|
Criminal - Parties - Common Intention [CCC 21(2)]. R. v. Saboon
In R. v. Saboon (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against a finding that the defendant was guilty of first-degree "murder on the basis that he was a participant in a common unlawful purpose pursuant to s. 21(2) of the Criminal Code".
The court considers subjective and objective mens rea (here for murder, a 'specific intent' offence), and this in a CCC 21(2) 'common intention' context:[52] The parties are agreed that the trial judge erred in relying upon an objective mens rea to find Mr. Morrison guilty of first degree murder pursuant to s. 21(2) of the Criminal Code. Having regard to the impugned passage in the reasons, and having considered them in totality, I agree with the respondent’s fair concession that the trial judge committed reversible error and the curative proviso does not apply.
[53] The impugned passage reads as follows:I find that each of the accused would have known or ought to have known that the shooting of the physically-large drug dealer [Mr. Yorke] was a probable consequence of their carrying out the home invasion robbery with two guns at the ready. [Emphasis added.] [54] As already mentioned, participation in a common unlawful purpose was an alternative path to liability for Mr. Saboon. Accordingly, there is no dispute that the error only touches Mr. Morrison’s appeal.
[55] Why is it an error?
[56] Section 21(2) extends liability to those who are not principals, aiders or abettors to offences. It applies in those situations where the accused has agreed with at least one other to commit an offence and, while carrying out that agreed-upon unlawful purpose, one or more of the other participants to the original agreement (not the accused) commits a different offence: R. v. Mohamed, 2025 ONCA 611, at para. 41. Section 21(2) applies where the accused knew (or, in the case of offences not requiring specific intent, ought to have known) that one of the participants to the agreed-upon unlawful purpose would likely commit the incidental offence while pursuing the common unlawful purpose: Mohamed, at para. 41. Of course, murder is a specific intent offence. Therefore, in the case of murder, s. 21(2) extends responsibility for murder but only if the murder is committed in carrying out the originally agreed-upon unlawful purpose and the accused had the requisite degree of mens rea, specifically subjective foresight of a murder committed by one of his co-participants in carrying out the original agreement.
[57] In other words, only subjective knowledge will suffice if such knowledge is constitutionally required to establish mens rea, as is clearly the case for murder. That is so even though, on its face, s. 21(2) provides for both a subjective and objective basis to establish the requisite foresight (“knew or ought to have known”).
[58] As acknowledged by Crown counsel on appeal, the conviction here was based upon a finding of objective mens rea. At no point did the trial judge find that Mr. Morrison had subjective foresight that murder would be a probable consequence of the home invasion robbery.
[59] As the Crown also concedes, looking beyond the impugned passage, the reasons overall do not provide any comfort that the trial judge was aware of the requirement for subjective foresight of murder. There is no distinction drawn between objective and subjective foresight. Moreover, there is no reference to a need to go beyond what a reasonable person would have foreseen in the circumstances.
[60] I note one further issue. For Mr. Morrison to be guilty of murder by way of s. 21(2), he would have had to know that one of the participants to the robbery would probably commit murder and not simply a “shooting”. This means Mr. Morrison had to know that, in the course of the robbery, one of his accomplices was likely not only to use his gun but to “cause the victim’s death with one of the intents listed in s. 229(a) of the Code – namely, either the intent to cause death, or the intent to cause bodily harm that the participant knew would likely cause death and recklessness as to whether death ensued or not”: R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, leave to appeal refused, [2019] S.C.C.A. No. 338.
[61] The Crown does not invoke the curative proviso and for good reason. I agree with both parties that the Crown could not meet its burden in showing that the conviction for murder should stand notwithstanding the error. The error was not a harmless or minor one; it had a clear impact on the verdict. And the parties agree, as do I, that the evidence against Mr. Morrison is far from being “so overwhelming that any other verdict would have been impossible to obtain”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.
[62] Accordingly, the conviction for murder was set aside at the conclusion of the hearing and a conviction for manslaughter entered.
|
