CRIMINAL CODE OFFENCES - Manslaughter - Aggravated assault - Attempts, conspiracies and accessories

Appeal by the Crown from Strathdee’s acquittal for manslaughter. Cross-appeal by Strathdee from conviction for aggravated assault. Strathdee and several others were involved in an assault on the occupant of an apartment. Strathdee admitted that the group went to the suite to confront the occupants about a prior assault on a friend. Four men were stabbed. One of them died of a single stab wound. The trial judge found there was a group assault on the occupants of the suite by those who joined in that assault, including Strathdee, and that bodily harm was objectively foreseeable as a probable consequence of the group assault. While she was unable to conclude who inflicted the various stab wounds to three of the men during the group assault, she found Strathdee guilty of aggravated assault on those individuals as a party to those offences. The trial judge was not satisfied who inflicted the single stab wound that killed Tong. She reasoned that an accused was not liable as a joint principal under s. 21(1)(a) of the Code where the cause of death could clearly only have been inflicted by one person. She further found that Strathdee did not abet the perpetrator of the stabbing under s. 21(1)(c) of the Code. She thus acquitted Strathdee of second-degree murder and manslaughter. The Crown argued the trial judge erred in law by misinterpreting and misapplying principles under s. 21 of the Code and by requiring proof that Strathdee directly inflicted the specific injury that resulted in Tong’s death to convict him of manslaughter. Strathdee cross-appealed his convictions for aggravated assault arguing they were inconsistent with his outright acquittal for the manslaughter of Tong and unreasonable. He argued it was unreasonable for the trial judge to conclude there was a common intention to commit an assault on the occupants of the suite and to conclude that wielding and spraying the fire extinguisher created objective foreseeability of non-trivial bodily harm to all the occupants.

HELD: Appeal allowed. Cross-appeal dismissed. The trial judge’s finding of common intent in an assault after the men entered the suite was not unreasonable or unsupportable on the evidence. The alleged inconsistency between Strathdee’s aggravated assault convictions and his acquittal for manslaughter did not arise from inconsistent findings of fact but from an error of law respecting participation in manslaughter. Thus, Strathdee’s appeal from convictions for aggravated assault was dismissed. The manslaughter acquittal arose from the trial judge’s misdirection on the law on joint participation in the killing of Tong. Having found that the members of the group who joined the attack, including Strathdee, were engaged in a common purpose to assault the occupants of the suite, the trial judge was required to assess Strathdee’s culpability as a joint principal to manslaughter under s. 21(1)(a) of the Code based on her own critical fact finding that this was a group assault. Applying the correct law to the found facts in the present case, Strathdee was guilty of manslaughter as a joint principal. Just as Strathdee was responsible by his participation in a group assault for the stabbings amounting to aggravated assault, he was also responsible for the one stab wound that killed Tong.

R. v. Strathdee, [2020] A.J. No. 1357, Alberta Court of Appeal, C.A. Fraser C.J.A., J. Watson and D. Pentelechuk JJ.A., December 9, 2020. Digest No. TLD-January252021005