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Criminal - Counts - Joinder of Counts [CCC 589] . R. v. Henderson
In R. v. Henderson (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here where the issue concerned "the propriety of joining charges for aggravated assault and failing to provide necessaries of life in an indictment charging second degree murder" [under CCC 589]:(1) The validity of the indictment
[19] The appellant’s first argument is that the indictment was invalid because it contravened s. 589 of the Criminal Code by joining counts for other offences to an indictment charging murder.
[20] Section 589 prohibits the joinder of counts charging an indictable offence other than murder in an indictment charging murder subject to two exceptions contained in subsections (a) and (b), respectively, “the same transaction exception” and the “consent exception”:589. No count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder unless
(a) the count that charges the offence other than murder arises out of the same transaction as a count that charges murder; or
(b) the accused signifies consent to the joinder of the counts.[4] ....
(a) The Crown was not required to elect between charging second degree murder and aggravated assault with respect to the recent qualifying injuries
[28] As a starting point, I reject the appellant’s submission that, in relation to the injuries that were capable of being a significant contributing cause of Kaleb’s death, the Crown was required to elect between charging second degree murder and aggravated assault, and that alternative pleading is not allowed. Accordingly, I also reject his submission that the indictment was invalid for including the offence of aggravated assault, at least with respect to the recent qualifying injuries. Instead, I conclude that the real issue with respect to the appellant’s first ground of appeal is whether the trial judge erred by leaving both the recent and older qualifying injuries with the jury as a basis for finding him guilty of aggravated assault because the older qualifying injuries did not arise from the same transaction as that forming the subject matter of the second degree murder charge.
[29] The validity of the indictment was not raised as an issue in the court below. On appeal, the appellant does not challenge the validity of the time frame set out in the indictment with respect to the second degree murder count, nor did he seek to have it amended either at trial or on appeal. All counts in the indictment covered the same time frame and the Crown relied on the recent qualifying injuries to support a finding of guilt on all charges. In the result, all charges in the indictment arose, at least in part, from the same factual circumstances and therefore, clearly, from “the same transaction” at least with respect to the recent qualifying injuries.
[30] The appellant provided no support for his argument that pleading in the alternative in relation to a murder charge is not permitted and that the Crown was not entitled to, in effect, plead an alternate route to liability for the recent qualifying injuries if the jury found the appellant not guilty of second degree murder or manslaughter.
[31] As I will explain more fully below, s. 589 was amended in 1991 to add the two exceptions included in subsections (a) and (b) with the stated purpose of permitting other offences, such as sexual assault and robbery, to be joined with a murder charge if a person was killed during their commission: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 67.
[32] The Parliamentary Secretary to the then Minister of Justice and Attorney General of Canada when setting out that purpose during second reading of Bill C-54 also explained that because, prior to its amendment, s. 589 contained an absolute prohibition against joinder of counts other than murder with a murder count, prosecution of such other offences “does not take place unless there is an acquittal on the murder charge.” The proposed amendment would allow joinder of such other offences and “[a]s a result the fact finding process will be much improved and justice will be better served since the possibility of delays will be greatly diminished.” One stated purpose of s. 589(a) was thus to allow an improved and more efficient fact-finding process based at least in part on permitting alternative pleading.
[33] Further, in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, at para. 49, this court made clear that, in an indictment charging murder, one transaction can give rise to more than one charge. Forcillo involved an accused police officer charged with both murder and attempted murder arising from two volleys of shots fired at the deceased in quick succession. The murder charge related to the first volley of shots, which caused the death of the accused, the attempted murder charge related to the second volley of shots, which was not a significant contributing cause of death. The accused was acquitted of murder but convicted of attempted murder. On appeal, this court rejected the appellant’s submission that the jury should have been told that they could convict of attempted murder only if they found the second volley of shots was a “discrete transaction” from the first volley. In so concluding, this court stated:The jury had two counts to consider. The characterization of conduct as involving one or more transactions is primarily a distinction drawn for the purposes of determining whether a charge as framed by the Crown conforms with the pleading requirement in s. 581 and s. 589 of the Criminal Code. There is no pleadings rule that one transaction cannot give rise to more than one charge. The characterization of two volleys as one or two transactions was irrelevant to the jury's determination of whether the Crown had proved the allegation in either or both counts in the indictment beyond a reasonable doubt. [Emphasis added.] [34] Based on the foregoing reasons, I would not accept the appellant’s submission that the indictment was invalid.
(b) The trial judge did not err in leaving both the recent and older qualifying injuries with the jury as a basis for finding the appellant guilty of aggravated assault: all counts as left by the trial judge arose from the same transaction
[35] The leading Ontario case on interpretation of the same transaction requirement in s. 589(a) of the Criminal Code is R. v. Manasseri.
[36] Manasseri was a case in which the deceased was initially assaulted by Mr. Manasseri while attempting to order drinks at a bar. The witness descriptions of the assault varied, but at least some included details of Mr. Manasseri smashing the deceased’s head against the metal surface of the bar. After the deceased was ejected from the bar, a second assailant, Mr. Kenny, left the bar, approached the deceased, grabbed him by the shirt and punched him in the head. The deceased fell to the ground unconscious. He was taken to hospital by ambulance but died the next day. Mr. Manasseri was charged with second degree murder, Mr. Kenny with manslaughter. The two were tried together. A jury found Mr. Manasseri guilty of murder and Mr. Kenny not guilty of manslaughter but guilty of assault causing bodily harm. One of their grounds of appeal was that joinder of the counts was improper because the manslaughter count did not arise out of the same transaction as the second degree murder count.
[37] In Manasseri, at para. 68, citing R. v. Borowiec, 2016 SCC 11, [2016] 1 S.C.R. 80, at para. 18, Watt J.A. noted that the modern rule of statutory interpretation applies to the interpretation of s. 589 and requires that the words of the section be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament.
[38] After considering the words “transaction” and “same” in their ordinary and grammatical sense, the word “transaction” and the phrase “same transaction” as they appear elsewhere in the Criminal Code, and judicial consideration of those provisions, at paras. 79 and 80, Justice Watt set out the following important conclusions concerning the application of the relevant principles to that case:It is neither necessary nor desirable for my purposes to essay an exhaustive definition of the term “transaction” as it appears in s. 589(a). Nor is it necessary to strictly import the interpretations that have been offered in relation to other provisions. It is enough to say that a “transaction” is not confined to a single event or occurrence. Rather, the term, almost inherently, can and does embrace a series of connected acts or events that extend over a period of time. In this case, although discrete events committed by different people, they reveal an underlying factual, legal and temporal unity that permits them properly to be labeled as part of “the same transaction”.
[…] Common sense should be our guide in deciding whether separate acts or events can comfortably wear the clothes of “the same transaction”. These events should not be subjected to metaphysical examination, artificial contraction or unreasonable expansion to force upon them a different complexion than they, in their totality, otherwise display. Nor should the propriety of joinder be dictated by expert medical opinion about the relative impact of discrete blows on what caused a deceased to die. Such evidence is no more dispositive on the issue of the propriety of joinder than it is on the cause of death. [Emphasis added.] [39] In deciding that joinder was appropriate in Manasseri, Justice Watt noted that the fundamental issue in that case was criminal responsibility, namely, who was legally responsible for the unlawful killing, and that significant contributing cause was the standard for criminal responsibility. That standard, meaning in that case, whether either or both parties were a significant contributing cause of the death, “provided the “necessary legal and factual connective to warrant joinder.”
[40] In this case, the primary issues at trial relevant to the question whether the older qualifying injuries occurred as part of the “same transaction” as the recent qualifying injuries identified as potential significant contributing causes of Kaleb’s death are causation and identity.
[41] Because of the pathologist’s inability to identify the cause of death, the Crown relied on the totality of Kaleb’s injuries in support of its position that death was caused by human action to, in effect, eliminate the possibility that death may have been due to natural causes. Further, because of the inability of the pathologist to precisely date Kaleb’s injuries, the Crown relied on Kaleb’s visit to the family doctor on November 14, 2016 and the appellant’s inexperience and impatience in baby care to support its position that, realistically, the appellant was the only possible perpetrator of the numerous injuries Kaleb had suffered, including those that were a significant contributing cause of his death.
[42] On the particular facts of this case, the older and more recent qualifying injuries have a sufficient factual, legal and temporal connection to meet the “arises out of the same transaction” criterion in s. 589(a). Although the older and more recent qualifying injuries were caused by discrete events that occurred over a period of time, that does not automatically disqualify them from meeting the arising out of the same transaction criterion: Manasseri, at para. 79. As explained by Justice Watt, “‘transaction’ is not confined to a single event or occurrence.” Instead, “the term, almost inherently, can and does embrace a series of connected acts or events that extend over a period of time” (emphasis added).
[43] In Manasseri, the “legal and factual connective” that supported joinder was the legal standard for criminal responsibility, significant contributing cause. Here, the legal and factual connective that supports joinder is the relevance of both the older and recent qualifying injuries to the issues of causation and identity in relation to Kaleb’s death. On the facts of this case, those issues could not properly be evaluated by the trier of fact without understanding the series of events that preceded Kaleb’s death. Those events are accordingly part of the “same transaction” as that term is used in s. 589(a). Common sense dictates that joinder is appropriate.
[44] In reaching this conclusion, I have considered the decisions on which the appellant relies to submit that the older and recent qualifying injuries did not arise out of the same transaction. I am not persuaded that such decisions mandate that finding.
....
[50] The trial judge’s interpretive analysis of “same transaction” in Beausoleil was limited. He did not specify his interpretation and, in deciding to sever, he relied on a narrow understanding of statements of legislative purpose made at the time s. 589 was amended. He focussed unduly on portions of these statements that referred to enabling “offences arising out of the same incident” to be tried together and “do[ing] away with” separate trials for offences committed at the same time as a murder. He also relied on a narrow description of the meaning of same transaction in R. v. McKibbon (1982), 1981 CanLII 83 (ON CA), 35 O.R. (2d) 124 (C.A.),[6] a decision the trial judge said was codified by the enactment of s. 548 of the Criminal Code.
[51] This limited analysis carried out in Beausoleil has now been superseded by Manasseri, in which Justice Watt considered the Parliamentary statement of legislative purpose referred to in Beausoleil but did not find “same transaction” confined to a single event or occurrence. Further, while Justice Watt found that “some contextual similarity exists between the committal authority of s. 548(1)(a) and the joinder authority of s. 589(a)”, he did not rely on McKibbon in his discussion of s. 548(1)(a), and, in any event, found it was not necessary to “strictly import [into s. 589(a)] the interpretations that have been offered in relation to other provisions [of the Criminal Code].” As I have said, the analysis in Manasseri has superseded Beausoleil.
....
[59] As I have said, in Manasseri, as he was required to do, Justice Watt relied on the modern rule of statutory interpretation to consider the scope of s. 589(a). He did not find that the meaning of “same transaction” was confined by the portion of the Parliamentary statement of intent relied on by the appellant nor by the meaning attributed to that term, or to the term “transaction”, in other sections of the Criminal Code. He concluded that “transaction” can “embrace a series of connected acts or events that extend over a period of time” and that “common sense” should determine whether separate acts or events are part of the “same transaction”. In this case, although caused by discrete events, the older and recent qualifying injuries are linked by their legal and factual relevance to the issues of causation and identity. Moreover, allowing the aggravated assault and failing to provide necessities of life charges to proceed with the second degree murder charge based on both the older and recent qualifying injuries is entirely consistent with the parliamentary purposes in enacting s. 589(a) of improving the fact finding process and avoiding delay.
....
[63] Based on the foregoing reasons, I am satisfied that it was open to the trial judge to leave the older and recent qualifying injuries with the jury in support of the aggravated assault charge and that doing so did not offend s. 589 because, even if based on the older qualifying injuries, the count arose from the same transaction as the second degree murder charge.
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