If one shot is fired and one person is left dead with a bullet wound, the person holding the gun is likely to be held accountable (and found guilty) of murder, provided there is evidence confirming that he or she actually pulled the trigger.
What happens when multiple shots are fired, two people were each holding a gun and acting in concert, the evidence is spotty as to which person shot their gun or where the bullets ended up, and someone is left dead from a gun wound?
That was more or less the situation facing the Ontario Court of Appeal recently in R. v. Chambers, 2016 ONCA 684.
Mr. Joshua Warner and Mr. Tyrone Chambers went to a cover-charge house party in Hamilton in March 2010 that was open to the public. Each of the men arrived at the party armed with loaded handguns (albeit they were each already subject to firearms prohibitions). Mr. Chambers entered into an argument over the music selection and it escalated. Mr. Warner stood beside him as the situation became increasingly tense. Mr. Chambers pulled out something that was covered in a black sock and gripped it like a gun; shortly after, Mr. Warner did the same. Three shots rang across the kitchen and turned three house guests into victims, two were injured and one passed away.
But who fired the fatal shot? And what about the injuries?
Most of the witnesses were not able to say who shot each of the victims. The forensic evidence confirmed that all three victims were shot by .22-calibre bullets but a firearms expert could not confirm whether all three bullets originated from the same gun.
Both Mr. Chambers and Mr. Warner were charged with second-degree murder and two counts of aggravated assault. Mr. Warner conceded to having fired one of the shots that injured a victim.
But, when it wasn’t clear who fired the other two shots that injured and killed, could both Mr. Chambers and Mr. Warner each be found guilty of aggravated assault and second-degree murder, where the non-shooter would be convicted based on having aided or abetted the shooter?
For the purposes of criminal liability, an aider or abettor – potentially someone standing beside someone who is actively shooting – is as culpable as the main, or principal, offender.
The trial judge put that question to the jury, with some instructions. Mr. Chambers and Mr. Warner appealed, respectively, on the basis that the trial misdirected the jury on the required mens rea, or guilty mind required to make a conviction that someone aided or abetted in the commission of murder, amongst other grounds.
Associate Chief Justice Hoy of the Ontario Court of Appeal performed a detailed review of the case law and a close reading of the trial judge’s jury instructions.
Section s. 21(1) of the Criminal Code of Canada allows someone to be found guilty as a party to an offence where the person (a) actually committed the offence; (b) did or omitted to do anything for the purpose of aiding any person commit the offence; or (c) abetted any person in committing it. For the purposes of criminal liability, an aider or abettor – potentially someone standing beside someone who is actively shooting – is as culpable as the main, or principal, offender.
There are distinct guilty actions (acteus reus) and mental guilt (mens rea) needed to secure a conviction for aiding or abetting an offence. The actus reus involves doing (or, sometimes, omitting to do) something that helps or encourages the perpetrator to commit the offence. The mens rea has two aspects: intent and knowledge. The accused must have intended to help or to encourage the perpetrator to commit the crime and the accused can only intend to help or encourage the commission of a crime if he or she knows the crime that the perpetrator intends to commit. As such, the Crown must establish that an alleged aider or abettor knew the perpetrator intended to commit the specific crime, in this case aggravated assault and murder, although he or she does not need to know how the perpetrator will necessarily commit the crime.
There is an extra element for aiding or abetting the commission of murder. In that event, the “Crown must prove that [the aider or abettor] knew that the perpetrator had the intent required for murder” (paragraph 39). The aider or abettor, however, does not need to have had the mens rea necessary to personally commit murder; knowledge of the principal’s intentions is sufficient. See R. v. Briscoei, 2010 SCC 13; R. v. Maciel, 2007 ONCA 196; and, R. v. Helsdon, 2007 ONCA 54 for more.
Hoy ACJO determined that, in this case, the trial judge neglected to tell the jury that the aider or abettor must have known that the principal offender had the intent required for murder. It was insufficient to say that the principal offender intended to shoot. This omission was made more severe when the trial judge instructed the jury that the aider or abettor must himself have the intent required for murder.
The Crown argued that if the aider or abettor knew that the principal offender intended to shoot, he or she must have been at least willfully blind to the principal’s intention to commit murder, and so knowledge of the principal’s intent to commit murder could be imputed. Hoy ACJO disagreed: one cannot impute the intent to commit murder.
Hoy ACJO noted that in this case there was no evidence that either accused knew what the other was going to do. As such, the jury could have found that it had reasonable doubt as to whether either of the accused had knowledge of the other’s intent to commit murder, even if they knew that the other intended to shoot. With this in mind, Hoy ACJO upheld the aggravated assault convictions against both Mr. Chambers and Mr. Warner (because knowing the other had intent to shoot is enough to ground a party finding for an assault conviction) and quashed both of their murder convictions and ordered a new trial.
The short answer is that both people can be found guilty of murder. But there are rightfully safeguards on finding someone guilty of murder by virtue of aiding or abetting in its commission and it’s important to maintain those safeguards. So, a fuller answer is that even if the evidence cannot establish which of the two people fired the fatal shot, provided the evidence can establish that each person intended to help or encourage the other in committing an offence (i.e. shooting their gun), that each person knew the other intended to shoot his or her gun, and that each person knew the other had the intent required for murder, they both could be convicted of murder.