R v Napope, 2022 SKCA 61

Court of Appeal for Saskatchewan Docket: CACR3050 Citation: R v Napope, 2022 SKCA 61Date: 2022-05-18 Between:Keith Clarence NapopeAppellantAndHer Majesty the QueenRespondentBefore: Ottenbreit, Barrington-Foote and Tholl JJ.A.Disposition: Conviction appeal dismissed; application for leave to appeal sentence allowed; sentence appealdismissedWritten reasons by: The Honourable Mr. Justice Barrington-FooteIn concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice ThollOn remand from: (SCC)Written submissions filed: August 2021Counsel: Brian Pfefferle and Amy Kolenick for the Appellant W.

Dean Sinclair, Q.C., for the Respondent Barrington-Foote J.A. I. INTRODUCTION [1] On September 28, 2017, Keith Napope was found guilty of robbery and not guilty of manslaughter by a jury. Both chargesresulted from a forcible home invasion by four men. The victim, Johnathon Keenatch, died as a result of knife wounds inflicted in thecourse of the robbery. [2] Mr. Napope appealed his conviction. He contended that the verdict of guilty of robbery was inconsistent with the verdict ofacquittal for manslaughter. This Court allowed Mr. Napope’s conviction appeal.

We concluded that the verdicts were inconsistent, as aproperly instructed jury could not reasonably find Mr. Napope guilty of the robbery and not guilty of manslaughter: R v Napope, 2020SKCA 71, 389 CCC (3d) 148 [Decision]. For that reason, we found that the conviction for robbery was unreasonable. The Crown had notappealed the acquittal on the manslaughter charge.

We accordingly directed a verdict of acquittal on the robbery charge. [3] The Crown appealed the Decision to the Supreme Court of Canada, which directed that this matter be remanded to this Courtfor disposition in accordance with the decision in R v R.V., 2021 SCC 10, 402 CCC (3d) 295 [R.V.] [remand order].

Having reconsideredthe appeal in light of the guidance provided by R.V. in relation to the reconciliation of apparently inconsistent verdicts which result fromlegal errors in jury instructions, I have concluded that these apparently inconsistent verdicts can be reconciled, despite the fact that theCrown did not appeal the verdict of acquittal on the manslaughter charge. [4] Mr. Napope also sought leave to appeal his sentence pursuant to s. 675(1)(

b) of the Criminal Code. I would allow hisapplication for leave but dismiss his sentence appeal. [5] My reasons for these conclusions follow. II. BACKGROUND A. The Decision [6] The issues dealt with in this judgment relate to the rule against inconsistent verdicts, which Fish J. described in R v J.F., 2008SCC 60 at para 14, [2008] 3 SCR 215 [J.F.], as “a conceptually distinct rule that precludes a conviction on one charge which cannot bereasonably reconciled with an acquittal on the other” (emphasis in original).

The Crown’s written and oral submissions as to theapplication of this rule prior to the Decision rested on two key propositions. First, it was the Crown’s position that because the essentialelements of robbery and manslaughter are different, it was not possible to demonstrate that the verdicts are inconsistent. [7] Second, the Crown argued that there was no inconsistency in these verdicts, as the apparent inconsistency was the result ofjury instructions that were “plainly deficient and contrary to law”.

In the Crown’s view, the question to be determined on an appeal of thiskind was not whether a properly instructed jury could have reached the allegedly inconsistent verdicts, but whether the verdicts weresupportable on any theory of the evidence consistent with the actual instructions given to the jury by the trial judge. [8] The Crown alleged that there were many deficiencies in the actual instructions given to the jury that explained the acquittalfor manslaughter.

It asserted that the instructions would have led the jury to incorrectly conclude that there could be only one principaloffender, being the person who inflicted the fatal stab wound. It claimed that the failure to instruct the jury that Mr. Napope could be theprincipal offender even if he did not inflict that injury hopelessly prejudiced the Crown’s case.

[9] The Crown also pointed to several errors in the instructions to the mens rea for unlawful act manslaughter. It noted that toprove manslaughter, the Crown must prove the actus reus and mens rea associated with the underlying unlawful act which causes death,and, in addition, must prove that a reasonable person would foresee the risk of bodily harm as a result of the unlawful act. It stressed thatthe Crown need not prove subjective foresight of the risk of bodily harm, the objective foreseeability or subjective foresight of a risk ofdeath, or that the accused intended that death occur.

Rather, it said that a person may be a party to the offence of manslaughter pursuant tos. 21(1) of the Criminal Code if they intentionally aid or abet the commission of an unlawful act which causes death, if a reasonableperson would have appreciated that bodily harm was a foreseeable consequence of the unlawful act.

Section 21 provides as follows: 21

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any oneof them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission ofthe offence would be a probable consequence of carrying out the common purpose is a party to that offence. [10] Based on this legal foundation, the Crown submitted that the trial judge erred by instructing the jury that if it did not find thatMr.

Napope was the person who wielded the knife, it could only convict for manslaughter if it found that he intentionally aided or abettedthe person who inflicted the fatal wound to commit manslaughter. The Crown also argued that the trial judge failed to instruct the jurythat it need not unanimously find that Mr. Napope was either a principal offender or an aider or abettor. Further, the Crown asserted thatthe trial judge repeatedly and incorrectly instructed the jury that to be liable as a common intent party pursuant to s. 21(2) of the Code, itmust conclude that Mr.

Napope knew or ought to have known that manslaughter would be a probable consequence of carrying out thecommon unlawful purpose. [11] Referring to all of these alleged errors as to mens rea, the Crown submitted that it was “little wonder the jury found theappellant not guilty of manslaughter”. [12] The Crown also alleged that there were other errors in the jury charge. It suggested that it was unnecessary and confusing toinstruct the jury that it should consider whether the robbery was the unlawful act that resulted in Mr. Keenatch’s death, as the onlyunlawful act which caused death was an assault.

According to the Crown, Mr. Napope’s liability for manslaughter related solely towhether he was a principal offender in a dangerous assault, or either aided in the commission of or encouraged the commission of adangerous assault. [13] Finally, the Crown argued that the jury instructions distracted the jury from the real issues, as identity was the only real issue inthis case.

In this context, it described the instructions to determine if the unlawful act was dangerous, and as to the essential elements ofthe offence of robbery, as “pedantic”. [14] In the Decision, we held that there were important errors of law in the jury instructions, particularly in the decision treesprovided by the trial judge for the two offences and his instructions relating to those decision trees.

We agreed with the Crown that therewere errors as to the meaning of “principal” and as to the mens rea for unlawful act manslaughter that may well have misled the jury,finding as follows: [10] …First, the trial judge gave erroneous instructions as to the proper meaning of the term “principal offender” that may have led thejury to believe that Mr. Napope could not be a principal offender in relation to the offence of manslaughter if he did not inflict the fatalinjury.

This error might well confuse the jury as to the real issue it had to decide. [11] Second, there were errors related to the mens rea required to prove unlawful act manslaughter.

To prove an offender guilty of thatoffence, the Crown must prove the actus reus and the mens rea of the underlying unlawful and dangerous offence – in this case, robberyor assault – together with the objective foreseeability of the risk of bodily harm in the context of the dangerous act that is neither trivial nortransitory: R v DeSousa, (SCC), [1992] 2 SCR 944 at 958–962; R v Jackson, (SCC), [1993] 4 SCR 573 at582–583; R v Javanmardi, 2019 SCC 54 at paras 24–31, 439 DLR (4th) 579.

There is no additional requirement to prove subjectiveforesight or the objective foreseeability of the risk of death. [12] Here, the trial judge’s erroneous instructions as to the mens rea required for manslaughter, in the context of his instructions as tothe application of the party provisions in s. 21 of the Criminal Code, may well have led the jury to conclude that the Crown had to provesubjective foresight or the objective foreseeability of the risk of death. … [15] However, we parted company with the Crown on the law relating to inconsistent verdicts in two respects.

We held that “thefact that offences have different elements does not mean that the conviction on one and an acquittal on the other cannot constituteinconsistent verdicts” (at para 33). In this context, we noted that in R v Pittiman, 2006 SCC 9, [2006] 1 SCR 381 [Pittiman], Charron J.commented as follows: [8] …[I]n the case of a single accused charged with multiple offences, different verdicts may be reconcilable on the basis that theoffences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses.

Thestrength of the evidence relating to each count may not be the same, leaving the jury with a reasonable doubt on one count but not on theother. On the other hand, when the evidence on one count is so wound up with the evidence on the other that it is not logically separable,inconsistent verdicts may be held to be unreasonable: e.g., see R. v. Tillekaratna (1998), (ON CA), 124 C.C.C. (3d) 549(Ont.

C.A.). [16] Second, we disagreed with the Crown’s submission that the issue on an appeal based on an allegation of inconsistent verdicts iswhether the verdicts are supportable on any theory of the evidence consistent with the actual jury instructions given by the trial judge.

Rather, we concluded as follows: [17] With respect, this question does not turn on the actual instructions given by the trial judge. When an appellate court decideswhether the verdict of a jury or the decision of a trial judge is unreasonable, the test is whether the verdict is one that a properly instructedjury acting judicially could have reasonably have rendered: R v Yebes, (SCC), [1987] 2 SCR 168; R v Biniaris, 2000 SCC15 at para 36, [2000] 1 SCR 381; R v Graham, 2019 SKCA 63 at para 105, [2019] 12 WWR 207.

That test is no less applicable to anappeal based on an allegation of inconsistent verdicts. [17] In support of this proposition, we relied on the reasoning in J.F. and in the Ontario Court of Appeal’s decision in R v R.V., 2019ONCA 664, 379 CCC (3d) 219 [R.V. CA], which was reversed in R.V. In J.F., Fish J. commented as follows: [23] As I have already made plain, I would not allow the appeal on the basis of what the Crown characterizes as an erroneousinstruction in law.

On an allegation by the Crown that the trial judge erred in this regard, the appropriate recourse would have been for theCrown to appeal the acquittal and not for this Court to uphold the conviction on another count. This is particularly true where, asmentioned earlier, Crown counsel expressly acqui​esced in the instruction now said to be erroneous. Finally, verdicts are deemedinconsistent — and therefore unreasonable as a matter of law — if no properly instructed jury could reasonably have returned them both:R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9.

Improper instructions do not make improper verdicts proper. Nor do they makeinconsistent verdicts consistent. (Emphasis in original) [18] In the result, we allowed Mr. Napope’s conviction appeal and directed a verdict of acquittal on the robbery charge,summarizing our reasons as follows: [38] …In the language of Pittiman, the evidence on the manslaughter charge was so wound up with the evidence on the robbery chargethat it was not logically separable. That is so based on the issues and evidence in this case, and despite the fact that the offences havedifferent elements. The issue was identity.

A properly instructed jury could not reasonably find Mr. Napope guilty of this patentlydangerous robbery – the predicate offence in relation to the charge of unlawful act manslaughter – and not guilty of manslaughter, as hemust also have been guilty of that offence. The verdicts are accordingly inconsistent and the conviction is unreasonable. III. THE REMAND ORDER AND THE DECISION INR.V. [19] As noted above, following an appeal by the Crown, the Supreme Court of Canada remanded this matter to this Court fordisposition in accordance with the decision in R.V.

The authority to make such an order is found in s. 43(1.1) of the Supreme Court Act,RSC 1985, c S-26, which is as follows:

(1.1) Notwithstanding subsection (1), the Court may, in its discretion, remand the whole or any part of the case to the court appealed fromor the court of original jurisdiction and order any further proceedings that would be just in the circumstances. [20] The remand order did not specify what issues this Court should reconsider in light of R.V. I will accordingly proceed in themanner specified in Input Capital Corp. v Gustafson, 2021 SKCA 56, 458 DLR (4th) 474, which dealt with a remand order to the sameeffect. That remand order was made on an application for leave to appeal.

There, the Court was directed to “dispose of the ‘case formingthe basis of the application for leave to appeal from the [Decision]...in accordance with [Heller]’” (at para 6). Input Capital was a claiminvolving the doctrine of unconscionability and, in Uber Technologies Inc. v Heller, 2020 SCC 16, 447 DLR (4th) 179, the Supreme Courtof Canada had reviewed and explained that doctrine.

The per curiam decision in Input Capital described the meaning of the remand orderas follows: [6] The Remand Order directs this Court to dispose of the “case forming the basis of the application for leave to appeal from the[Decision]…in accordance with [Heller]”. This does not entail revisiting issues that Heller does not address (Deslaurier Custom CabinetsInc. v 1728106 Ontario Inc., 2017 ONCA 293 at para 14, 410 DLR (4th) 14; Sankar v Bell Mobility Inc., 2017 ONCA 295 at para 9, 410DLR (4th) 1; R v Polches, 2008 NBCA 1 at para 20, 290 DLR (4th) 535).

By remanding the case in this way, the Supreme Court has notoverturned or vacated the Decision nor has it predetermined the outcome of the reconsideration undertaken in furtherance of the RemandOrder. Instead, the Supreme Court has directed this Court to reconsider the case that underpinned the Decision a second time, now havingthe benefit of its guidance on the law as set forth in Heller.

As to outcome, we may either affirm or vary the Decision. [21] In R.V., the offender had been convicted by a jury of sexual interference and invitation to sexual touching but acquitted ofsexual assault based on the same evidence. That decision was reversed by the Ontario Court of Appeal in R.V. CA, which concluded thatthe acquittal and convictions were inconsistent and therefore unreasonable.

Like this Court in the Decision, the majority was of the viewthat J.F. stood for the proposition that where the Crown does not appeal the acquittal on an appeal of this kind, the inconsistent verdictscannot be reconciled on the basis of legal error in the jury instructions. Chief Justice Strathy, writing for the Court in R.V.

CA, noted atparagraph 76 that Fish J. had made the following four points in J.F.: • if the Crown wants to respond to an inconsistent verdict argument by asserting that the acquittal was the result of a legal error in theinstructions for that offence, it must appeal the acquittal; • if the Crown fails to appeal the acquittal, and cannot otherwise reconcile the verdicts, they remain inconsistent because the inconsistencycannot be cured simply by asserting error of law in the acquittal; • the inconsistent verdict analysis is partially objective -- it asks whether, assuming it was properly instructed, a reasonable jury couldhave rendered the verdicts based on the evidence before it; and

• the preeminent policy considerations underlying the inconsistent verdict analysis are “legal process” and “the legitimacy of verdicts”. [22] Chief Justice Strathy explained what he understood Fish J. to mean when he referred (in J.F. at para 21) to “legal process” and“the legitimacy of verdicts”. As to legal process, he noted that the accused had appealed his convictions only on the ground that they were“unreasonable” under s. 686(1)(a), and not on the ground that the trial judge had erred in law by misdirecting the jury.

The Crown, on theother hand, could have appealed the acquittal on the basis of an error of law, but did not do so. It was his view that this engaged thefollowing legal process issue: [95] Since the appeal against conviction in F. (J.) was brought on the basis that the conviction was unreasonable, the question ofwhether the jury had been misdirected (i.e., whether the trial judge erred in law) was not at issue. That issue had to be raised either by theappellant as a separate ground of appeal, or by the Crown by way of an appeal against the acquittal.

Because the Crown did not appeal theacquittal in F. (J.), its attempt to raise the issue of misdirection was procedurally improper. This is what I believe Fish J. was referring towhen he used the phrase “legal process”. [23] As to the “legitimacy of verdicts” consideration, Strathy C.J.O. first affirmed that a not guilty verdict constituted a “declarationof legal innocence” for the purpose of subsequent criminal proceedings, and, thus, that “[t]he only way to properly challenge such adeclaration is through a formal Crown appeal. Otherwise, the acquittal, and its meaning, are final” (at para 96).

In his view, absent such anappeal, an attempt by the Crown to suggest the acquittal was the result of a legal error was an attempt to undermine the legitimacy of thenot guilty verdict without having gone through the proper process to do so. As he saw it, “[i]f jury verdicts are to be respected and viewedas legitimate, their meaning must be clear” (at para 96), and a new trial, absent an appeal of the acquittal, “would simply invite a repetitionof the very inconsistency that led to the quashing of the conviction on appeal” (at para 97).

Chief Justice Strathy cited paragraphs 39–41of J.F. in support of this analysis, where Fish J. made the same point, as follows: [41] The respondent’s acquittal was not appealed.

To order a new trial in these circumstances would deprive the respondent of thebenefit of that acquit​tal, now final, and expose him on the new trial to a finding that he did in fact commit the offence of which he wasacquitted, definitively, by the jury in this case. [24] In the result, the Ontario Court of Appeal ordered that acquittals be entered. [25] In R.V., Moldaver J.’s majority judgment offered a very different perspective on key aspects of the law relating to inconsistentverdicts. Justice Moldaver referred to the language used in Pittiman to describe the test.

However, he also restated that test, putting it in“another way” that distinguished the question of whether the verdicts could be reconciled from the question of whether a properlyinstructed jury could have rendered those verdicts: [29] In an appeal involving inconsistent verdicts, the applicable test to determine whether a verdict of a jury is unreasonable is: “Arethe verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence?”(Pittiman, at para. 10).

Put another way, a conviction is unreasonable and must be set aside where the verdicts cannot be reconciled on anyrational or logical basis and no properly instructed jury, acting reasonably, could have rendered the verdicts it did based on the evidence(R. v. McShannock (1980), (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56; Pittiman, at paras. 6-7). (Emphasis added) [26] Justice Moldaver concluded that where both of these conditions have been met, “the only available inference is that the juryacted unreasonably in arriving at the conviction” and appellate intervention is warranted (at para 30).

However, he went on to say that“[i]f verdicts are reconciled to reveal a theory on which the jury could have returned the verdicts without acting unreasonably, the verdictsare consistent and appellate intervention is not warranted” (at para 31).

Importantly, he then found that apparently inconsistent verdictscould be reconciled not only as a result of temporal differences, qualitative differences, or different evidence, but “on the basis that theywere the result of a legal error in the jury instructions” (at para 32). [27] This approach to reconciling apparently inconsistent verdicts requires that the reviewing court attempt to determine why thejury reached inconsistent results. A reviewing court cannot be certain of the answer; that is so due to the jury’s role as the triers of fact andjury secrecy.

Justice Moldaver dealt with that risk by adopting the following analytical framework: [33] Where the Crown attempts to rebut an apparent inconsistency on the basis of a legal error, the burden shifts from the accused tothe Crown. That burden is heavy.

The Crown must satisfy the court to a high degree of certainty that there was a legal error in the juryinstructions and that the error: (1) had a material bearing on the acquittal; (2) was immaterial to the conviction; and (3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct. [34] If the court can find that these elements are satisfied with a high degree of certainty, the verdicts are not actually inconsistent.Instead, the legal error caused the jury to convict the accused either on different evidence or a different element than it believed wasnecessary for the charge on which it acquitted the accused.

Any apparent inconsistency in the verdicts is thus reconciled, as the jury didnot find the accused both guilty and not guilty of the same conduct. It follows that the jury did not act unreasonably in rendering theirverdicts. [28] Having adopted this framework, Moldaver J. emphasized the stringency of the test: [35] In assessing whether the Crown has satisfied its burden, the court must not engage in improper speculation about what the jury didand did not do.

The appellate court must be able to retrace the reasoning of the jury with a sufficiently high degree of certainty to excludeall other reasonable explanations for how the jury rendered its verdicts. If it can, any concern about speculation falls away.

(Emphasis added) [ 29 ] On the facts in R.V. , Moldaver J. found that the test was satisfied. He also concluded that when the Crown successfully appeals an acquittal on this basis, an appellate court has the authority in certain cases to order a stay of the charge underpinning the acquittal, rather than sending both charges back for a retrial. In the result, he ordered a stay of the sexual assault charge, having concluded that a retrial would needlessly risk an abuse of process application and would bring no benefit to the administration of justice.

He declined to answer the question of whether the Crown must cross-appeal where it seeks to reconcile inconsistent verdicts in this fashion. IV. POSITIONS OF THE PARTIES ON REMAND AND DEFINING THE ISSUES A. Mr. Napope’s remand submissions [ 30 ] Mr. Napope and the Crown were invited to make further written submissions before we reconsidered the Decision. Both filed supplementary factums [remand submissions]. [ 31 ] Mr.

Napope noted in his remand submissions that, in the Decision, this Court found it would have been impossible for the jury to find that the accused had the subjective mens rea to commit this dangerous robbery without objective foresight of bodily harm. He submitted that because the only thing that separated the robbery from the manslaughter was the objective foreseeability of the risk of bodily harm that was neither trivial nor transitory, in the context of the dangerous act, the jury had come to an unjustifiable compromise. [ 32 ] Mr.

Napope stressed that an appellate court should act cautiously in reaching conclusions about what transpired behind the closed doors of the jury room and in fashioning remedies when it does so. In his view, at the end of the appellate inquiry, conflicting verdicts must not remain in place regarding an accused convicted and acquitted of the same criminal conduct on the same evidence in the same proceedings, except where the court can definitively conclude without “speculating” as to how the inconsistent verdicts were arrived at. [ 33 ] Mr.

Napope took the position that, in this case, we can only speculate as to the reasoning that led to the inconsistent verdicts. He submitted that, as a result, an acquittal should be entered, or, in the alternative and taking account of the reasoning in R.V. , a new trial should be ordered on the robbery charge alone. B. The Crown’s remand submissions [ 34 ] The Crown’s remand submissions, unlike those of Mr. Napope, were not limited to the effect of the new guidance provided in R.V. as to the reconciliation of apparently inconsistent verdicts where there have been erroneous jury instructions.

Rather, the Crown sought to reargue key aspects of the Decision that were not affected by R.V . Further, it took a different position in relation to one significant issue than the position it had taken both at trial and in its submissions to this Court before the Decision [appeal submissions]. 1.

Can inconsistent verdicts arise if the offences have different essential elements? [ 35 ] First, the Crown submitted that if the essential elements of the offences charged are different, the conduct of which the accused has been found both guilty and not guilty is necessarily different and the verdicts cannot be inconsistent. It asserted that manslaughter and robbery have different mens rea requirements, and that as a result of this qualitative difference, there could be no “true inconsistency”.

That argument had been made by the Crown in its appeal submissions and rejected in the Decision. [ 36 ] R.V. did not provide new guidance in relation to this issue. As noted above, Moldaver J. relied on and restated the test in Pittiman . In doing so, he did not say directly or indirectly that verdicts can be inconsistent only if the offences have the same essential elements. To the contrary, he confirmed that the issue in relation to inconsistent verdicts is whether the accused has been found “guilty and not guilty” of the same conduct .

Indeed, he did so in the first sentence in his judgment, stating as follows: [1] A jury renders inconsistent verdicts when it finds an accused both guilty and not guilty of the same conduct. … [ 37 ] The phrase “the same conduct” was also used by Moldaver J. in the analytical framework he instructed should be applied where the Crown seeks to rebut an apparent inconsistency on the basis of legal error in the jury charge.

That framework requires that the Crown satisfy the court that there is a legal error that “reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct ” (emphasis added, at para 33). The same phrase appears in his explanation of the framework at paragraph 34. [ 38 ] This language does not mean that the essential elements of the offences at issue are not central to the assessment of inconsistency. Neither R.V. nor the Decision suggest otherwise.

The question is whether the verdicts are irreconcilable, such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence. Here, in order to find Mr. Napope guilty of the robbery, the jury had to conclude that the Crown had proved beyond a reasonable doubt that he was one of the four people who entered the apartment to rob Mr. Keenatch. That was the conduct which could result in the conviction, as it would prove the essential elements of robbery. [ 39 ] In addition, there was evidence that Mr. Keenatch died from a stab wound suffered during the robbery.

There was no evidence to the contrary. At trial, the defence did not suggest that the Crown did not prove that Mr. Keenatch was killed in the course of the robbery. Nor did it suggest that the robbery was not dangerous. Rather, Mr. Napope’s defence was intended to raise a reasonable doubt as to whether he was there at all. He claimed that he was not.

[40] The case law does, of course, confirm that apparently inconsistent verdicts can sometimes be reconciled on the basis that theoffences are qualitatively different (Pittiman at para 8; R.V. at para 31). In those circumstances, conduct that proved the essential elementsof one of those offences may not prove the essential elements of the other. [41] However, that obvious proposition is of no assistance to the Crown here.

In order to prove unlawful act manslaughter where theunlawful act which resulted in a death is robbery, the only additional element that must be proved is that the robbery was such that it wasobjectively foreseeable that there was a risk of bodily harm beyond the trivial and transitory. This additional requirement was eitherpresent or not present as a necessary result of carrying out the robbery.

If it was present and a victim died, proof of the robbery would alsoprove unlawful act manslaughter. [42] The case law does not say, however, that there can never be inconsistent verdicts where the offences have different essentialelements. As is evident from the Decision, it was our opinion that there are circumstances in which a verdict that an accused is guilty ofone offence – that is, that the Crown has proven the essential elements of that offence – means that no reasonable jury could find theaccused not guilty of another offence with which they have been charged.

The question of whether that is so turns on the nature of theissues and evidence in the particular circumstances of the case. In the Decision, we held this was such a case. To reiterate, we concludedas follows: [38] …In the language of Pittiman, the evidence on the manslaughter charge was so wound up with the evidence on the robbery chargethat it was not logically separable. That is so based on the issues and evidence in this case, and despite the fact that the offences havedifferent elements. The issue was identity. A properly instructed jury could not reasonably find Mr.

Napope guilty of this patentlydangerous robbery – the predicate offence in relation to the charge of unlawful act manslaughter – and not guilty of manslaughter, as hemust also have been guilty of that offence. The verdicts are accordingly inconsistent and the conviction is unreasonable. (Emphasis added) [43] I note, by way of illustration, R v McShannock (1980), (ON CA), 55 CCC (2d) 53 (Ont CA).Mr. McShannock was convicted of unlawful confinement and acquitted of sexual assault – offences which have different essentialelements. Mr.

McShannock appealed his conviction, arguing that “on the peculiar facts of this case the acts alleged to constitute aconfinement of the complainant were so inextricably interwoven with the acts relied upon as constituting an indecent assault that theverdicts were inconsistent and could not be reconciled on any rational basis” (at 55). The Ontario Court of Appeal agreed, with MartinJ.A. writing as follows: …The onus is on the appellant to show that the verdicts are so at odds that no reasonable jury who understood the evidence could haveproperly arrived at that verdict.

We think that onus on the peculiar facts of this case has been discharged. Where on any realistic view ofthe evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jurymust have been confused as to the evidence or must have reached some sort of unjustifiable compromise.

We would, on the ground thatthe verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to be entered. (at 56) As noted in the Decision (at para 14), this “realistic view” language was approved in Pittiman at paragraph 7. [44] To summarize, R.V. did not provide new guidance to the effect that verdicts cannot be inconsistent if the offences at issue havedifferent essential elements. For that reason, it would not be appropriate to reconsider this aspect of the Decision.

Rather, as noted above,the question we must consider is whether the apparent inconsistency in the verdicts that we found to exist can be reconciled based on theerrors in the jury instructions. 2. Was the statement that the real issue was identity a material error? [45] Second, the Crown averred in its remand submissions that the statement in the Decision that the “only real issue” at trial wasidentity was an error which resulted in flawed reasoning. The identity issue was whether Mr. Napope was one of the four people whocommitted this robbery.

There were no admissions at trial that would have proved any of the essential elements of either offence. [46] The argument that identity was not the real issue was a material change in the Crown’s position. In their appeal submissions,both Mr. Napope and the Crown had asserted that the issue at trial was identity.

Indeed, the Crown’s appeal factum repeatedly andexplicitly made this point to buttress its claim that the jury instructions were flawed in a manner that explained the verdicts, stating asfollows: 15. …For now, it will suffice to say that considering the fact the only real issue in this case was identity, the trial judge’s instructions tothe jury were needlessly complex and hopelessly wrong in law. … … 35. From beginning to end, the only real issue in this case was identity. Was the appellant one of the men who forcibly entered Mr.Keenatch’s apartment to rob him?

By their verdict, the jury answered that question affirmatively. There was no real issue about whetherthe culprits were armed with knives, whether their faces were masked or whether one or more of them used knives to stab Mr. Keenatch.There was no real issue that Mr. Keenatch’s death was caused by an unlawful act committed in the course of the home invasion robberyeither. … 52. Finally, considering the fact that identity was the only real issue in this case and the undisputed fact that Mr.

Keenatch was stabbedto death in the course of a violent home invasion robbery, the trial judge’s pedantic instructions that the jurors were required to determinewhether the unlawful act which caused death was dangerous, whether the culprits acted without colour of right in robbing Mr. Keenatch

or whether the culprits intended to deprive Mr. Keenatch of his property merely distracted the jury from the real issues in this case. (Emphasis added) [47] It was only in its supplementary factum that the Crown reversed ground, submitting as follows: 33. In finding verdict inconsistency last year, this Court stated that identity was the sole issue at trial. With respect, that was inaccurate.… [48] With respect, the Decision does not say that identity was the “sole issue”. It says identity was the “real issue” at trial, therebyechoing the submissions of both the Crown and Mr. Napope.

For the reasons explained above, that does not mean the Court – as theCrown now suggests – lost sight of the fundamental principle that, in the absence of admissions by Mr. Napope, the Crown was required,as always, to prove all of the elements of the offence beyond a reasonable doubt. The statement that identity was the issue made the pointthat, based on the record, proof of Mr. Napope’s guilt turned on whether the Crown had proved that he was one of the four people whoentered the apartment to commit robbery.

That point was made very clearly by the Crown in its closing statement to the jury: With respect to the manslaughter count, and this is what I’ll be submitting at the outset, if a death is caused during an unlawful act, thenthat is manslaughter. That is why we have described this all along as a robbery gone wrong. The group may not have intended to killJohnathon Keenatch when they set out to commit the robbery and assault of him. But if a death occurs as a result of robbing or assaultingsomeone, then that’s manslaughter. That’s why he’s been charged with manslaughter.

That’s why we presented the evidence in thefashion that we presented it. [49] R.V. did not provide any new guidance which would call for reconsideration of this aspect of the reasoning in the Decision; thatis, that identity was the real issue in this case, and that this was relevant in determining whether the verdicts were inconsistent. R.V. doesnot suggest an appellate court cannot consider the evidence in the manner in which the case was presented, within the stringent confines ofthe test specified by Moldaver J.

Justice Moldaver sought to reconcile the verdicts in R.V. because he concluded that the three charges atissue “have near identical elements and were based on the same evidence at trial” (at para 50). As the Crown pointed out in a differentcontext, R v Koury, (SCC), [1964] SCR 212, confirmed that an appellate court must consider the entire trial record whendetermining if there is an inconsistency in the verdicts. 3.

Were there errors in the jury charge that reconcile the guilty and not guilty verdicts? [50] Third, the Crown alleged in its remand submissions that this Court erred in the Decision by finding that it was not permissibleto consider whether legal errors in the jury charge relating to the manslaughter offence reconciled the verdicts. I agree. It was our viewthat J.F. had decided and that R.V. CA had correctly affirmed that an appellate court could not reconcile apparently inconsistent verdictsreturned by a jury in that fashion. In their dissent in R.V., Brown and Kasirer JJ. pointedly agreed.

The majority disagreed. [51] However, the fact that apparently inconsistent verdicts can be reconciled in this way does not answer the question that we mustdecide; that is, can these verdicts be explained by errors in the jury charge, with the degree of certainty required by the analyticalframework specified in R.V.? [52] The Crown’s remand submissions on this point were brief. It said this Court was correct in stating that the trial judge madeseveral errors when charging the jury about the essential elements of manslaughter and how Mr. Napope might be liable as an aider orabettor to that offence.

It submitted that there was no doubt, given the nature of those errors – particularly those relating to the requisitemens rea for manslaughter – that the verdicts were not actually inconsistent. [53] The Crown dealt more fully with the question of errors in the jury charge in its appeal submissions than in its remandsubmissions. The Crown’s key themes are briefly summarized at paragraphs 6–7 and 10–11 of this judgment. The following is a moreprecise description of the Crown’s appeal submissions as to the many errors allegedly committed by the trial judge: (

a) The trial judge instructed the jury to focus on the identity of the principal offender as if there could only be one principaloffender in a manslaughter case and as if that person had to be the person who inflicted the fatal injury. This was a serious error of law thatdid nothing but confuse the real issue the jury had to decide. It is “entirely conceivable that one of the reasons the jurors found theappellant not guilty of manslaughter” was that they had a reasonable doubt about whether he inflicted the fatal injury even though they hadno doubt that he assaulted Mr. Keenatch. (

b) Neither subjective nor objective foreseeability of a risk of death is required to prove liability for manslaughter. Pursuant to s.21(1) of the Criminal Code, a person may be a party to the offence of manslaughter if he or she knowingly aids or abets the commission ofan unlawful act which causes death. An aider or abettor may be convicted of manslaughter if a reasonable person in all the circumstanceswould have appreciated that bodily harm was a foreseeable consequence of the unlawful act the party assisted or encouraged others tocommit. The trial judge erred in law by instructing the jury that before Mr.

Napope could be convicted of manslaughter as an aider or anabettor the jury had to find: (

i) he did something that aided or abetted the principal offender to commit manslaughter; and (ii) he intended to aid or abet the principal offender to commit the offence of manslaughter. (

c) By fashioning the manslaughter decision tree as he did and instructing the jury to carefully follow the step-by-step pathway toconviction, the trial judge likely led the jurors to believe that unless they were able to unanimously conclude that he was a principaloffender, they could only convict if they unanimously concluded he was an aider or abettor. (

d) Under s. 21(2) of the Code, an accused is liable for manslaughter if: (

i) they formed a common intention with at least one other person to carry out an unlawful purpose, such as a robbery, and toassist each other therein;

(ii) the death of another person was caused during the commission of the common unlawful purpose; and (iii) a reasonable person in all the circumstances would have foreseen a risk of bodily harm to another person was a probable consequence of carrying out the common intention. The trial judge erred in law by repeatedly instructing the jury that to be liable as a common intent party Mr.

Napope had to know or ought to have known that the commission of the offence of manslaughter would be a probable consequence of carrying out the common unlawful purpose. [ 54 ] It was the Crown’s position that the effect of these errors was an instruction that would have led the jury to believe the requisite intent for manslaughter either as a principal or a party was “something much more akin to the intent required for murder”.

As noted above, it submitted that in light of this, it was “little wonder the jury found the appellant not guilty of manslaughter”. [ 55 ] The Crown characterized these as the most serious errors in the charge. It also took issue with other matters. It claimed that the charge was needlessly complex. In particular, and as noted above, it argued that it was unnecessary and confusing to instruct the jury that they should consider whether the robbery was the unlawful act that resulted in Mr. Keenatch’s death, as the only unlawful act which caused death was an assault.

That too was a change in position from the Crown’s position at trial. Further, and as noted above, it took the position that the jury instructions distracted the jury from the real issues, as identity was the only real issue in this case. V. ARE THE APPARENTLY INCONSISTENT VERDICTS RECONCILED BY ERRORS IN THE JURY CHARGE? [ 56 ] In the Decision, we concluded that there were errors in the jury charge. We found, by way of example, that the instructions as to the meaning of principal offender “might well confuse the jury as to the real issue it had to decide” – that is, the issue of identity (at para 10).

We also concluded that “the trial judge’s erroneous instructions as to the mens rea required for manslaughter, in the context of his instructions as to the application of the party provisions in s. 21 of the Criminal Code , may well have led the jury to conclude that the Crown had to prove subjective foresight or the objective foreseeability of the risk of death” (at para 12). [ 57 ] Did these conclusions reach the level required to meet the stringent test specified in R.V. ?

To repeat that test for ease of reference: [33] …The Crown must satisfy the court to a high degree of certainty that there was a legal error in the jury instructions and that the error: (1) had a material bearing on the acquittal; (2) was immaterial to the conviction; and (3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct. … [35] In assessing whether the Crown has satisfied its burden, the court must not engage in improper speculation about what the jury did and did not do.

The appellate court must be able to retrace the reasoning of the jury with a sufficiently high degree of certainty to exclude all other reasonable explanations for how the jury rendered its verdicts. If it can, any concern about speculation falls away. [ 58 ] Read in context, the phrases “might well” and “may well” that were used in the Decision to describe the effect of the errors in the jury charge mean “fairly likely”. “Fairly likely” is well short of the “high degree of certainty” demanded by the R.V. test.

Further, the Decision – having been made before R.V. – does not answer the other questions specified by R.V. ; that is, if the jury was confused or misled, is there is a high degree of certainty that had a material bearing on the acquittal? There was no attempt to retrace the jury’s reasoning.

Given that it was our view that apparent inconsistency could not be reconciled by errors in the jury instructions, there would have been no point in doing so. [ 59 ] Having now reconsidered this issue as instructed by R.V. , I am satisfied to a high degree of certainty that these inconsistent verdicts were the result of the legal errors in the jury instructions as to the meaning of principal offender and as to the mens rea required for unlawful act manslaughter.

My reasons for reaching this conclusion are as follows. [ 60 ] I would first note that I do not agree that the trial judge erred in law in the myriad ways suggested by the Crown. It was not an error of law to instruct the jury that they should consider whether the Crown had proved that Mr. Napope had participated in the robbery, and that the robbery could constitute the unlawful act that could prove unlawful act manslaughter. It was correct. [ 61 ] Further, the fact that the jury charge might have been shorter and simpler does not mean that its length or complexity constituted an error of law.

It can be reasonably argued – particularly with the benefit of hindsight – that jury instructions are often too long and complex, particularly when there are multiple charges against the accused. The standard templates that are used to construct jury instructions tend to produce that result. Simplicity and brevity can make a charge more comprehensible, and, to that extent, are beneficial.

However, those qualities are also difficult to achieve in the reality of the moment and pursuing them would sometimes increase the risk of omitting necessary instructions or inadvertently changing the way they would be understood by jurors. The standard templates that are generally used to construct jury charges offer safe harbour in the pressure of the moment.

[62] It must be kept in mind that style points are not the concern of this enquiry. The R.V. test is more demanding. It is concernedwith error. It provides that an apparent inconsistency will be reconciled only if there has been legal error in the jury instructions, and thenonly if the appellate court is satisfied – to a high degree of certainty – that the error is the only reasonable explanation for how the juryrendered its verdicts.

The question of whether there is legal error in the instructions to begin with must be determined on the basis of thefunctional approach to the appellate review of jury instructions, which was recently summarized by Kalmakoff J.A. in R v Theodore, 2020SKCA 131, 399 CCC (3d) 125: [122] A person charged with a criminal offence and tried by a jury is entitled to a properly, not perfectly, instructed jury (R v Jacquard, (SCC), [1997] 1 SCR 314 at para 2 [Jacquard]; R v P.J.B., 2012 ONCA 730 at para 41, 298 OAC 267 [P.J.B.]).Appellate review of the adequacy of jury instruction requires a functional approach, asking whether the charge read as a whole enabledthe trier of fact to decide the case according to the law and the evidence (R v Calnen, 2019 SCC 6 at para 8, [2019] 1 SCR 301 [Calnen];R v Mack, 2014 SCC 58 at para 49, [2014] 3 SCR 3; R v Jaw, 2009 SCC 42 at para 32, [2009] 3 SCR 26).

The instructions must be legallycorrect and fair; they need not be perfect (R v Badgerow, 2019 ONCA 374 at para 20, 146 OR (3d) 35). This means, when read as a whole,the charge must leave the jury with an understanding of (

i) the factual issues to be determined, (ii) the legal principles relating to thefactual issues and the evidence; (iii) the position of the parties; and (iv) the evidence relevant to the position of the parties on the variouslegal issues (R v Knox, 2017 SKCA 8 at para 16, 36 CR (7th) 89; R v Daley, 2007 SCC 53 at para 29, [2007] 3 SCR 523 [Daley]; R vHuard, 2013 ONCA 650 at para 50, 302 CCC (3d) 469). [123] In R v Naistus, 2019 SKCA 4 [Naistus], Caldwell J.A. described the application of the “functional approach” to appellate review ofjury instruction in this way: [21] [A]ppellate courts must examine the whole of the jury’s instructions to assess whether they achieve their purpose, namely, toequip the trier of fact with the tools necessary to make the findings required in the case at hand.

As this suggests, the Court cannotexamine a single piece of a jury charge in isolation from the rest of the charge or from what has occurred in the trial.

Matters such as theevidence adduced by the parties, the theories and submissions of the parties, and the parties’ suggestions and objections, if any, about thecontent of the jury charge are all material to the question of whether a jury charge functionally achieved its purpose (R v Jacquard at paras33–36; R v Daley at para 58; Thériault v The Queen, (SCC), [1981] 1 SCR 336 at 343–344; R v Royz, 2009 SCC 13 atpara 3, [2009] 1 SCR 423); so too are the language, style and format of the jury charge chosen by the trial judge to convey his or herinstructions to the jury (R v Daley at para 30). [124] In terms of form and content, trial judges are entitled to latitude in how they order the instructions and in the words they use toconvey the necessary elements (Daley at para 30; Calnen at para 8).

There is broad discretion about how much evidence to review, whatstructure to use and how to organize the charge (R v Newton, 2017 ONCA 496 at para 11, 349 CCC (3d) 508 [Newton]). The importantpoint is that, at the conclusion of the charge, the members of the jury must understand their task and have the necessary help from theinstructions to carry it out (R v Menard, (SCC), [1998] 2 SCR 109 at para 27). [63] The Crown’s argument that the jury charge was too long and complex effectively drives by this functional enquiry. It does notpose or answer the first question: is there legal error?

Nor does it answer the second: is the legal error the only reasonable explanation forthe inconsistent verdicts? In effect, the Crown effectively invites us to conclude that as a result of length and complexity, the jury shouldbe taken to have lost its way. That does not accord with the requirement that an appellate court retrace the jury’s reasoning and connect itto legal error. In my view and leaving aside for the moment the specific errors explored below, the jury instructions equipped the jury tomake the findings required in deciding this case.

They were not so long or complex that their length or complexity constituted legal error. [64] However, it is also my opinion that these inconsistent verdicts can be reconciled based on the errors in the jury instructionsrelating to the meaning of “principal offender” and mens rea required for manslaughter. My reasons for this conclusion are as follows. A. Reconciling the conviction for robbery with the finding that Mr. Napopedid not commit manslaughter as a principal offender [65] I will deal first with the instructions relating to the meaning of principal offender.

If there is more than one person presentduring the commission of an offence and each of them does some act toward its achievement, each of them commits the offence as a jointprincipal offender, as long as they have the requisite mens rea: R v Paskimin, 2012 SKCA 35 at paras 22–24, 393 Sask R 30; R v Miazga,2014 BCCA 312 at para 17, 315 CCC (3d) 182 [Miazga]. The trial judge, on the other hand, explained Questions 1 to 4 of the decisiontree for manslaughter – which related to the elements of the offence of assault – as follows: The first question is: Did someone apply force to Johnathon Keenatch?

And I am calling that someone the principal offender, just becauseit’s easier to refer to that person that way as we go through here. … [66] Following this erroneous statement, the trial judge repeatedly used the phrase “principal offender” to describe the person whoapplied force to Mr. Keenatch. He adopted the same approach in explaining the questions in the decision tree relating to robbery,beginning with the following statement: In order to find that someone -- and again, I am using the term the “principal offender,” whoever it was -- in order to find that someonecommitted robbery against Mr.

Keenatch, the Crown has to prove beyond a reasonable doubt the following essential elements, and thesecorrespond with questions 5, 6, 7, and 8. The Crown has to prove that the principal offender took the property of Mr.

Keenatch, and thatthe principal offender took the property fraudulently and without colour of right, and that the principal offender intended to deprive Mr.Keenatch of his property when he took it, and that the principal offender used violence or threatened to use violence. [67] The trial judge repeated this error when explaining the questions in the decision tree relating to proof of manslaughter. Thefollowing examples from the jury charge demonstrate that fact: So turning to question 9, which reads: Was the assault or robbery dangerous?

To prove manslaughter, the Crown has to prove beyond areasonable doubt that the principal offender’s unlawful act was dangerous. …

… Question 10 reads: Did the assault or robbery cause Johnathon Keenatch’s death? To prove that the principal offender’s unlawful act caused Mr. Keenatch’s death, the Crown has to prove beyond a reasonable doubt that the principal offender’s conduct contributed significantly to Mr. Keenatch’s death. … … Question 11 reads: Was Mr. Napope the principal offender? The Crown says that you may well conclude from the evidence that Mr. Napope was the principal offender, that he himself was the person who committed the assault or the robbery that caused Mr. Keenatch’s death. Mr. Napope says that it is not so.

He says that he was not involved in the matter, and it, in fact, he never has been in that building. [ 68 ] What, then, was the effect of these erroneous instructions? The only evidence linking Mr. Napope to these crimes was the eyewitness testimony as to what occurred when the four men entered the apartment and evidence that Mr. Napope’s DNA was found on Mr. Keenatch’s shirt. Accordingly, the jury could only convict him for robbery if they found he was one of those four men.

Having reached that conclusion and, but for the erroneous instructions as to the meaning of principal offender, it would have concluded that he was a joint principal offender and found that the answer to Question 11 in the decision tree was “yes”. If they had so found, the decision tree would have directed them to deliver a final verdict of guilty of manslaughter. It did not do so, as it had been led to believe that if it was not convinced beyond a reasonable doubt that Mr. Napope had either personally inflicted the fatal wound or personally taken the money or drugs from Mr.

Keenatch, he was not a principal offender. [ 69 ] I am satisfied that this was the path taken by the jury up to Question 11. The trial judge’s instructions on the meaning of principal offender were clear. There is no other reasonable explanation for the jury’s failure to convict Mr. Napope as a principal offender. The only other explanation, based on the evidence, would be that the jury concluded that the assault or robbery was not dangerous. However, the trial judge did not err in his explanation as to the meaning of “dangerous”.

His instructions were as follows: So turning to question 9, which reads: Was the assault or robbery dangerous? To prove manslaughter, the Crown has to prove beyond a reasonable doubt that the principal offender’s unlawful act was dangerous. To decide whether it was, you will ask yourselves whether a reasonable person in the same circumstances would have realized that he or she was exposing someone else to a risk of bodily harm. Bodily harm is any hurt or injury that interferes with a person’s health or comfort and is more than just brief or minor.

Of course, as I have just said, the unlawful act you are asking yourself about is an assault or a robbery or both, depending on how you got to question 9. So if you got to question 9 with a “yes” answer to question 4, you are asking yourself whether, in the assault, there was a risk of bodily harm. And if you got to question 9 either instead or also with a “yes” answer to question 8, you are asking yourself whether, in the robbery, there was a risk of bodily harm. [ 70 ] These instructions were clear and correct.

I am unable to conclude, based on the evidence, that a finding that this robbery was not dangerous in this sense is a reasonable explanation for the manslaughter verdict. [ 71 ] In the result, I am satisfied with a high degree of certainty that there was a legal error; and that this legal error had a material bearing on the acquittal on the manslaughter charge and was immaterial to the conviction on the robbery charge. There is also no other reasonable explanation for the failure to convict Mr.

Napope as a principal offender. [ 72 ] However, I am not satisfied that this fully reconciles the inconsistency between the verdicts by showing that the jury did not find Mr. Napope both guilty and not guilty of the conduct that resulted in the finding that he was guilty of the inherently dangerous robbery that resulted in the death of Mr. Keenatch. The jury, having decided that Mr. Napope was not a principal offender, also would have proceeded to decide that he did not aid or abet the commission of manslaughter by a principal offender, and was not a common intent party.

Those were the other two potential routes to a conviction pursuant to s. 21 of the Code . In my view, it is also necessary to consider whether those conclusions can be reconciled with the acquittal. B. Reconciling the conviction with the finding that Mr. Napope did not aid or abet a person in committing the offence of manslaughter [ 73 ] In dealing with aiding and abetting, the trial judge instructed the jury that the Crown must prove beyond a reasonable doubt that Mr. Napope did something that actually aided or abetted the principal offender to commit manslaughter.

That spoke to the actus reus of aiding and abetting. As to mens rea , he told the jury that the Crown must prove that Mr. Napope knew or ought to have known that the principal offender intended to commit manslaughter, and that he actually intended to assist, facilitate, encourage or make easier the commission of the offence of manslaughter. [ 74 ] These instructions were incorrect. Further, it is my opinion that they provide the basis to reconcile the finding that Mr.

Napope was not an aider, abettor or common intent party in relation to manslaughter with the conviction for robbery. [ 75 ] In R v Cowan , 2020 SKCA 77 , 389 CCC (3d) 258 (reversed in part, but not on this point, 2021 SCC 45 , 409 CCC (3d) 287), Kalmakoff J.A., for the majority, explained the meaning of the requirement to prove both the actus reus and mens rea for aiding and abetting: [26] The effect of s. 21(1) of the Criminal Code is to put aiders and abettors on the same legal footing, in terms of culpability, as principal offenders.

This does not mean, however, that the guilt of an aider or abettor is proved in precisely the same fashion as the guilt of a principal. In R v Huard , 2013 ONCA 650 , 302 CCC (3d) 469, Watt J.A., citing the Supreme Court of Canada’s decision in R v Briscoe , 2010 SCC 13 , [2010] 1 SCR 411, explained that the actus reus and mens rea components of aiding (under s. 21(1) (b)) and abetting ( s. 21(1) (c)) are distinct from those of the principal offender. Justice Watt noted that both s. 21(1) (

b) and s. 21(1) (

c) require proof of certain conduct and fault on the part of an aider or abettor: [62] The conduct element requires proof that the aider or abettor provided actual assistance to the principal by doing something that

assisted the principal to commit the offence or encouraged the principal to do so. It is not enough that the conduct of the aider or abettorhad the effect of helping or encouraging the principal or resulted in the principal’s committing the offence: Briscoe, at paras. 14-15. [63] The fault element in aiding or abetting arises from the phrase “for the purpose of”, which is expressly stated in s. 21(1)(

b) and isimplied in s. 21(1)(c). The fault element includes both intent and knowledge. The aider or abettor must intend to help or encourage theprincipal to commit the offence and must know that the principal intends to commit that offence: Briscoe, at paras. 16-17.

The aider orabettor need not share the intent of the principal to commit the offence: Briscoe, at para. 18. (Emphasis in original) See to the same effect: R v Machushek, 2016 SKCA 41 at para 50, 476 Sask R 194; and R v Nelson, 2021 SKCA 37 at para 49. [76] In R v Jackson, (SCC), [1993] 4 SCR 573 at 582–583 [Jackson], McLachlin J. (as she then was) explained thefault element – that is, the mens rea – required to prove aiding and abetting where the offence is, as here, unlawful act manslaughter: …[T]his court has held that unlawful act manslaughter — that is, the killing of a person while engaged in an unlawful act — does notrequire a subjective appreciation of the consequences of the act.

The test is objective — what a reasonable person would have appreciatedin all the circumstances. Nor is it necessary that the risk of death be foreseeable. As long as the unlawful act is inherently dangerous andharm to another which is neither trivial nor transitory is its foreseeable consequence, the resultant death amounts to manslaughter: R. v.Creighton, (SCC), [1993] 3 S.C.R. 3; see also R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944.

I conclude that a person may be convicted of manslaughter who aids and abets another person in the offence of murder, where areasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous actwhich was being undertaken. … See to the same effect R v Natewayes, 2015 SKCA 120 at para 19, 467 Sask R 308; Miazga at para 16; and R v Cabrera, 2019 ABCA 184at para 99, 442 DLR (4th) 368. [77] In his concurring reasons in Jackson, Lamer C.J.C. confirmed that the same approach applies to a common intent party, statingas follows: …[A]n accused can be convicted of manslaughter under s. 21(2) of the Criminal Code, R.S.C. 1985, c.

C-46, if the accused, havingformed an intention in common to carry out an unlawful purpose and to assist the perpetrator therein, knew or ought to have known that aprobable consequence of carrying out the common purpose was the carrying out by the perpetrator of a dangerous act which a reasonableperson could recognize as creating the risk of bodily harm which is neither trivial nor transitory. (at 577) [78] This comment adopted the conclusion by McLachlin J. that, as in relation to aiding and abetting, “the appropriate mens rea formanslaughter under s. 21(2) is objective awareness of the risk of harm” and that “a conviction for manslaughter under s. 21(2) does notrequire foreseeability of death, but only foreseeability of harm, which in fact results in death” (at 587). [79] The instructions given by the trial judge in relation to Questions 12 to 15 were not consistent with these principles.

He began bydescribing the actus reus for unlawful act manslaughter: Dealing specifically with question 12, did Mr. Napope do something that actually aided or abetted the principal offender to commit themanslaughter? The Crown has to prove beyond a reasonable doubt that Mr. Napope did something that actually aided or abetted theprincipal offender to commit manslaughter. This element really describes two ways in which a person can be a party to an offence. Thefirst way is by aiding.

The second way is by abetting. … …And as I have said, aiding means to provide help or assistance of any kind. (Emphasis added) [80] Dealing specifically with “aiding”, the trial judge said this: …What the Crown has to prove is that the act of Mr. Napope, in fact, helped or aided the principal offender in committing the offence ofmanslaughter. And the Crown says that Mr. Napope aided the principal offender by participating in the events in the apartment as -- basically asdescribed by Tyrone Lafond.

Basically to say that any of the three or four people who weren’t the principal offender aided the principaloffender in everything that they did. If you find that Mr. Napope aided the principal offender in this way, you also must be satisfiedbeyond a reasonable doubt that what he did actually aided the principal offender in some way, and to some extent, aided in his commissionof the offence of manslaughter. If the acts of Mr. Napope in any way and to any extent helped or facilitated or made easier the commission of manslaughter by theprincipal offender, then the necessary connection between the acts of Mr.

Napope and the commission of manslaughter by the principaloffender would be established. (Emphasis added) [81] The trial judge then described “abetting” as follows: The other way that the Crown may prove this element, as I said, is by proving that Mr. Napope abetted the principal offender to committhe offence of manslaughter. And as I have said, a person abets an offence when they somehow encourage or promote or support its

commission. … (Emphasis added) [ 82 ] These instructions contained errors. The Crown was only required to prove that Mr. Napope aided or abetted the commission of the robbery or assault that constituted the objectively dangerous act. However, the trial judge then proceeded to give instructions relating to mens rea which were consistent with these erroneous instructions as to the actus reus : Question 13 reads: Did Mr. Napope intend that his actions would aid or abet the principal offender to commit the manslaughter?

So here, having determined that he did something, the question is did he intend that his actions would aid or abet. Proof of this intent has two components. First, you have to be satisfied beyond a reasonable doubt that Mr. Napope knew that the principal offender intended to commit manslaughter . Second, you must be satisfied beyond a reasonable doubt that when Mr.

Napope aided or abetted the principal offender, he did so with the intent to assist or facilitate or encourage or make easier the commission of manslaughte r by the principal offender. (Emphasis added) [ 83 ] Taken alone, this explanation of intent clearly says that, in order to prove that Mr. Napope had aided or abetted the commission of the offence of manslaughter, the Crown had to prove that Mr. Napope knew the person who did so would cause a death in the course of the robbery. It also suggests it had to prove that Mr. Napope intended to assist or encourage the principal offender to do so.

That is an error on both counts. [ 84 ] This passage must, of course, be read in context. That is required by the functional approach to the review of jury instructions. The trial judge went on to explain what he meant by these two components: In regard to the first component, whether Mr. Napope knew that the principal offender intended to commit the manslaughter, it is not necessary that Mr. Napope knew the exact details of how that offence would be committed. You need only be satisfied that Mr.

Napope knew that the principal offender intended to commit assault or robbery, and that, objectively, one could foresee that the assault or robbery would cause harm. If you are satisfied to that point, then you will have to decide whether Mr. Napope performed those acts with the intention to aid or abet, that is, to assist or facilitate or encourage or make easier the principal offender in committing the offence. (Emphasis added) [ 85 ] This statement was correct to the extent that it confirmed that the Crown was not required to prove the objective or subjective foreseeability of death.

It properly described the mens rea as the objective foreseeability of the risk of harm. For that reason, it may have cured the misapprehension that would have been caused by the language which the trial judge had used to describe the actus reus and what he called the first component. Further, the jury heard these instructions twice, as they were repeated following a request by the jury for a “broader definition to [ sic ] boxes 12 to 15”. [ 86 ] However, this explanation did not cure anything in relation to the second component. The statement that the second component required the jury to decide whether Mr.

Napope “performed those acts with the intent to aid or abet…the principal offender in committing the offence” referred to the offence of manslaughter. That was the only offence referred to in this explanatory paragraph. It accordingly affirmed the erroneous instruction that the jury must be “satisfied beyond a reasonable doubt that when Mr.

Napope aided or abetted the principal offender, he did so with the intent to assist or facilitate or encourage or make easier the commission of the manslaughter”. [ 87 ] The trial judge also dealt with mens rea when he instructed the jury as to the common intention route to proof of manslaughter, which was the subject of Questions 14 and 15 in the decision tree.

There, the trial judge first explained the meaning of “common intention” in language that mirrored s. 21(2) of the Criminal Code , stating that “where two persons form an intention in common to carry out an unlawful purpose, and one of them commits another offence while carrying out the original unlawful purpose, then the second person is also guilty of that offence, even though he or she did not actually commit it, provided that he or she knew or ought to have known that the second offence would be a probable consequence of carrying out the original unlawful purpose”.

He then made these comments: …To prove that Mr. Napope committed manslaughter in this way, the Crown has to prove beyond a reasonable doubt that Mr. Napope and the principal offender formed an intention in common to carry out the unlawful purpose of assault or robbery or both, and to help each other carry out that unlawful purpose. And the Crown has to prove beyond a reasonable doubt that Mr.

Napope knew or ought to have known that the commission of the offence of manslaughter by the principal offender would be a probable consequence of carrying out the unlawful purpose of assault or robbery. (Emphasis added) [ 88 ] He then affirmed this erroneous instruction, stating as follows: If you are satisfied beyond a reasonable doubt that Mr. Napope and the principal offender formed an intention in common to carry out the unlawful purpose of assault or robbery or both, then you will follow “yes” arrow down to question 15. Question 15 says: Did Mr.

Napope know or ought he to have known that the commission of the offence of manslaughter by the principal offender would be a probable consequence of carrying out the unlawful purpose of assault or robbery? So the Crown has to prove that Mr. Napope knew or ought to have known that the principal offender would commit the offence of manslaughter in carrying out the unlawful purpose of assault or robbery. [ 89 ] Having done so, the trial judge explained what it meant to ask if Mr. Napope ought to have known that the principal offender would commit manslaughter: So how do you determine what Mr.

Napope should have known? You look at what a reasonable person in the circumstances would have

known. If a reasonable person in those circumstances would know that the principal offender probably would commit the offence ofmanslaughter in order to carry out the unlawful purpose, then Mr. Napope should have known. That is the objective foreseeability of therebeing harm. (Emphasis added) [90] This statement affirmed that the issue is objective foreseeability. However, it did not reiterate that the objective foreseeability atissue is of a risk of bodily harm beyond the trivial or transitory.

Rather, it suggests that says that commission of the offence ofmanslaughter must be objectively foreseeable. [91] The question at this stage, accordingly, is whether the conclusion that Mr. Napope was not an aider, abettor or common intentparty can be reconciled with his conviction for the robbery to the standard specified by the R.V. test. I am satisfied with a high degree ofcertainty that there were legal errors. I am equally satisfied that the jury – which asked for clarification of Questions 12 to 15 – would haveconcluded that Mr.

Napope aided and abetted the principal offender to commit the robbery or was a common intent party, and thus wouldhave returned a verdict of guilty of manslaughter – but for these legal errors. The legal errors relating to the mens rea requirement had amaterial bearing on the acquittal and were immaterial to the conviction.

There is no other reasonable explanation for the finding that Mr.Napope did not – in the language of the instructions – aid or abet the principal offender “in any way” or form a common intention tocommit unlawful act manslaughter. [92] I would again note – keeping the forest rather than the trees in mind – that the real issue was identity. The jury found that Mr.Napope was one of the four armed men who entered the apartment to rob Mr. Keenatch, an inherently dangerous act that resulted in hisdeath. There was evidence that four men participated in the robbery and no other evidence as to how they came to do so.

In thosecircumstances, it was appropriate, although perhaps unnecessary, to instruct the jury as to aiding and abetting and common intent: see, forexample, R v Johnson, 2017 NSCA 64 at paras 59–64, 360 CCC (3d) 246; R v Thatcher, (SCC), [1987] 1 SCR 652; and Rv Cowan, 2021 SCC 45 at paras 29–34, 409 CCC (3d) 287. [93] For these reasons, the apparently inconsistent verdicts returned by the jury are reconciled.

In the language of Moldaver J. inR.V., that means that “the jury did not find the accused both guilty and not guilty of the same conduct…[and] did not act unreasonably inrendering their verdicts” based on the evidence and instructions before it (at para 34). VI.

CAN THE CROWN RELY ON LEGAL ERROR INTHE JURY CHARGE TO RECONCILE INCONSISTENTVERDICTS TO MAINTAIN A CONVICTION WHEN IT HASNOT APPEALED THE INCONSISTENT ACQUITTAL? [94] As noted above, the majority in R.V. declined to answer the question of whether the Crown must cross-appeal where it seeks toreconcile apparently inconsistent verdicts on the basis of erroneous jury instructions.

Justice Moldaver’s reasoning on this point was asfollows: [46] The parties disagree about what happens when the Crown has not cross-appealed but nonetheless asserts that a legal errorreconciles apparently inconsistent verdicts. [47] Here, as indicated, the Crown cross-appealed R.V.’s acquittal on the sexual assault charge. Accordingly, the issue of whether theCrown must cross-appeal where it seeks to reconcile apparently inconsistent verdicts on the basis of erroneous jury instructions is notbefore us.

Nor indeed has that issue ever been squarely before this Court. [48] Having regard to the bedrock principle of our adversarial system that where an accused makes an argument, the Crown is entitledto rebut it, there is a viable argument that the Crown need not cross-appeal to rebut an inconsistent verdict allegation raised by an accused.That said, I recognize that there are tenable arguments to the contrary, relating to the integrity of the legal process and the legitimacy ofverdicts.

In the end, I consider it prudent to leave the issue outstanding until it comes squarely before us. [95] Here, the question is squarely before us. Mr. Napope made no remand submissions on this issue. The Crown’s remandsubmissions, on the other hand, were thorough. Among other things, it relied on the reasoning in R v Plein, 2018 ONCA 748, 365 CCC(3d) 437, where the appellant had appealed his conviction for criminal negligence causing death by a judge sitting alone, alleging aninconsistent verdict based on his acquittal on a charge of unlawful act manslaughter resulting the same conduct.

The Crown did not appealthe manslaughter acquittal. Justice Paciocco, writing for the Court, concluded as follows: [23] In my view, the conviction for criminal negligence causing death relating to Cindy should not be set aside. The criminalnegligence causing death conviction is inconsistent with the manslaughter acquittal, but the criminal negligence causing death convictionis reasonable, supported by the evidence, and is lawfully correct based on facts properly found by the trial judge. In contrast, themanslaughter acquittal arose from a manifest legal error.

In my view, the law does not require an otherwise unassailable conviction to beset aside in a judge alone trial because an inconsistent, demonstrably unsound acquittal has been entered on a functionally identical chargein the same proceedings. [96] This issue was addressed in the context of an appeal from a jury verdict in R v Bempong, 2022 ONCA 298. There, the appellanthad appealed his conviction by a jury for sexual interference, alleging that his acquittal for sexual assault arising from the same conductwas an inconsistent verdict. The Crown did not cross appeal.

Justice Huscroft, writing for the Court, concluded that the Crown wasnonetheless entitled to respond to the inconsistent verdict argument. He gave succinct and thorough reasons for doing so: [20] In my view, permitting the Crown to respond to an inconsistent verdict argument without having appealed from acquittal does not

undermine the integrity of the legal process or the legitimacy of verdicts. That is so because, as this court noted in Plein, by appealing onthe basis that the verdicts are inconsistent the appellant necessarily puts the reasons for that inconsistency in issue. The integrity of thelegal process and the legitimacy of the appellant’s conviction would be undermined if the Crown were precluded from responding to theappellant’s appeal because it chose not to appeal his acquittal. [21] If the court concludes that the appellant’s acquittal is the product of legal error, it must take that error into account in decid

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