The defence also argued that even if the Crown was not
limited to the claim that the respondent was the getaway driver,
there was no basis in the evidence upon which a reasonable jury
could convict the respondent of manslaughter on any theory of
liability. The defence pointed out that there was no direct evidence
as to who was using the #8019 phone on the day of the robbery.
 The Crown argued that the trial judge was obligated to
take the evidence at its highest from the Crown’s perspective in
deciding whether to direct a verdict of acquittal. The Crown further submitted that the trial judge was not required to accept
Mr. Cousins’ evidence, but was required to consider the entirety
of the evidence, including Mr. Cousins’ testimony, in deciding
what inferences could reasonably be drawn. On the Crown’s
argument, Mr. Cousins’ evidence, which the jury may or may not
accept, did not preclude the jury from drawing the inferences
necessary for a finding of guilt. The Crown further argued that it
was not limited to the “getaway driver” theory, but could rely on
all legal bases for liability available on the evidence. It argued
that even if the respondent was not the getaway driver, a route
to conviction was available on the theory that the respondent,
through the #8019 phone, was acting as the conduit of information from the inside man to the robbers.
 The Crown acknowledged that it was its theory that the
respondent was the driver, but argued:
[O]ur case, the factual basis has never changed. Whether we highlighted the
fact that Mr. Kelly is the getaway driver or not, we’ve always said he was
the getaway driver. We’ve always said he was in communication with that
8019 number from the scene with the inside man. This has not changed.
This is — there’s not some new approach or new theory, if you want to call it
that. It’s simply the application of the law and what makes out manslaughter out of the same set of facts[.]
Your Honour has to tell the jury any mode of liability that arises out of the
facts. And I don’t see any issue of fairness that’s arising here.
 In granting the motion for a directed verdict, the trial
judge arrived at two important conclusions. First, he held that
in determining whether to direct a verdict of acquittal, he was
obligated to accept the evidence of Mr. Cousins as “credible and
reliable” and determine what inferences could be drawn in light
of the acceptance of Mr. Cousins’ evidence (para. 56).
 Second, the trial judge held that as the Crown had maintained throughout its case that the respondent was the getaway
driver, fairness to the respondent dictated that the Crown was
limited to that factual theory of liability in seeking to establish
the respondent’s culpability for manslaughter (paras. 73-81).
The trial judge went on to hold that, given the factual theory the