Background
In the early morning hours of September 29, 2019, Jamar Stephens was among a group of men gathered on a sidewalk outside Karma Nightclub in downtown St. Catharines. A man named Saeed Savalanpour emerged from the club, approached the group, announced “don’t move,” and opened fire. At least one person in the group returned fire. Savalanpour was struck by two bullets, and five bystanders suffered gunshot wounds. Stephens — identified by a blue “Champion” hoodie on security video — fled the scene with his cousin; months later, police executing a search warrant intercepted a call in which Stephens directed his girlfriend to remove a firearm from his home. She was arrested in possession of a .32 calibre revolver and a 9 mm Glock magazine.
Stephens was tried by judge and jury on a multi-count indictment. The trial judge directed acquittals on all five firearms-related charges, finding the evidence “fell well short” of establishing that Stephens had been armed. However, he allowed two counts of aggravated assault — one naming Savalanpour, one naming the five bystanders — to go to the jury on a secondary party liability theory. The jury convicted on both counts. Stephens appealed, raising three grounds: (1) the trial judge should have declared a mistrial after the Crown’s improper opening address, or at minimum given a stronger corrective instruction; (2) acquittals should have been directed on the aggravated assault counts as well; and (3) the jury should have been instructed on self-defence.
The Court’s Holding
The Court of Appeal (Dawe J.A., Miller and Wilson JJ.A. concurring) dismissed the appeal on all three grounds. On the mistrial issue, the court held that the trial judge’s corrective instruction — directing the jury to disregard Crown counsel’s expressions of opinion and invitations to draw inferences during opening — fell squarely within the range of acceptable remedies. Mistrials are a remedy of last resort, and absent a clearly wrong decision or an error in principle, an appellate court owes significant deference to a trial judge’s assessment of whether one is warranted. The court also rejected the argument that Crown counsel’s jigsaw-puzzle analogy undermined the criminal standard of proof, noting the trial judge gave correct instructions on the burden of proof both before and after trial.
On secondary party liability, the court affirmed a critical principle: the Crown need not prove that Stephens foresaw a shooting. To establish guilt for aggravated assault as a secondary party, the Crown was required only to prove that Stephens aided or abetted an assault (or participated in a common unlawful purpose), and that bodily harm to the victims was objectively foreseeable from any violent confrontation — not that shooting specifically was foreseeable, and not that the resulting injuries were severe enough to reach the aggravated threshold. On the evidence — including Stephens driving a group from Toronto to St. Catharines in the early morning hours, the agreed connection between Savalanpour and one of Stephens’s companions, and the purposeful manner in which Savalanpour approached the group — it was open to the jury to infer a common purpose to have a violent confrontation with Savalanpour, and to find that Stephens had aided that purpose. The trial judge was correct to leave both counts with the jury.
The self-defence ground was also rejected. The trial judge declined to leave self-defence with the jury, relying on this court’s reasoning in R. v. Woodcock, 2015 ONCA 535, which the trial judge found to be on all fours with the present case. The Court of Appeal found no error in that ruling.
Key Takeaways
- A person may be convicted of aggravated assault as a secondary party even where there is insufficient evidence that they personally possessed or fired a weapon, provided the Crown proves aiding or abetting (or a common unlawful purpose) and that bodily harm was objectively foreseeable — foreseeability of a shooting, or of injuries severe enough to constitute aggravated assault, is not required.
- Crown counsel’s opening address must not contain argument, opinion, or invitations to draw inferences; however, a targeted corrective instruction is ordinarily a sufficient remedy, and a mistrial will only be warranted where an instruction cannot cure the prejudice.
- Circumstantial evidence of a pre-existing connection between accused and complainant, coordinated travel in the early morning hours, and the purposeful conduct of participants can, in combination, support an inference of a common purpose to commit a violent confrontation — even absent direct evidence of planning.
- A jigsaw-puzzle analogy used by Crown counsel to illustrate proof beyond a reasonable doubt does not necessarily misstate the criminal standard of proof, particularly where the trial judge gives correct instructions on the burden both before and after evidence.
Why It Matters
This decision reinforces the breadth of secondary party liability under ss. 21(1) and 21(2) of the Criminal Code in the context of group violence. Defence counsel and Crown alike must appreciate that where participants in a group assault cause injury with a weapon, co-participants who aided the unlawful purpose can be convicted of aggravated assault without the Crown proving weapon-use was foreseeable. The foreseeability inquiry is limited to whether bodily harm — not shooting, not grievous injury — was an objective risk of the common purpose.
The case also provides a practical benchmark for trial management of improper Crown openings: appellate courts will uphold a corrective instruction in lieu of a mistrial unless the trial judge’s choice was clearly wrong, and will not require a personal rebuke of counsel so long as the jury is clearly directed to disregard the offending remarks. Practitioners should note the court’s reaffirmation that jurors can be presumed to follow curative instructions even after strong or argumentative opening statements.