically caused the death and that Mr. Gains’ blow did not add to it, the trial judge concluded that he had to acquit. Given his findings that Mr. Gains committed an independent assault of the victim and that the victim died some time after that assault, I am of the view that the application of a common sense inference would not have made any difference to the findings of the trial judge with respect to Mr. Gains. The trial judge found that he could not say that the actions of Mr. Gains were a factual cause of death. An application of principles found in Smithers would have made no difference to this finding. I would dismiss the appeal of the acquittal of Mr. Gains.46 [Bold added for emphasis] 41. Like in R. v. Maybin, it is unknown if the Appellant’s or Magoon’s assault caused the death of the deceased. The Appellant and Magoon did not act in concert. This is because they did not join in on the others conduct. One did not put the deceased in a position to be assaulted by the other. The assaults therefore cannot be said to be one transaction that both were party to under s.21(1)(a) as co-perpetrators. It’s submitted like the bouncer Gains in R. v. Maybin and the driver of the stolen truck in R. v. Shilon, the Appellant and Magoon had no mutual intention nor did they act in concert. On the contrary, the Trial Judge found they did not act in concert. Nor is this a situation like the driver of the stolen truck in R. v. Shilon or the Maybin brothers in R. v. Maybin where those parties “set up” the victim for another actor to cause their death. Neither the Appellant’s or Magoon’s conduct set up the victim to be killed by the other.

42. Furthermore, in cases like that before the Court in the parental-child homicide context, the Ontario Court of Appeal has ruled that where it appears possible that either one or both of the accused had inflicted the fatal blows, in order to resort to finding them co- principals/perpetrators they have to be acting in concert.47

43. It cannot be said beyond a reasonable doubt that as a consequence of the assaults of the Appellant upon the deceased separate and apart from the assaults of Magoon that the deceased would have died. It is unknown what blow caused the medical subdural hematoma resulting in her death. The punch administered to the deceased stomach by the

46 R. v. Maybin BCCA, Above, note 41, para. 49-51. 47 R. v. Wood [1989] O.J. No. 1162 (Ont. C.A.), para. 59-62 [ABA, Tab 26] 16

Appellant on its own was not really life threatening as found by the Trial Judge48 and would not have been found as a contributing cause of death “but for” the subdural hematoma. The assaults on the deceased were a tragic and grotesque “interrelated series of events” perpetrated by poor excuses for parents, but it’s submitted the assaults were not a signal transaction that the Appellant and Magoon were party to one another under s.21(1)(a).

44. With respect to the finding under s.21(2) that the Appellant and Magoon were parties as it could be inferred that there was an intention in common based on the lay out of the house and that both the Appellant and Magoon knew the other was physical with the deceased, it’s submitted that was an error in law.

45. First, the “ought to have known” provision in s.21(2) have been held to be inoperable for offences such as murder by this Court in R. v. Logan49 and the Ontario Court of Appeal in R. v. Harris.50 Therefore, being a party to the offence of murder cannot be inferred on an objective basis, and even if it could, the Trial Judge made factual findings that prevent such an inference being applied. Specifically, the Trial Judge found as facts: there was no expressed agreement between the Appellant and Magoon, no evidence the Appellant and Magoon inflicted blows to the deceased at the same time or in the others presence all the time, and both the Appellant and Magoon were unware of the nature of the force being used by the other.51 Where such findings are made, an inference like that permitted in R. v. Walle, cannot be sustained to impute being a party to murder.

46. Second, the fact that one parent knows the other parent is physically disciplining their child cannot be knowledge of an unlawful act on its own as physical discipline of children is expressly authorized by s.43 of the Code. Further, both Magoon and the Appellant would have to know the physical discipline went beyond that authorized by the Code, as well that such discipline would likely result in the death of the deceased. The

48 Magoon ABQB, above, note 2, para. 147. 49 R. v. Logan [1990] 2 S.C.R. 71 [ABA, Tab 9] 50 R. v. Harris 1989 CarswellOnt 91 (Ont. C.A.) leave to appeal denied 1989WL935897 (S.C.C.) [ABA, Tab 6] 51 Magoon ABQB, above, note 2, para 159. 17

Ontario Court of Appeal held in R. v. Adams52 that it is not sufficient to show that a co- accused merely knew the principal offender intended to commit some act of violence to convict a co-accused as a party to attempted murder under s.21, but that the co-accused must know the requisite intent of the principal.53 There is no evidence that the Appellant knew Magoon had intent at the relevant time to cause the death that was inflicted on November 13, 2011. Particularly, there is no evidence to support that the Appellant knew Magoon had the requisite intent to cause bodily harm to the deceased he knew was likely to cause death.

47. The Trial Judge used after the fact statements of the Appellant made on wire and to uncover operatives to find that at the time of the offence the Appellant knew about Magoon’s requisite intent. It was clear however that the trial judge could not find when each accused came to know of the information in those statements,54 nor do those statements really go to the knowledge of Magoon’s intention, just what the Appellant knew she did by the time those statements were made to undercovers and on the wire.

48. In R. v. Shand55 the Ontario Court of Appeal discussed the statutory phrase “knows is likely to cause .. death” in s.229(c) of the Criminal Code, which is an identical phrase to s.229(a)(ii). There, the Ontario Court of Appeal stated:

The trier of fact must focus on the specific moment when the act was committed and determine the perpetrator’s subjective foresight at that point. In doing so, the trier of fact must consider the perpetrator’s state of knowledge and all of the surrounding circumstances as well as the actions and statements of the perpetrator at and around that point in time. …. Once again, it is the perpetrator’s state of knowledge “at that time” that must be determined. Vague realization that death is possible will not be sufficient. Similarly, if the dangerous act was done as a reaction, and out of panic, this may tend to show that the required subjective foresight of death was not present at the time that the act was committed.

52 R. v. Adams (1989), 49 C.C.C. (3d) 100 (Ont. C.A.) [ABA, Tab 1] 53 Ibid, para. 33. 54 Magoon ABQB, above, note 2, para. 137-141. 55 R. v. Shand 2011 ONCA 5, leave denied 2012 CarswellOnt 270 (S.C.C.) [ABA, Tab 21] 18

For the act to constitute murder, the appellant must have known that death was “likely”. In this context, likely has to be understood as being something more than an awareness of risk or a possibility or chance of death. It is not sufficient that the accused foresee a danger of death.56 49. Clearly, the Appellants statements of his knowledge of Magoon’s treatment of the deceased can only go to what the Appellant knew at the time he made those statements. It cannot support a finding that he knew this information at the time of the offence.

50. Lastly, s.21(2) expressly states that to be trigged two accused must “assist each other” with the intention in common. In R. v. Hendersen57 Taschereau J. of this Court stated:

In order that s. 69(2) [now s.21(2)] may find its application, the co-conspirators must form not only a common intention to prosecute an unlawful purpose, but they must agree also “to assist each other therein”….58 51. The British Columbia Court of Appeal in R. v. Simpson59 adopted the above statement of law of Taschereu J, concluding:

In summary, I conclude that "an unlawful purpose" and "the offence" mentioned in s. 21(2) are different offences and that a person is not criminally liable under s. 21(2) unless he maintains his intention to carry out the unlawful purpose and to assist in the carrying out of the unlawful purpose and does, in fact, offer some assistance in the form of aiding and abetting, or is in a position to offer some assistance.60 52. In R. v. Moore61 the Ontario Court of Appeal concluded that an agreement to assist in carrying out a common unlawful purpose was a pre-requisite to trigging s.21(2).62 Further, in R. v. S. (J.)63 the Ontario Court of Appeal considered whether s.21(2) could be put to a jury in the circumstances where an accused was a gunfight against a third-party, and in that gunfight the third-party accidently killed an innocent bystander. The Ontario Court of Appeal ruled no, stating:

56 Ibid, para. 150-153. 57 R. v. Hendersen [1948] S.C.R. 226 [ABA, Tab 7] 58 Ibid, para. 29. 59 R. v. Simpson, 1988 CarswellBC 52 (S.C.C.), para. 14. [ABA, Tab 23] 60 Ibid, para. 125. 61 R. v. Moore [1984] O.J. No. 134 (Ont. C.A.)) leave to appeal refused [1985] S.C.C.A. No. 248 [ABA, Tab 14] 62 Ibid, para. 21. 63 R. v. S. (J.) 2008 ONCA 544 [ABA, Tab 19] 19

The Crown’s reliance on s. 21(2) is also misplaced on the evidence as adduced at the preliminary inquiry. That section expressly requires a common intention between the person who actually commits the crime and the person who is rendered liable for that crime under s. 21(2). The common intention must be “to carry out an unlawful purpose” and “to assist each other therein”. Section 21(2) speaks to situations in which two individuals pursue a common unlawful object together and one of them commits an offence other than the common unlawful object in the course of pursuing that common purpose.64 53. There was no evidence before the Court in this case of Appellant assisting Magoon or Magoon assisting the Appellant and both the Trial Judge and the Alberta Court of Appeal made no reference to the assistance requirement.

54. On the basis of the aforementioned, it’s submitted the utilization of s.21(1)(a) and s.21(2) of the Code in this case were in error.

Issue #5: Is s.231(5) of the Code available to elevate second degree murder to first in this case?

55. Section 231(5)(e) of the Code states:

231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: …… (e) section 279 (kidnapping and forcible confinement)

56. The interpretation of the phrase “while committing” in section 231(5)(e) is critical to this appeal. It permits the trier of fact to elevate charges to first degree murder where the factual and legal predicates permit. Elevation can only be considered under s.231(5)(e), if the accused person has been found guilty of second degree murder.65 The “while committing” condition, within the scope of section 231(5)(e) of the Code, requires the murder and the offence listed in s.231(5) to be a continuous sequence of events forming a single transaction.66 Killing a victim shortly after committing the offence listed in

64 Ibid, para. 44. 65 R. v. Nette, above, note 31, para. 50 66 R. v. Paré, [1987] 2 S.C.R. 618, para. 60 [ABA, Tab 17] 20

s.231(5) to cover up, and silence the victim to that offence, is sufficient to meet the single transaction requisite.67 However, the offences listed in s.231(5) must constitute distinct criminal acts, in that an offence, like unlawful confinement, must be distinct and independent from the act of killing itself, in that if the act of confinement and the act of killing are one and the same s.231(5)(s) is not available.68 If no extra domination is involved in the act of confinement, then it cannot be properly inferred that the accused confined the victim and then exploited that domination by an act of killing.69 57. An increased degree of participation of the accused must also be evidentiary established before second degree murder can be elevated to first degree under s.231(5)(e). Specifically there must be “substantial causation”.70 Here the Crown must establish that the accused has committed an act or series of acts which are of such a nature that they must be regarded as an essential, substantial and integral part of the killing.71 The substantial causation test may be met by being a party to the offence under s.21(b) or (c) or s.21(2).72 The Crown must prove however that the accused was party to both the murder and offence listed in s.231(5).73 For example, if one accused with intent to kill locked a victim in a cupboard while the other set fire to that cupboard, then the accused that confined the victim might be found to have caused the death of the victim pursuant to the provisions of s. 231(5). Similarly an accused that fights off rescuers in order to allow his accomplice to complete the strangulation of a victim might also be found to have been a substantial cause of the death.74 Factual examples where this Court considered s.231(5) are outlined in the following chart. Case Facts Determination R. v. Paré, [1987] 2 Paré, aged 17, lured a 7-year-old Paré murdered the victim after S.C.R. 618 boy to a place under a bridge, where indecently assaulting him. he indecently assaulted him. Boy Killing motivated by fear told Paré that he would tell his victim would tell his mother

67 Ibid. 68 R. v. Pritchard 2008 SCC 59, para. 27 [ABA, Tab 18] 69 Ibid, para. 29. 70 R. v. Nette, above, note 31, para. 60-61. 71 R. v. Harbottle [1993] 3 S.C.R. 306, para. 34-5 [ABA, Tab 5] 72 R. v. Nette, above, note 31, para. 62. 73 R. v. Kirkness [1990] 3 S.C.R. 74, para. 17 [ABA, Tab 8] 74 R. v. Harbottle above, note 71, para. 36 [ABA, Tab 5] 21

mother, when Paré became certain about the indecent assault. that the boy would tell his mother, First degree murder was he held the boy down on his back proper, temporally/causally for two minutes and then killed him connected to the underlying through strangulation with a shoe offence of sexual assault. lace and hitting him with an oil Continuous sequence of filter. events/transaction. R. v. Luxton, [1990] 2 Luxton flagged down the victim, a In light of all the facts, S.C.R. 711 cab driver, outside of a gay especially the fact that the nightclub. He asked the victim to appellant stabbed the victim a drive him to his hotel. When they total of 15 times in the neck arrived, he asked the victim to wait and head I am convinced that for him so he could get his luggage. a jury could not have Luxton came back with a knife. reasonably reached any other Told the victim to drive until he said verdict. stop. Luxton remembered being in a field with the knife wanting the victim’s money. He gave a statement to a prisoner in cells stating he stabbed the victim in the cab as she called him a “faggot”. The victim had 12 stab wounds to her neck and 3 to her head. She died due to bleeding out of her carotid artery. Jury convicted of murder 1 based on unlawful confinement. R. v. Arkell [1990] 2 Crown led evidence of a fellow No jury acting reasonably S.C.R. 695 prisoner who testified that while in could have returned any prison Arkell told him that he went verdict other than guilty of with the victim to a cabin where he murder. It is plain from the grabbed her and attempted to force jury’s verdict that it rejected her to perform an act of fellatio. The the possibility that the victim resisted, there was an appellant killed the victim argument and she ran away. Arkell after the commission of the got in his car and ran her over. He sexual assault, and rather stopped the car, got out and smashed found that the sexual assault her head with a rock. The appellant and the killing were part of further told fellow prisoner that he one continuing sequence of took the body down a trail and hid events so as to form a single it. He then went to buy gas and oil transaction. from a Canadian Tire store, got a shovel from his father, put the body in a pit and set it ablaze.

R. v. Kirkness, [1990] 3 Kirkness and co-accused broke into No evidence that Kirkness was S.C.R. 74 the victim’s house, a frail 83 year a party to the suffocation of old woman. The victim was home the victim, and therefore not and the co-accused went into her liable for murder. In fact, he bedroom and sexually assaulted her told the co-accused not to do while Kirkness guarded the it. Kirkness acquitted bedroom door outside. After the completely and elevation to assault, Kirkness went into the first degree not available on bedroom to steal items. The co- the facts as Kirkness was not a accused dragged the victim into the party to the homicide at all. bathroom and put a bag over her head. Kirkness said to the co- accused not to do that as you’re going to kill her. The victim died of suffocation. R. v. Harbottle [1993] 3 Victim confined with hands tied. Had it not been for Harbottle S.C.R. 306 Co-accused raped victim while holding the victim’s legs, the confined. Co-accused strangled victim would have been able victim to death why Harbottle held to resist the attempts to victims legs to stop her kicking. strangle her due to her size in comparison to the co-accused. Elevation to first degree murder appropriate (para. 38) R. v. Pritchard 2008 Victim the wife of a supplier of Having got his hands on the SCC 59 illegal marijuana. Pritchard went to marijuana, it was reasonable victim’s farm. Held victim at gun to conclude Pritchard chose to point forcing her to show him where exploit the position of the marijuana stash was. Pritchard dominance over victim that marched her outside through a field resulted from her confinement and victim showed him where it at gunpoint, by killing her, was. Victim shot in the back of head thereby eliminating a potential and buried thereafter. witness. Elevation to first degree murder appropriate (para. 38).

58. The Appellant has previously posited above why a conviction for second degree murder is unsustainable in this case. If the Appellant is wrong in that submission, it is submitted that the elevation from second degree murder to first degree by way of s.231(5)(e) is not permissible in this case. 59. The Appellant submits that the unlawful confinements in this case only arise when the Appellant is purported to be assaulting or disciplining the deceased. There is no evidence 23

of unlawful confinement outside the assaults not authorized by s.43 of the Code. For example, it’s not unlawful for a parent to make a child go to their room or spank them, or for a school teacher to send a child to detention after school, or for a youth sporting coach to make a child run stairs or do jumping jacks as a form of discipline. Such forms of discipline happen in households, schools, hockey rinks and sporting facilities across Canada daily. They are verbal commands or “psychological detentions” contemplated and authorized by s.43 of the Code. As such, they cannot be said to be confinements “without lawful authority” within the meaning of s.279(2) and s.231(5)(e), and therefore must be removed from the analysis under s.231(5)(e). It is submitted that lawful confinements and assaults authorized under s.43 of the Criminal Code that form part of the narrative of the purport unlawful confinement, should not be considered in the s.231(5)(e) analysis, and must be severed out. Though clearly part of the narrative, it’s submitted the lawful confinement and physical disciplines authorized by s.43 of the Code cannot be considered to create unlawful confinement. The indexed actions in this case conducted by the Appellant would include: having the victim to run stairs, do jumping jacks, as well as spanking her. 60. There is no doubt however that the excessive physical assaults in the guise of discipline exercised upon the deceased in this case were unlawful. Those assaults by the Appellant in this case included: punching the six year-old deceased in the stomach, dragging her up and down stairs by her ankles, and throwing her onto a tile kitchen floor. These assaults would not be authorized by s.43 of the Code. The issue is however, that these physical assaults are the very acts which were imputed to cause the deceased’s death. In order to trigger s.231(5)(e) the act creating the confinement must be distinct and independent from the act of killing. If the act of confinement and the act of killing are one and the same, then s.231(5)(e) is not available as per this Court’s ruling in R. v. Pritchard.75 Domination of a child by a parent is part and parcel of discipline and assaults of a child by that parent, whether the assault is authorized by s.43 or not. Unlike the robbery considered by this Court in R. v. Pritchard where the accused exploited his dominance over the victim after successfully finding the stash he was looking to rob by shooting the

75 R. v. Pritchard, above, note 68, para. 27 and 29. 24

victim to cover his tracks, thereby creating a distinct act, that is not the case in the matter at Bar. 61. Nor is this a circumstance like those this court has considered since rendering the R. v. Paré decision in 1987. The purported confinement in this case is one in the same to the imputed act of killing and is not a distinct or independent act of confinement. The aggravated assaults are what were found to cause the death of the deceased. The confinement purported in this case only arises from those assaults. There was no extra domination involved in the confinement created by the assaults. In R. v. Pritchard this Court specifically endorsed the ruling of R. v. Sandu76 as an example of the discrete acts requirement. There, Sandu was party of a group beating where he and numerous others attacked the victim. Following the Crown calling their case, Sandu applied for a directed verdict, inter alia, regarding first degree murder by way of unlawful confinement under s.231(5)(e). Justice Trafford on the Ontario Superior Court granted the directed verdict as it related to s.231(5)(e), stating: Looking at the evidence as a whole, in my view there is no evidence in this case of two discrete acts. The evidence does establish resistance by the deceased to the attack. He was surrounded by a group of people. However, the surrounding of the deceased and the brutal attack leading to his death all occurred within approximately thirty to forty-five seconds. The surrounding of the deceased and the brutal attack on him were, on the evidence, one and the same.77

62. It is therefore submitted that the aggravated assaults which created both the confinement and the cause death in this case are one and the same and s.231(5)(e) is not available on that basis. There is simply no distinction on the facts of this case between the purported confinements and the assaults to permit s.231(5)(e) to operate. Additionally, there is no evidence that when the Appellant was not disciplining or assaulting the deceased, that she was confined to the house or part of it. There is no evidence the Appellant bound the deceased and left her confined between the disciplining and assaults. The only evidence of confinement arose as a direct result of the assaults and therefore there is no discrete confinement in order to trigger s.231(5)(e).

76 R. v. Sandu [2005] O.J. No. 5845 (Ont. S.C.) [ABA, Tab 20] 77 Ibid, para. 21. 25

63. Both the majority and dissent in from the Alberta Court of Appeal in this case also considered if the over-holding of the deceased with the consent of the deceased’s mother, obtained through misrepresentation, that was adverse to the terms of the access and custody order constituted unlawful confinement. The majority, rightly so, found that it was unlikely it could, while the minority concluded otherwise. It’s submitted the fact there was a custody order, and the Appellant was over-holding the deceased against the terms of the order are not relevant to the s.231(5)(e) analysis. The Appellant offers two (2) main reasons. First, if the parties had an informal verbal arrangement as to custody and access and the Appellant got a deviation from the agreement based on the same misrepresentation, such a question would not even be before this Court. Second, the detention of a child in breach of a custody order is an offence distinct from unlawful confinement as legislated at s.282 of the Code and so is detention without a custody order at s.283 of the Code. Section 282 of the Code makes detaining a child under the age of 14 years old in breach of a custody order an offence, and s.283 does so even without a custody order. Sections 282 and 283 are not listed in s.231(5) as predicated offences. If parliament intended that a murder committed while one parent is detaining or keeping a child from another parent be elevated from second to first degree, s.282 and s.283 would be enumerated in s.231(5). Neither the majority nor minority considered s.282 or s.283. It’s submitted that s.231(5)(e) is simply not available on the basis that the Appellant had over-held the deceased with consent of the deceased’s mother obtained through misrepresentations. Further, an over-holding in breach of s.282 and s.283 are not acts of domination over the victim which s.231(5)(e) is aimed at addressing. 64. With respect to causation in the s.231(5) analysis, in looking at all of the jurisprudence from this Court and the principles arising therefrom as a whole, the causation test for s.231(5) appears to be in the vein of a “but for” test. That is, but for the accused’s action of confinement, would the decease have died. Though this Court has not expressed the test in s.231(5) in those words, the decisions of the court on the same clearly make it the practical result. The “but for” test is a higher standard, in that it requires proof of factual causation. The “but for” test is in line with this Court’s dicta that the accused 26

participation in the killing must be essential, substantial and integral part of the killing in order to trigger s.231(5). This is particularly important when there is co-accused.

65. In R v. Kirkness for example, Kirkness was party to sexual assault by watching the door while it went on, however he was not party to the murder as he told the co-accused not to kill the victim. The death of the victim in R. v. Kirkness would therefore not be said to have happened “but for” the action of Kirkness as the co-accused acted on his own volition. In R. v. Harbottle however the opposite was true. Harbottle held the victims legs while the co-accused killed her, and the co-accused could not have killed the deceased “but for” Harbottle’s assistance, therefore he too was liable under s.231(5). 66. In this case, as the factual causation of death is not determinable, s.231(5)(e) cannot be engaged. The degree of participation of the Appellant and Magoon in the actual killing blow is not determinable. In the case before this Court, it is clear that it cannot be determined if “but for” the Appellant’s action if the deceased would have died. The Trial Judge found the causation for homicide generally, that is beyond the de minimis range, with respect to the punch to the stomach being enough. However, that is not the case with the higher threshold for causation to elevate from murder in the second degree to murder in the first degree by way of s.231(5). The act of the Appellant must not just be beyond the de minimis range, but also an essential, substantial and integral part of the killing. As it cannot be determined who delivered the killing blow, and as stated prior, the Appellant and Magoon are clearly not parties under s.21, it’s submitted s.231(5)(e) is not available on that basis either. The terms “essential” and “integral” part of the killing dwell from this Court’s rulings in R. v. Harbottle and R. v. Nette. It’s submitted that the terms “essential” and “integral” signify that without the Appellant’s act, the killing was not possible, which easily translates to “but for” the Appellant’s act, the killing was not possible. It’s submitted that in order to trigger s.231(5)(e), the trier of fact must find that “but for” the confinement committed by the Appellant, the victim would not have died. Here, as already stated, that is not possible. It was found by the Trial Judge that:

a) It could not be determined what blow caused the deceased’s death or who delivered it; b) There was no evidence of a common expressed agreement between the Appellant and Magoon to dominate the deceased; c) There was no evidence that the Appellant and Magoon were delivering blows to the deceased at the same time, in each other’s presence or that the other knew at the time the blows were delivered by the other that such assault was occurring.

67. As such, the causation test in s.231(5)(e) cannot be met. It cannot be said that “but for” the confinement caused by the Appellant’s assaults, that the deceased would have died, as it is undeterminable how the killing blow was delivered and who delivered it. The assaults of the Appellant which resulted in the confinement cannot be said to be an “integral” or “essential” cause of death, as it can’t be determined if the Appellant’s assaults which created confinement actually caused death. Further, there is no evidence that the Appellant knew, at the requisite time, of the assaults committed by Magoon upon the deceased creating the unlawful confinements by her. 68. A “but for” test for unlawful confinement in s.231(5)(e) does not conflict with any of the jurisprudence this Court has endorsed or given. There is no doubt that in the cases where this Court has upheld unlawful confinements in s.231(5)(e), including R. v. Luxton, R. v. Harbottle and R. v. Pritchard, there was no question that “but for” the confinement, the deceased would not have died. In R. v. Luxton “but for” the unlawful confinement of an innocent cab driver by threat with a knife allowing for the killing with said knife the killing could not have occur. In R. v. Harbottle “but for” the accused’s helping confine the victim by holding her legs the murder by strangulation committed by the co-accused could not have been successful. In R. v. Pritchard, “but for” the confinement of the victim at gunpoint and forcing the victim to find the stash sought to be stolen, the victim would not have been in a position for Pritchard to shoot her in the back of the head to cover up the robbery. In all three of those cases the causes of death and the extent of the accused’s participation in the same was clear. In this case, such cause and extent are not determinable. It is not possible to determine if the Appellant’s assaults, which created the purported confinement, were integral or essential to the death of the deceased, as it is not known if the assaults actually caused the deceased death. As such, the causation 28

requirement in s.231(5)(e) is not met in this case, and the Court of Appeal erred in finding s.231(5)(e) was available. 69. Further, with respect to the Alberta Court of Appeal’s utilization of s.686(4)(b)(ii) of the Code to enter a conviction of first degree murder on appeal, it’s submitted that was in error. This Court has made it clear in R. c. Audet78 that substituting a conviction on appeal is only available when: a. The trial judge made an error of law; b. That if the error of law was corrected, the verdict would not have been same at trial; c. There are adequate findings of fact at trial necessary to support a conviction on appeal; and d. That, “but for” the error of law, the accused would have been found guilty at trial.79

70. The Alberta Court of Appeal found that the Trial Judge’s error was coming from the starting point that children are always confined. It’s submitted that starting point had no bearing in the Court below. Outside of the assaults, there were no findings of fact with respect to confinement when the assaults were not occurring. The Alberta Court of Appeal erroneously imputed a confinement from the Friday to the Sunday starting with the burn perpetrated by Magoon upon the deceased. As said previously, not complying with a custody order or arrangement are not offenses listed in s.231(5). Had the deceased not been scheduled to go to her mother’s the immediate Friday before her death, there is no evidence to say she would have been anywhere else but the home and physical location she was with her father, the Appellant. There was no evidence she was locked in a room from the Friday onward or the like. The purported confinements were not one confinement, but arose from a separate series of disciplinary assaults, where each confinement ended when the assault and discipline subsided. It’s submitted the conviction on appeal was simply not available to the Alberta Court of Appeal in this case.

78 R. c. Audet [1996] 2 S.C.R. 171 [ABA, Tab 2] 79 Ibid, para. para. 30-31. 29

PART IV. SUBMISSIONS AS TO COSTS

71. The Appellant does not seek costs of this appeal.

PART V. ORDERS SOUGHT

72. The Appellant respectfully seeks an Order setting aside his conviction and granting him a new trial.

All of which is respectfully submitted this 26th day of May, 2017. --~ Brendan Myers Miller Counsel for the Appellant, Spencer Jordan

.furJeinis Patel Co-Counsel for the Appellant, Spencer Jordan 30

VI - TABLE OF AUTHORITIES

Authorities Paragraph

1. R. v. Adams (1989), 49 C.C.C. (3d) 100 (Ont. C.A.) 46 2. R. c. Audet [1996] 2 S.C.R. 171 69 3. R. v. Ball, 2011 BCCA 11 32 4. R. v. Bottineau [2006] O.J. No. 1864 19 5. R. v. Harbottle [1993] 3 S.C.R. 306 57 6. R. v. Harris 1989 Carswell Ont 91 (Ont. C.A.) denied 1989WL935897 45 7. R. v. Hendersen [1948] S.C.R. 226 50 8. R. v. Kirkness [1990] 3 S.C.R. 74 57 9. R. v. Logan [1990] 2 S.C.R. 731 45 10. R. v. Martineau [1990] 2 S.C.R. 633 24 11. R. v. Maybin BCSC 1277 39 12. R. v. Maybin 2010 BCCA 527 38 13. R. v. Maybin 2012 SCC 24 31 14. R. v. Moore [1984] O.J. No. 134 (Ont. C.A.)) denied [1985] S.C.C.A. No. 248 52 15. R. v. Nette, 2001 SCC 78 (S.C.C.), 27 16. R. v. Nygaard, [1989] 2 S.C.R. 1074 (S.C.C.) 23 17. R. v. Paré, [1987] 2 S.C.R. 618 56 18. R. v. Pritchard 2008 SCC 59 56 19. R. v. S. (J.) 2008 ON CA 544 52 20. R. v. Sandu [2005] O.J. No. 5845 (Ont. S.C.) 61 21. R. v. Shand 2011 ONCA 5, leave denied 2012 Carswell Ont 270 (S.C.C.) 48 22. R. v. Shilon [2006] O.J. No. 4896 (Ont. C.A.) 35 23. R. v. Simpson, 1988 Carswell BC 52 (S.C.C.) 51 24. R. v. Vasil, [1981] 1 S.C.R. 469 16 25. R. v. Walle 2012 SCC 41 20 26. R. v. Wood [1989] O.J. No. 1162 (Ont. C.A.) 42

PART VII - STATUTE AND REGULATION PROVISIONS

CRIMINAL CODE R.S.C. 1985, c C-46 CODE CRIMINEL, LRC (1985), Ch. C-46

Parties to the offence Participants à une infraction

21 (1) Every one is a party to an offence 21 (1) Participent à une infraction : who a)quiconque la commet réellement; (a) actually commits it; b)quiconque accomplit ou omet d’accomplir (b) does or omits to do anything for the quelque chose en vue d’aider quelqu’un à la purpose of commettre; aiding any person to commit it; or c)quiconque encourage quelqu’un à la (c) abets any person in committing it. commettre.

Common intention Intention commune

(2) Where two or more persons form an (2) Quand deux ou plusieurs personnes intention in common to carry out an forment ensemble le projet de poursuivre unlawful purpose and to assist each other une fin illégale et de s’y entraider et que therein and any one of them, in carrying out l’une d’entre elles commet une infraction en the common purpose, commits an offence, réalisant cette fin commune, chacune d’elles each of them who knew or ought to have qui savait ou devait savoir que la réalisation known that the commission of the offence de l’intention commune aurait pour would be a probable consequence of conséquence probable la perpetration de carrying out the common purpose is a party l’infraction, participe à cette infraction. to that offence. S.R., ch. C-34, art. 21. R.S., c. C-34, s. 21.

Murder Meurtre

229 Culpable homicide is murder 229 L’homicide coupable est un meurtre (a) where the person who causes the death of dans l’un ou l’autre des cas suivants : a human being a) la personne qui cause la mort d’un être (i) means to cause his death, or humain: (ii) means to cause him bodily harm that he (i) ou bien a l’intention de causer sa mort, knows is likely to cause his death, and is (ii) ou bien a l’intention de lui causer des reckless whether death ensues or not; lesions corporelles qu’elle sait être de nature (b) where a person, meaning to cause death à causer sa mort, et qu’il lui est indifférent to a human being or meaning to cause him que la mort s’ensuive bodily harm that he knows is likely to cause ou non; his death, and being reckless whether death b) une personne, ayant l’intention de causer ensues or not, by accident or mistake causes la mort d’un être humain ou ayant death to another human being, l’intention de lui causer des lésions notwithstanding that he does not mean to corporelles qu’elle sait de nature à causer sa cause death or bodily harm to that human mort, et ne se souciant pas que la mort en being; or résulte ou non, par accident ou erreur cause (c) where a person, for an unlawful object, la mort d’un autre être humain, même si elle does anything that he knows or ought to n’a pas l’intention de causer know is likely to cause death, and thereby la mort ou des lésions corporelles à cet être causes death to a human being, humain; notwithstanding that he desires to effect his c) une personne, pour une fin illégale, fait object without causing death or bodily harm quelque chose qu’elle sait, ou devrait savoir, to any human being. de nature à causer la mort et, conséquemment, cause la mort d’un être humain, même si elle désire atteindre son but sans causer la mort ou une lésion corporelle à qui que ce soit.

Hijacking, sexual assault or kidnapping Détournement, enlèvement, infraction sexuelle ou prise d’otage

231(5) Irrespective of whether a murder is 231(5) Indépendamment de toute planned and deliberate préméditation, le meurtre on the part of any person, murder is first que commet une personne est assimilé à un degree meurtre au murder in respect of a person when the death premier degré lorsque la mort est causée par is caused cette personne, by that person while committing or en commettant ou tentant de commettre une attempting to commit infraction an offence under one of the following prévue à l’un des articles suivants : sections: a) l’article 76 (détournement d’aéronef); (a) section 76 (hijacking an aircraft); b) l’article 271 (agression sexuelle); (b) section 271 (sexual assault); c) l’article 272 (agression sexuelle armée, (c) section 272 (sexual assault with a menaces à weapon, threats une tierce personne ou infliction de lésions to a third party or causing bodily harm); corporelles); (d) section 273 (aggravated sexual assault); d) l’article 273 (agression sexuelle grave); (e) section 279 (kidnapping and forcible e) l’article 279 (enlèvement et confinement); séquestration); or f) l’article 279.1 (prise d’otage). (f) section 279.1 (hostage taking).

Forcible Confinement Séquestration 279(2) Every one who, without lawful authority, confines, imprisons or forcibly 279(2) Quiconque, sans autorisation seizes another person is guilty of légitime, séquestre, emprisonne ou saisit de force une autre personne est coupable : (a) an indictable offence and liable to imprisonment for a term not exceeding ten a) soit d’un acte criminel et passible d’un years; or emprisonnement maximal de dix ans; (b) an offence punishable on summary b) soit d’une infraction punissable sur conviction and déclaration de liable to imprisonment for a term not culpabilité par procédure sommaire et exceeding eighteen months. passible d’un emprisonnement maximal de dix-huit mois.

Abduction in contravention of custody Enlèvement en contravention avec une order ordonnance de garde 282 (1) Everyone who, being the parent, guardian or person having the lawful care or 282 (1) Quiconque, étant le père, la mère, le charge of a person under the age of fourteen tuteur ou une personne ayant la garde ou la years, takes, entices away, conceals, detains, charge légale d’une personne âgée de moins receives or harbours that person, in de quatorze ans, enlève, entraîne, retient, contravention of the custody provisions of a reçoit, cache ou héberge cette personne custody order in relation to that person made contrairement aux dispositions d’une by a court anywhere in Canada, with intent ordonnance rendue par un tribunal au to deprive a parent or guardian, or any other Canada relativement à la garde de cette person who has the lawful care or charge of personne, avec l’intention de priver de la that person, of the possession of that person possession de celle-ci le père, la mère, le is guilty of tuteur ou une autre personne ayant la garde ou la charge légale de cette personne, (a) an indictable offence and is liable to est coupable : imprisonment for a term not exceeding ten years; or a) soit d’un acte criminel et passible d’un (b) an offence punishable on summary emprisonnement maximal de dix ans; conviction. b) soit d’une infraction punissable sur déclaration de culpabilité par procédure sommaire.

Abduction Enlèvement

283 (1) Every one who, being the parent, 283 (1) Quiconque, étant le père, la mère, le guardian or person having the lawful care or tuteur ou une personne ayant la garde ou la charge of a person under the age of fourteen charge légale d’une personne âgée de moins years, takes, entices away, conceals, detains, de quatorze ans, enlève, entraîne, retient, receives or harbours that person, whether or reçoit, cache ou héberge cette personne, not there is a custody order in relation to that qu’il y ait ou non une ordonnance rendue par person made by a court anywhere in Canada, un tribunal au Canada relativement à la with intent to deprive a parent or guardian, garde de cette personne, dans l’intention de or any other person who has the lawful priver de la possession de celle-ci le père, la care or charge of that person, of the mère, le tuteur ou une autre personne ayant possession of that person, is guilty of la garde ou la charge légale de cette personne est coupable: (a) an indictable offence and is liable to imprisonment for a term not exceeding ten a) soit d’un acte criminel passible d’un years; or emprisonnement maximal de dix ans; (b) an offence punishable on summary b) soit d’une infraction punissable sur conviction. déclaration de culpabilité par procédure sommaire.

Appeal from acquittal Appel d’un acquittement 686(4) If an appeal is from an acquittal or 686(4) Lorsqu’un appel est interjeté d’un verdict that the appellant or respondent was acquittement ou d’un verdict d’inaptitude à unfit to stand trial or not criminally subir un procès ou de nonresponsabilité responsible on account of mental disorder, criminelle pour cause de troubles mentaux the court of appeal may rendu à l’égard de l’appelant ou l’intimé, la (a) dismiss the appeal; or cour d’appel peut : (b) allow the appeal, set aside the verdict a) rejeter l’appel; and b) admettre l’appel, écarter le verdict et, (i) order a new trial, or selon le cas : (ii) except where the verdict is that of a (i) ordonner un nouveau procès, court composed of a judge and jury, enter a (ii) sauf dans le cas d’un verdict rendu par verdict of guilty with respect to the offence un tribunal composé d’un juge et d’un jury, of which, in its opinion, the accused should consigner un verdict de culpabilité à l’égard have been found guilty but for the error in de l’infraction dont, à son avis, l’accusé law, and pass a sentence that is warranted aurait dû être déclaré coupable, et prononcer in law, or remit the matter to the trial court une peine justifiée en droit ou renvoyer and direct the trial court to impose a l’affaire au tribunal de première instance en sentence that is warranted in law. lui ordonnant d’infliger une peine justifiée en droit.

Court File No.: 37479

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM ALBERTA COURT OF APPEAL)

BETWEEN:

SPENCER LEE JORDAN

Appellant

- and –

HER MAJESTY THE QUEEN Respondent

FACTUM

WALSH LLP 2800, 801 6th Avenue S.W. Calgary, Alberta T2P 4A3

Brendan Myers Miller Tel: (403) 267-8467 Fax: (403) 264-9400 Email: [email protected]

Counsel for the Appellant, Spencer Lee Jordan