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 1 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.