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Criminal - Parties - Joint Enterprise. R. v. Chizanga
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments.
Here the court considers the 'joint enterprise' mode of CCC 21(1)(a), here apparently distinct from the CCC 21(2) 'common intention' mode:(2) The trial judge did not err in his charge on the joint enterprise mode of liability for murder
[83] Mr. Chizanga takes issue with the trial judge’s charge both on the actus reus and the mens rea of the joint enterprise mode of liability for murder. We shall address each in turn.
(a) The trial judge properly charged the jury on the actus reus for murder by joint enterprise
[84] Mr. Chizanga argues that the trial judge, in his charge to the jury, misstated the actus reus for co-principals involved in a joint enterprise to kill when he instructed that, if there was a joint enterprise, what each of the appellants did as part of that joint enterprise did not matter and they were both “equally guilty no matter what they did.”
[85] According to Mr. Chizanga, the existence of an agreement between Mr. Chizanga and Mr. Meredith to attack Mr. McIntosh and Mr. Chizanga’s presence on scene were not sufficient bases on which to convict Mr. Chizanga of second degree murder. Mr. Chizanga submits that it was necessary for the trial judge in his charge to clarify for the jury that Mr. Chizanga had to participate in some way in the murder itself to be liable in the joint enterprise, and he failed to do so.
[86] Mr. Chizanga also contends that the trial judge erred in conflating the co-principal joint enterprise mode of participation under s. 21(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, with the common intention mode of liability under s. 21(2). The latter was not relied on by the Crown. This, Mr. Chizanga argues, resulted in an erroneous instruction that the appellant was not required to commit the actus reus for murder to be found guilty of it.
[87] We see no error in the trial judge’s charge on the actus reus of murder based on joint enterprise.
[88] Liability under s. 21(1)(a) occurs when “two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission”: R. v. Strathdee, 2021 SCC 40, 463 D.L.R. (4th) 189, at para. 4. Under this section, it is open to a jury to convict an accused as a co-principal even if the extent of their individual participation in the violence is unclear. However, where the prosecution seeks to rely on a joint enterprise between co-principals as the basis for liability, the jury must be instructed that they must be convinced beyond a reasonable doubt that the parties were part of a joint endeavour, that they participated in the killing in some way, and that they meant for the deceased to be killed or suffer bodily harm that they knew was likely to kill the deceased: see R. v. Johnson, 2022 ONCA 534, 162 O.R. (3d) 92, at para. 66, aff’d 2023 SCC 24, 432 C.C.C. (3d) 139; R. v. Kennedy, 2016 ONCA 879, 345 C.C.C. (3d) 530, at para. 23; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 181; and R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63.
[89] The trial judge’s charge on this issue stated:If you conclude as the Crown urges you beyond a reasonable doubt that this was a joint enterprise between Mr. Chizanga and Mr. Meredith to kill Mr. McIntosh, then what each did towards that end does not matter. They are equally guilty no matter what they did. You do not need to determine who did what. That holds for manslaughter, murder and first degree murder. Where a criminal offence is committed by two or more persons each may play a different part. If they are acting together as part of a joint plan or agreement to commit the offence, each may be found guilty of it. [Emphasis added.] [90] Mr. Chizanga asserts that it was inaccurate to say that the appellants could be co-principals regardless of their actions under s. 21(1)(a). While a co-principal to a joint enterprise is not required to commit all of the acts making up the actus reus, they are required to contribute by acting in some way. Mere presence on scene is not enough. This requirement for action distinguishes a substantive offence from a conspiracy to commit an offence – for which it is sufficient to establish an agreement, an intention to agree, and an intention to put the plan in motion without the need for steps to further the conspiracy.
[91] In our view, while the trial judge’s reference that, “they are equally guilty no matter what they did” could be confusing in isolation, the instructions, read as a whole, were clear that Mr. Chizanga had to “do something” to be a joint principal. The passage quoted above makes clear that only by Mr. Chizanga and Mr. Meredith acting together, in furtherance of a joint plan, could guilt under s. 21(1)(a) follow. While the trial judge emphasized it did not matter what act each did as part of that joint plan, the trial judge was clear they each had to do something towards that end (i.e., the killing of Mr. McIntosh).
[92] Subsequently, the trial judge returned to this basis for conviction in his charge and stated:Moving on to party liability for Mr. Chizanga, remember my motive presentation instructions above. First, joint principals intention in common. The second shooter theory if found true beyond a reasonable doubt could evidence an intention in common with the main shooter. If you find beyond a reasonable doubt that Mr. Chizanga was a second shooter, can you conclude beyond a reasonable doubt that he had the mental element for murder, intention or recklessness as I have defined them above. If you are not convinced by the second gun evidence, you would look at the other evidence that the Crown says proves joint enterprise to kill Mr. McIntosh beyond a reasonable doubt. Partnership with Mr. Meredith in a criminal enterprise with a long-barreled gun in a Super 8 video with the qualification I put on that earlier, the limiting instruction I put on that earlier, presence and waiting at the Popeyes with Mr. Meredith, hiding in the washroom pending Mr. McIntosh’s arrival, fleeing immediately after the shooting and then reconvening in Mr. Khan’s taxicab. I will be providing you a bit later with a special instruction about these last two aspects, events that occurred after the fact. [Emphasis added.] [93] Mr. Chizanga argues that the trial judge’s use of the term “joint principals’ intention in common” was confusing and suggested a liability route pursuant to s. 21(2). He emphasizes that the Crown did not rely on intention in common under s. 21(2) as a mode of liability for the appellant. Intention in common is a mode of liability under s. 21(2) that requires the accused to have the intention to carry out a common unlawful purpose separate from the offence charged, knowing that the offence charged would be a probable consequence of carrying out the common purpose. Unlike co-principal liability, s. 21(2) extends liability for an accused to offences committed by others. The trial judge’s error in conflating these two modes of liability was pointed out by Mr. Chizanga’s trial counsel in the pre-charge conference but left in place notwithstanding trial counsel raising this concern.
[94] The respondent argues that the phrase “joint principals’ intention in common” was neither confusing nor a path to liability under s. 21(2), but rather a short-hand description of the Crown’s position that Mr. Chizanga acted jointly with Mr. Meredith in a plan to kill the victim. The respondent also suggests that it may have been a reminder to the jury that both parties had to have the requisite mens rea for murder to be convicted under the joint enterprise mode of liability. Immediately after using this phrase in the passage quoted above, the trial judge explained that if the jury was “not convinced by the second gun evidence,” they must “look at the other evidence that the Crown says proves joint enterprise to kill Mr. McIntosh.”
[95] Whether shorthand or simply an errant phrase, we do not see how the jury could be confused as to what the Crown had to establish for the jury to have no reasonable doubt as to the joint enterprise mode of liability. While the term “intention in common” appears in s. 21(2), the context of the charge makes clear that this is not how the trial judge was using the phrase, nor is there any basis for the jury to confuse the section of the Criminal Code on which they received instruction with a section of the Criminal Code that was not argued before them and on which they received no instruction. We see no error in the trial judge’s charge on the actus reus of s. 21(1)(a) dealing with the joint enterprise mode of liability for murder.
(b) The trial judge properly charged the jury on the mens rea for murder by joint enterprise
[96] Mr. Chizanga argues that at no point in the charge did the trial judge relate the mens rea for murder to the joint enterprise mode of participation. The trial judge referred to the mental state required for murder if the jury believed that Mr. Chizanga was the second shooter, or that he aided Mr. Meredith in killing Mr. McIntosh, but only discussed the actus reus for the joint enterprise mode of liability without mention of the proper mens rea. Therefore, according to Mr. Chizanga, there is a real danger that he was convicted of second degree murder as part of a joint enterprise absent the jury finding that he had subjective foresight of death.
[97] The respondent, as noted above, argues that the trial judge’s reference to “joint principals’ intention in common” signalled to the jury that both Mr. Chizanga and Mr. Meredith had to have the mens rea for murder in order to be found guilty of murder under the joint enterprise mode of liability. Elsewhere in the charge, the trial judge referred to liability as a co-principal for manslaughter and instructed the jury, “… If you find that there was a reasonable doubt about whether Mr. Chizanga knew that Mr. McIntosh would be shot, thinking only that he would be assaulted, and his joint purpose or his aiding was for this limited purpose, he would, if this was proved beyond a reasonable doubt, be guilty of manslaughter, not of murder.”
[98] The respondent submits that these instructions left no room for misunderstanding about what Mr. Chizanga’s intent had to be for him to be found guilty of murder and that the jury could not have missed the essential requirement that Mr. Chizanga’s guilt for murder turned on whether he participated in a joint enterprise or plan with Mr. Meredith to kill the deceased and that their shared intention was to kill him.
[99] In our view, the instructions, read as a whole, did not leave room for the jury to misunderstand what Mr. Chizanga’s intent had to be to be found guilty of murder.
[100] The jury asked the following question during its deliberation: “If we conclude they are acting according to joint principles [sic] are both to be given the same verdict?” The trial judge answered “yes.” Trial counsel for Mr. Chizanga submitted at the time that more guidance was required in the answer, as it should have been made clear to the jury in response to the question that to convict both Mr. Meredith and Mr. Chizanga, the jury would have to find that they were acting jointly for the purpose of killing Mr. McIntosh, not just in general.
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