R. v. Kirkness

R. v. Kirkness
Collection
Supreme Court Judgments
Date
1990-11-22
Report
[1990] 3 SCR 74
Case number
21720
Judges
Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Manitoba
Subjects
Criminal law
Notes
SCC Case Information: 21720
Decision Content
R. v. Kirkness, [1990] 3 S.C.R. 74
Mark Walter Kirkness Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. kirkness
File No.: 21720.
1990: May 3; 1990: November 22.
Present: Lamer C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for manitoba
Criminal law ‑‑ Homicide ‑‑ Single transaction principle ‑‑ Principle derived from first degree murder classification ‑‑ Whether or not single transaction principle extends to manslaughter ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 214(5).
Criminal law ‑‑ Attempts ‑‑ Party to offence ‑‑ Common intent ‑‑ Agreement to break and enter ‑‑ One party sexually assaulting and murdering victim ‑‑ Accused asking companion not to strangle victim but otherwise not preventing or dissociating self ‑‑ Whether or not accused aiding and abetting crime of manslaughter ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 21(1), (2).
Appellant and a friend, Snowbird, had been drinking when they agreed to break into a house at Snowbird's suggestion. Appellant entered through a window with a garden tool handle, let Snowbird in through the door and gave the broken handle to Snowbird as a weapon. Snowbird sexually assaulted and killed the eighty‑three year old woman who lived there. Appellant was told to leave the room when the assault began and remained across the hall while the assault was occurring. He placed a chair against the outside door of the house and occupied himself with stealing various things from the house. Snowbird dragged his unconscious victim into the hallway and began to choke her. Appellant asked him "not to do that because he (Snowbird) was going to kill her." Snowbird then suffocated the victim.
The trial judge set out two options to the jury: either they could find both Snowbird and appellant guilty of murder or the lesser included offence of manslaughter or alternatively they could find that the death occurred because of suffocation at the hands of Snowbird. He did not charge the jury on s. 214(5) of the Criminal Code .
Snowbird was convicted of first degree murder. Appellant was acquitted but the Court of Appeal set aside the verdict and directed a new trial on the charge of manslaughter.
At issue here were: (1) whether or not it was appropriate to apply the "single transaction" principle derived from the first degree murder classification in s. 214(5) to support an order for a retrial on a charge of manslaughter; and (2) whether or not the trial judge adequately charged the jury on the issue of party liability as it related to accused's liability in the homicide and the application of s. 21 of the Code.
Held (Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier and Cory JJ.: The single transaction analysis should be limited to those cases of murder classified as being either in the first or second degree under s. 214(5) . To establish a single transaction analysis, the Crown must first establish that the accused committed the underlying offence and that he or she also committed the murder. Similarly for party offences, the Crown must first establish that the accused was a party to both offences. It is only when this has been accomplished that the court may then consider whether the two offences were sufficiently closely connected in time to allow the murder to be classified as first degree. Manslaughter, however, is not classified as to category and can apply to a very broad range of circumstances. The single transaction analysis, therefore, could not be used to direct a new trial on a charge of manslaughter. Given the nature of the charge, the options left with the jury and Snowbird's conviction of first degree murder, appellant could not be part of a "single transaction" which resulted in the victim's death.
Appellant could only be implicated as a party to the sexual assault through the operation of s. 21 of the Code. The person aiding or abetting the crime must intend that death ensue or intend that he or the perpetrator cause bodily harm likely to result in death and be reckless whether death ensues or not. If the intent of the aiding party is insufficient to support a murder conviction, then that party might still be convicted of manslaughter if the unlawful act which was aided or abetted is one he or she knows is likely to cause some harm short of death. Neither intent was demonstrated by the appellant in the present case.
Appellant, when he formed an intent in common with Snowbird to carry out the break and enter, did not know before entering that Snowbird would either commit a sexual assault or kill the victim. Appellant was not a party to the suffocation and, indeed, put Snowbird on "timely notice" that he was acting on his own. The single transaction principle was not applicable absent evidence linking appellant to the suffocation.
The trial judge adequately instructed the jury as to the offences (including manslaughter), the law pertaining to parties to offences and the evidence implicating the appellant in relation to the applicable law. A verdict of manslaughter was only open to the jury if the appellant was found to be a party to the sexual assault and the death was found to be a result of the sexual assault. The possibility of reaching such a verdict was not withdrawn from the jury.
Per Wilson and L'Heureux‑Dubé JJ. (dissenting): The single transaction principle discussed in R. v. Paré had no application here. The issue is whether the trial judge properly instructed the jury regarding appellant's possible liability as a party to the homicide under s. 21 of the Criminal Code .
In the context of murder, a jury can find an accused guilty of the lesser included offence of manslaughter where that person aided or abetted a principal found guilty of murder. In crimes of personal violence, the mens rea for manslaughter will often be present in a party who has assisted. The possibility of convicting an accessory for manslaughter as opposed to murder should have been explained to the jury in this case.
The mental element of the offence of aiding and abetting in the commission of a criminal offence is doing an act for the purpose of assisting the principal in the commission of the offence. In the context of party liability the essential elements of the offence take a somewhat different form from that taken in the case of principal offenders because a party's acts and intent must be examined in relation to those of the principal. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement. Distinguishing between acts amounting to "mere acquiescence" and acts amounting to "encouragement", however, is often difficult. An aider or abettor must possess the necessary state of mind and evidence must support an inference that the accused had prior knowledge of the anticipated crime and that it was substantially similar to the actual crime.
The accused neither aided nor abetted this murder because he did not have the specific intent to assist in bringing about the death of the victim. His liability for the victim's death turned solely upon whether he aided or abetted the sexual assault of this woman. The evidence supports such a finding. His actions amounted to more than "mere acquiescence"; they were akin to those of a "look‑out" and therefore could be considered as assisting and encouraging Snowbird in the commission of the sexual assault which he knew was taking place.
The crime committed by Snowbird was of a similar type to that which the accused believed he was aiding and abetting. It may be somewhat artificial to draw a sharp line between the act of sexual assault and the act of suffocation where the violence inherent in the sexual assault escalated in a maniacal way to the violence accompanying suffocation. The sexual assault and the suffocation are offences of the same type in the sense that together they combine to form the offences proscribed by either s. 246.2 or s. 246.3 of the Code. Moreover, they are offences which could cause bodily harm short of death. Even if the appellant intended only to assist in the commission of a sexual assault simpliciter, it would be open to the jury to find that in law he aided and abetted a crime of a type involving personal violence and hence a risk of bodily harm short of death.
The common intent rule (codified in s. 21(2)) was specifically designed to determine liability in situations such as the present. First the accused must be shown to have formed an intention in common with others to carry out an unlawful purpose and to assist them in achieving that purpose. This common intention is usually implied from the facts. It need not be pre‑planned in any way and may arise just prior to or at the time of the commission of the offence. Here, the initial common purpose of the appellant and Snowbird was to break and enter.
The nature of the common purpose is often determinative of whether an accused will be held responsible for the principal's subsequent acts. The propensity for violence of each or any of the common intenders is relevant to a determination of the extent of the common purpose. There was evidence here that resort to violence might occur in carrying out the common purpose.
If the jury found that the common purpose encompassed only the breaking and entering it might be hard to justify a finding that the death of the occupant was a probable consequence of that purpose. If, however, the jury determined that the common purpose also encompassed acts of physical violence against the occupant, then the route to party liability is much clearer. Violence so often accompanies sexual crimes that the probability of harm short of death is implicit, especially when the common purpose contemplates physical interference with a person. There may, of course, be situations where the level of physical violence contemplated is so minimal, even in some assaults of a sexual nature, that serious bodily harm is merely a possibility rather than a probability. The question of whether the causing of bodily harm short of death was a probable consequence of the sexual offence was for the jury to decide.
An accused may be absolved of criminal liability for the acts of the principal if he can show that he abandoned his purpose to assist in the commission of a criminal offence. The standard varies in relation to the accused's degree of participation in the crime. The central consideration relates to the quality of the withdrawal in relation to both the offence and the type of criminal participation in which the party has engaged. The trial judge also erred in failing to explain the abandonment defence to the jury.
The trial judge did not adequately instruct the jury with regard to the possibility of convicting the appellant of manslaughter. The charge was confusing and it was erroneous and misleading with respect to the application of the common intent section. By posing the question in terms of whether the sexual assault caused the death, he improperly implied that if appellant did not directly assist in the act of suffocation he could not be held responsible for the victim's death. The question for the jury, however, was not whether the sexual assault caused the death but rather whether appellant aided or abetted Snowbird in a crime which was of the type which could have caused bodily harm or whether bodily harm could have resulted as a consequence of carrying out the sexual assault. This point of fundamental importance was lost on the jury because of the trial judge's misdirection.
Cases Cited
By Cory J.
Distinguished: R. v. Paré, [1987] 2 S.C.R. 618; referred to: R. v. Stevens (1984), 11 C.C.C. (3d) 518; R. v. Whitehouse, [1941] 1 D.L.R. 683; Miller v. The Queen, [1977] 2 S.C.R. 680.
By Wilson J. (dissenting)
R. v. Paré, [1987] 2 S.C.R. 618; R. v. Kent, Sinclair and Gode (1986), 40 Man. R. (2d) 160; R. v. Hartford and Frigon (1979), 51 C.C.C. (2d) 462; R. v. Trudeau and Toulouse (1985), 12 O.A.C. 189; Murray v. The Queen, [1962] Tas. S.R. 170; Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881; R. v. Cunningham (1937), 68 C.C.C. 176; R. v. Lloyd (1890), 19 O.R. 352; R. v. Black, [1970] 4 C.C.C. 251; R. v. Cosgrove (1975), 29 C.C.C. (2d) 169; R. v. Clarkson, [1971] 3 All E.R. 344; R. v. Salajko (1970), 9 C.R.N.S. 145; R. v. Yanover and Gerol (1985), 20 C.C.C. (3d) 300; Director of Public Prosecutions for Northern Ireland v. Maxwell, [1978] 1 W.L.R. 1350; R. v. Stevenson (1984), 11 C.C.C. (3d) 443; Lord Dacre's Case (1543), 1 Hale H.P.C. 439; Plummer's Case, Kel J. 109, 84 E.R. 1103; R. v. Rice (1902), 5 C.C.C. 509, leave to appeal refused (1902), 5 C.C.C. 529; R. v. Govedarov, Popovic and Askov (1974), 16 C.C.C. (2d) 238; R. v. Viger (1985), 36 C.C.C. (3d) 18; Henderson v. The King, [1948] S.C.R. 226; Rex v. Whitehouse (1940), 55 B.C.R. 420; Miller v. The Queen, [1977] 2 S.C.R. 680; R. v. Becerra and Cooper (1975), 62 Cr. App. R. 212; R. v. Simpson, [1988] 1 S.C.R. 3.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 212, 214(5) (rep. & sub. S.C. 1980-81-82-83, c. 125, s. 16; am. S.C. 1985, c. 19, s. 41(2) (item 3)), 246.1, 246.2, 246.3.
Authors Cited
Foster, Sir Michael. Foster's Crown Law. London: 1809.
Gillies, Peter. Criminal Law. Sydney: Law Book Co., 1985.
Hale, Sir Matthew. Historia Placitorum Coronae. The History of the Pleas of the Crown, vol. 1. London: Nutt & Gosling, 1736.
Lanham, David. "Accomplices and Withdrawal" (1981), 97 L.Q. Rev. 575.
Manson, A. "Re‑codifying Attempts, Parties, and Abandoned Intentions" (1989), 14 Queen's L.J. 85.
Rose, V. Gordon. Parties To An Offence. Toronto: Carswells, 1982.
Stuart, Don. Canadian Criminal Law: A Treatise. Toronto: Carswells, 1982.
Wasik, Martin. "Abandoning Criminal Intent", [1980] Crim. L. Rev. 785.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
APPEAL from a judgment of the Manitoba Court of Appeal (1989), 61 Man. R. (2d) 167, 51 C.C.C. (3d) 444, setting aside an acquittal by Scollin J. sitting with jury. Appeal allowed, Wilson and L'Heureux‑Dubé JJ. dissenting.
Timothy J. Preston, for the appellant.
Stuart J. Whitley, Q.C., for the respondent.
//Cory J.//
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier and Cory JJ. was delivered by
CORY J. -- Two questions must be answered in order to dispose of this appeal. First, is it appropriate to apply the "single transaction" principle derived from the first degree murder classification appearing in s. 214(5) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C-46, s. 231(5) ) to support an order for a retrial on a charge of manslaughter? Second, did the trial judge, by his instructions, withdraw from the jury the possibility of a verdict of manslaughter?
Factual Background
The appellant and his friend, Alexander Snowbird, came from God's Lake Narrows. On December 31, 1987 they were in Winnipeg. That evening they went to a number of bars and undoubtedly drank a good deal. In the early morning hours of New Year's Day, Snowbird took the appellant to the alley behind the residence of Elizabeth Johnson and suggested that they break into her house. The appellant readily agreed. They opened a window through which the appellant entered and opened the back door for Snowbird.
Elizabeth Johnson was a slight, frail woman of eighty-three years. She was asleep in her bed when the two men broke into her house. Snowbird saw her. He went into her bedroom, removed her clothes and sexually assaulted her. The appellant, on the instructions of Snowbird, remained outside. He sat in a chair in the hallway on the other side of the bedroom door for some time and otherwise occupied himself by stealing various things from the house. The appellant also placed a chair against the front door of the house while Snowbird was in the bedroom sexually assaulting Mrs. Johnson. In the long and detailed statement which the appellant gave to the police he explained that he had taken this action because he thought someone might come into the residence while he and Snowbird were there.
Subsequent to the sexual assault, Alexander Snowbird dragged Elizabeth Johnson from the bedroom into the hallway where, according to the appellant, she "just laid there". The appellant then entered the bedroom and there proceeded to steal various items. Upon leaving the bedroom, the appellant saw Snowbird begin to choke the victim. The appellant told Snowbird "not to do that because he (Snowbird) was going to kill her." According to the appellant, Snowbird then placed a plastic bag over the head of Elizabeth Johnson, dragged her into the bathroom, dumped her into the bathtub and turned on the hot water.
In all of his statements to the police the appellant denied ever touching Elizabeth Johnson or that he had participated in either the sexual assault, the choking or the suffocation of the victim.
The pathologist stated that in his opinion death was due to suffocation. There was no physical or forensic evidence which linked the appellant to either the sexual assault or the suffocation of the victim. The sole physical evidence against the appellant was a smear of blood on his underwear pants. He confirmed that they were the same ones he had been wearing at the time of the break and enter. However, he stated that a day or so after breaking into the Johnson house, he had been involved in a fight and beaten to such an extent that he was hospitalized two days before his arrest. As well, it must be noted that the blood smear could not be typed or even identified as human blood.
Both the appellant and Snowbird were charged with first degree murder. Snowbird was convicted of that crime while the appellant was acquitted.
Some Comments Upon the Factual Background
The facts of this case are depressing and sordid in the extreme. Their simple recitation incites feelings of anger and utter revulsion. That sense of disgust is bound to strengthen the very natural tendency to closely associate the appellant with the perpetrator of this particularly despicable crime. The almost inevitable result is to think that the appellant must be guilty because of his association with Snowbird. Nevertheless, principles of criminal law and fairness require that the guilt or innocence of Kirkness be determined solely on the evidence which implicates him in the killing of the victim. Both the despicable and the personable are entitled to be judged guilty or innocent solely on the basis of the evidence relating to the crime with which they are charged.
It must be remembered that the twelve members of the jury heard all the evidence and were for several days immersed in this tale of brutish violence and cruel insensitivity. Indeed, they were complimented by counsel for the Crown for the careful attention that they had given to all the witnesses throughout the trial. They listened to and obviously assessed the lengthy and detailed statement given by Kirkness to the police. At the conclusion of the trial, the jury, acting as judges of the facts, acquitted the appellant. They reached this decision as representatives of their community, no doubt carrying with them all of that community's natural sympathy for a frail, helpless, elderly lady brutally murdered in her own home. The verdict of the jury constitutes, in a very real way, the verdict of the community. Trial by jury in criminal cases is a process that functions exceedingly well and constitutes a fundamentally important aspect of our democratic society. It is not members of the judiciary, but rather the members of the jury, sitting as members of the community, who make the decision as to guilt or innocence which is so vitally important both to the individual accused and the community.
The jury in this case was obviously of the view that the evidence did not satisfy them beyond a reasonable doubt that the appellant was guilty of murder or manslaughter. It was uniquely and properly the function of the jury to reach such a conclusion based upon all the evidence which they heard. There is no suggestion that relevant evidence was improperly excluded or that irrelevant evidence was improperly admitted. It follows that only if there was a significant error made by the trial judge in the course of the charge should the jury's verdict of acquittal be set aside.
Decision of the Court of Appeal (1989), 61 Man. R. (2d) 167
The Court of Appeal set aside the verdict of acquittal and directed a new trial of the appellant on the charge of manslaughter. There were two bases for the decision expressed by Monnin C.J.M., writing for the Court.
First, he was of the opinion that the appellant was clearly a party to the sexual assault of the victim. He observed that the appellant was aware that a sexual assault was taking place in the bedroom. By placing the chair against the front door, he assisted Snowbird in carrying out that assault with impunity and he was therefore a party to the sexual assault. He further stated that in his opinion the sexual assault could not be isolated from the other incidents and that it ultimately "resulted in the suffocation death of the victim". He wrote at p. 171:
The totality of the events during the whole episode leads inevitably to the conclusion that what started out as a break and enter ended in the killing of this lady. It is an entire sequence which cannot be broken down into components or into a half-dozen separate and distinct incidents or separate and different crimes.
He stated that he was applying the reasoning of this Court set out in R. v. Paré, [1987] 2 S.C.R. 618.
Secondly, the Court of Appeal concluded that the trial judge had removed from the jury the possibility of the verdict of manslaughter. Monnin C.J.M. expressed it in this way at p. 172:
In my view Scollin, J., erred in stating that if Kirkness "simply wandered around the place, stealing things and picking things out of fridges, or whatever he says he did, if you accept that is the story, then Kirkness is not responsible for any criminal act that is before you". Thus Scollin, J., withdrew from the jury the possibility of a verdict of manslaughter yet, under the circumstances of this case, manslaughter ought to have been seriously considered by the jury.
However, Monnin C.J.M. also noted that manslaughter was the only offence open to the jury because of the intoxicated state of the appellant. Therefore, he set aside the verdict of acquittal and ordered a new trial solely on the charge of manslaughter.
Can the "Single Transaction" Principle be Applied to a Charge of Manslaughter?
In my view the principle expressed in R. v. Paré, supra, is simply not applicable to this case. In Paré, this Court dealt with a killing which had taken place shortly after a sexual assault had been completed. Wilson J., writing for the Court, had to determine whether s. 214(5) of the Criminal Code applied and particularly what effect the words "while committing" had in such a situation. That section reads as follows:
214. (1) Murder is first degree murder or second degree murder.
...
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(a) section 76.1 (hijacking an aircraft);
(b) section 246.1 (sexual assault);
(c) section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 246.3 (aggravated sexual assault);
(e) section 247 (kidnapping and forcible confinement); or
(f) section 247.1 (hostage taking).
She concluded that the words "while committing" did not require an exact coincidence of the murder with the underlying offence, but did require a close temporal and causative link between the two. She specifically adopted the reasoning of Martin J.A. in R. v. Stevens (1984), 11 C.C.C. (3d) 518 (Ont. C.A.), where he stated at p. 541:
Thus, it appears clear that where death is caused after the underlying offence is complete and the act causing death is committed for the purpose of facilitating the flight of the offender, the murder is not under ss. 213 and 214(5) (b) first degree murder.
I do not wish, however, to be taken as holding that where the act causing death and the acts constituting the rape, attempted rape, indecent assault or an attempt to commit indecent assault, as the case may be, all form part of one continuous sequence of events forming a single transaction, that death would not be caused during the commission of the offence, even though the underlying offence in s. 213 in a sense could be said to be then complete.
Wilson J. went on to observe that the effect of the reasoning expressed in Stevens is to eliminate the need to draw artificial lines separating the commission and the aftermath of an indecent assault. As well, it would eliminate the arbitrariness inherent in an exactly simultaneous approach to the interpretation of the words "while committing".
She explained her interpretation of the words "while committing" as comprising a single ongoing transaction based upon the continuing domination of the victim which inevitably occurs in cases of rape, attempted rape, indecent assault or an attempt to commit an indecent assault. She noted that the ensuing murder represented the ultimate exploitation of the position of power created by the underlying crime and thus made the entire course of conduct a "single transaction". She concluded that it was due to this continuing exploitation of power that, for policy reasons, Parliament had decided to classify murder which occurs "while committing" these acts as first degree murder.
I believe that the single transaction analysis should be limited to those cases of murder where by the provisions of s. 214(5) murder is classified as being in either the first or second degree. With respect, the Court of Appeal of Manitoba erred in using such an analysis for the purpose of directing a new trial on a charge of manslaughter. There is no classification of manslaughter contained in the Criminal Code . Whenever the death of one human being results from the unlawful act of another, it can constitute the crime of manslaughter. The charge can be applicable to a very broad range of circumstances, in almost all of which the consideration of the single transaction would not be applicable. In contrast, s. 214(5) represents a policy decision to classify murder in some specified situations as being of the first degree.
The decision in Paré reflects and clarifies that policy decision by concluding that where death ensues as part of a single ongoing transaction in the course of committing crimes involving domination, it will be considered to be first degree murder. The single transaction analysis utilized in Paré requires that the Crown first establish that the accused committed the underlying offence and that he or she also committed the murder. Similarly for party offences, the Crown must first establish that the accused was a party to both offences before s. 214(5) could be applied. It is only when this has been accomplished that the court may then consider whether the two offences were sufficiently closely connected in time to allow the murder to be classified as first degree. This approach cannot be utilized in the context of manslaughter because there is no classification of that offence contained in the Code. It follows that the Paré analysis should be restricted to the classification of murder.
Was it Possible for the Transaction Approach to be Taken in This Case?
In the case at bar, the trial judge did not charge the jury with regard to s. 214(5) . Rather, he instructed them that they had two options. First, they could find that the death had occurred as part or as a result of the sexual assault. He stated that if this were their conclusion, it was open to them to find that both Snowbird and the appellant were guilty of murder or at least manslaughter. Alternatively, he told the jury that they could find that the death had occurred due to suffocation at the hands of Snowbird. However, in either case the murder could only be first degree if the jury was satisfied that there had been some degree of planning and deliberation.
It was on the basis of these instructions that Snowbird was convicted of first degree murder and the appellant was acquitted. The jury must thus have been satisfied beyond a reasonable doubt that the murder was planned and deliberate, since that was the only route left open to them upon which to find first degree murder. More importantly, the jury must have concluded that the death resulted from the subsequent act of suffocation, and not from the sexual assault. If they had concluded that death resulted from the sexual assault and that Kirkness was a party to it, they would have been compelled to find him guilty of murder or at least manslaughter in light of the directions given to them on this issue. Based on the verdict of the jury, Kirkness cannot therefore be deemed to be part of a "single transaction" which resulted in the death of Mrs. Johnson.
Kirkness could only be implicated, pursuant to the provisions of s. 21 of the Code, as a party to the sexual assault. He was not the prime mover in the crime. He neither sexually assaulted, strangled nor suffocated the victim. In the case of an accused who aids or abets in the killing of another, the requisite intent that the aider or abettor must have in order to warrant a conviction for murder must be the same as that required of the person who actually does the killing. That is to say, the person aiding or abetting the crime must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not. If the intent of the aiding party is insufficient to support a conviction for murder, then that party might still be convicted of manslaughter if the unlawful act which was aided or abetted is one he or she knows is likely to cause some harm short of death. Neither intent was demonstrated by the appellant in the present case. I would observe that the constitutional issue as to whether there is a minimal mind set or intention necessary for the crime of manslaughter was not raised in this appeal.
Nor can it be said that the appellant, who had formed an intent in common with Snowbird to carry out the unlawful purpose of breaking and entering, knew before entering that Snowbird would either commit a sexual assault or kill the victim. It will be recalled that in this case the only evidence against the appellant was that contained in his statement that he placed a chair against the front door knowing that a sexual assault was taking place in the bedroom. There is no indication that he knew that death or bodily harm short of death might result from the sexual assault. He did not enter into the bedroom. Indeed, it appears that the bedroom door was closed for some period of time so that he could not be aware of everything that was taking place. Further, it is apparent from the verdict of the jury, which was obviously based upon the expert's testimony, that the bodily harm causing death resulted from suffocation. The strangulation and suffocation of the victim occurred after the sexual assault.
There is no evidence that the appellant was a party to the suffocation of Elizabeth Johnson. Rather, he told Snowbird not to strangle the victim as he was going to kill her. His statement makes it clear that he was not aiding or abetting Snowbird in the strangulation or suffocation of Mrs. Johnson. These words of the appellant constituted "timely notice" to Snowbird that he was, from that point on, acting on his own and that the appellant was not a party to the strangulation and suffocation. See R. v. Whitehouse, [1941] 1 D.L.R. 683 (B.C.C.A.), quoted with approval in Miller v. The Queen, [1977] 2 S.C.R. 680. Thus in those misdeeds Snowbird was acting on his own. It is therefore apparent that even if the appellant could be considered a party to the sexual assault, by the time of the attempted strangulation he had clearly resiled from any agreement or arrangement with Snowbird and was not a party to the suffocation of the victim.
The single transaction principle is simply not applicable on the facts of this case since there is no evidence linking the appellant to the suffocation. The evidence adduced provided a sound and reasonable basis for the jury's decision to acquit the appellant and there was no reason in law for the Court of Appeal to disturb that decision on that ground.
Did the Trial Judge Withdraw From the Jury the Possibility of a Verdict of Manslaughter?
The jury was, I believe, adequately instructed with regard to the possibility of convicting the appellant of manslaughter, although the charge in this case did not follow the usual pattern. The trial judge expressed the view that he did not wish to utilize what he referred to as the "boiler plate" in his instructions to the jury. Effective as that approach might be, it should be implemented carefully and with discretion. For example, in this case only at the conclusion of his charge and after being reminded by counsel did the trial judge instruct the jury as to the fundamental principle of the presumption of innocence. While that omission could only have benefitted the Crown, it serves to demonstrate that at least some carefully prepared check must be followed to ensure that all the essential principles are clearly set forth and that all the pertinent issues are addressed in a charge to the jury.
To determine the adequacy of the charge on the issue of manslaughter, it is necessary to once more consider the evidence. Again the appellant could only be found guilty of either murder or manslaughter if he was found to be a party to the sexual assault. The sole evidence which implicated him in the sexual assault was contained in the portion of his statement in which he said that he had placed a chair against the front door of the house when he knew Snowbird was assaulting the victim in her bedroom. I would observe that this action could have been taken as much to prevent the apprehension of the two accused while they stole articles from the house as to facilitate the sexual assault by Snowbird. Nonetheless, it was evidence upon which the jury could have found the appellant to be a party to murder or manslaughter as a result of being a party to the sexual assault if that assault had resulted in the death of the victim.
However, there was no evidence that the appellant knew or had any reason to believe that death was likely to result from the sexual assault. Nor did the death result from the sexual assault. Rather, as stated above, the jury must have found that the death occurred due to strangulation. There was no evidence that the appellant was a party to Snowbird's strangulation and suffocation of Mrs. Johnson. Once again, the only evidence was that of his statement in which he denied any participation in those acts. The fact that he told Snowbird to stop when he saw him strangling the victim indicates that if the appellant ever had been a party to any offences, from that point on he had removed himself from any joint enterprise with Snowbird that involved the killing of Mrs. Johnson.
As for the charge to the jury, the evidence presented at the trial made it important that the trial judge give instructions to the jury as to the law pertaining to parties to offences. He also had to instruct the jury on the evidence implicating the appellant, which was his statement, and relate it to the applicable law. In my view the charge was adequate in these aspects. It is significant that neither at trial nor on appeal did the Crown take objection to the directions given as to the law pertaining to parties or the references to the evidence that was applicable to that issue. The trial judge stated:
Now, reference has been made to a section of the Code by Mr. Preston which I will deal with in a few moments, dealing with common intention and dealing with aiding and so on. You may but you are not obliged to accept Kirkness's version given to the police. You may consider that it has got a reasonable ring of truth to it; it was given voluntarily, without a lawyer being there; it fits a lot of the facts that are known: but you are not bound to accept it.
...
The offence here is the sexual assault and the murder. The one that is charged here is the murder. If each of them knew or ought to have known that the commission of the offence of murder would be a probable consequence of carrying out the common purpose, each of them is a full party to the offence.
I am not suggesting that this is a proper case for that. It is up to you to determine what the state of mind was when the assistance was given. Was the assistance by way of blocking the front door? Was that given, for example, in order to enable the sexual act to continue? If it was, then it only makes Kirkness a party if the result or the likely result was known or was within his contemplation, and that is that the sexual assault would result or was likely to result in death. If that was not the case, then the aiding, by placing that chair -- if that is what you find it was -- is related to the sexual assault and not to the murder. [Emphasis in original.]
The trial judge thus properly instructed the jury as to the law pertaining to parties and the provisions of s. 21 .
Turning specifically to the instructions on manslaughter, the trial judge read to the jury the provisions of s. 212(a)(i) and (ii). He stated:
For convenience, I will call that second element life-threatening harm.
This requirement, set out in Section 212, constitutes the intent necessary to make culpable homicide murder. Unless the person who does the fatal act has that intent, that is, either means to cause the death or means to cause harm of that sort I have described to you and does not care whether death ensues or not, unless the person has that intent in doing the act, the act may be unlawful, death may ensue but the act will not be murder, it will be manslaughter. [Emphasis added.]
This was the first reference to manslaughter and no fault could be found with it. The trial judge then went on to define murder as first degree "when it is planned and deliberate", and gave proper definitions of the words "planned" and "deliberate".
Later he referred to manslaughter again in these words:
In the case of each accused, you may, of course, acquit the accused entirely and the fact that there was a break and enter and sexual assault, if one of the accused did not participate in it, then you would acquit him. You might find, if you found he participated in the unlawful act but without the necessary intent and without the planning and deliberation, and you then convict him of manslaughter. If an accused, one of the accused -- applied to each separately -- intentionally killed the woman, then second degree murder. If, in addition to intentionally killing the woman, he had planned and deliberated the method, the mode in carrying out the killing, then you convict of first degree murder. You have got these separate, alternative verdicts in respect of each of the two accused. [Emphasis added.]
In response to a question from the