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CRIMINAL PROCEDURE - Trials - Motions - Directed verdict

Thursday, December 14, 2017 @ 8:57 AM  


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Appeal by the Crown from a directed verdict acquitting the accused, Kelly, of manslaughter. Two armed men attempted to rob an underground poker tournament. A struggle ensued and shots were fired. The robbers fled on foot. One individual involved in the struggle died from a gunshot wound. An eyewitness saw two men run from the scene and leave in a Honda Civic. One man carried a gun. The Crown alleged that the accused was the getaway driver of the Honda. Approximately 25 minutes after the shooting, one of the perpetrators sought medical treatment for a gunshot wound. Forensic examination of a Honda rented by the accused linked the wounded perpetrator's blood to the vehicle. A cell phone linked to the accused was also linked to the robbery scene on the day before the shooting and the day of the shooting, an inside man involved in the robbery, and the hospital that provided medical treatment to a perpetrator. The accused was tried by a judge sitting with a jury. At the close of the Crown's case, the defence applied for a directed verdict. They submitted that the eyewitness evidence precluded any finding that the accused was the driver of the getaway vehicle, and that there was no other theory of liability involving the accused advanced at trial. The trial judge instructed the jury to enter an acquittal. The Crown appealed.

HELD: Appeal allowed. The trial judge erred in approaching the directed verdict analysis by considering which inferences could be drawn from the eyewitness testimony as opposed to the totality of the evidence. Based on an application of the proper legal test for a directed verdict, the trial judge should not have directed a verdict of acquittal. The trial judge improperly restricted the Crown to a theory of liability flowing from the accused's role as a getaway driver. Even if the trial judge correctly limited the Crown to the argument that the accused was the getaway driver, potential party liability for manslaughter flowed from s. 21(2) of the Criminal Code based on common unlawful purpose related to the accused's involvement in a robbery plan and any crimes committed in the course of carrying it out. Liability under s. 21(2) did not turn on the specific role the accused played in the robbery plan. There was ample evidence upon which a reasonable jury could find the accused formed a common intention to rob the poker tournament. The acquittal was set aside and a new trial was ordered.

R. v. Kelly, [2017] O.J. No. 6203, Ontario Court of Appeal, G.R. Strathy C.J.O., D.H. Doherty J.A. and J.D. McCombs J. (ad hoc), November 29, 2017. Digest No. TLD-December112017008