The Crown alleged that the respondent and others,
including the two robbers, had entered into a common design to
rob people attending the poker tournament (the common unlawful purpose). The Crown further alleged that one of the robbers,
in the course of carrying out that common unlawful purpose, had
shot and killed the victim. If the Crown could prove that the
respondent, as a party to the common unlawful purpose to rob,
knew or ought to have known that one of the robbers would
probably cause harm of more than a trivial nature to someone in
the course of committing the robbery, the respondent was guilty
of manslaughter pursuant to s. 21(2), if that harm actually
caused death: see R. v. Jackson,  4 S.C.R. 573, 
S.C.J. No. 134, at pp. 586-87 S.C.R.; R. v. Modeste,  O.J.
No. 2957, 2015 ONCA 398, 326 C.C.C. (3d) 93, per Strathy
C.J.O., in dissent on another issue, at para. 103. The respondent’s potential liability under s. 21(2) did not turn on the specific
role he played in the robbery plan.
 Setting aside for the moment the trial judge’s finding that
the Crown could only rely on the allegation that the respondent
was the getaway driver, there was ample evidence upon which a
reasonable jury could find that the respondent formed a common
intention to rob the poker tournament. The evidence connecting
the #8019 cellphone to the robbery and to the respondent, combined with the evidence connecting the respondent to the getaway
car, provided a basis upon which a reasonable jury could infer
that he was a party to the plan to rob the poker tournament.
 Given the nature of the robbery planned, and the number
of people in attendance at the tournament, it would be reasonable for a jury to infer that the respondent knew that the robbers
would be armed and prepared to overcome resistance in effecting
the robbery. It flows from that inference that the jury could infer
that the respondent knew or ought to have known that it was
probable that one of the robbers would cause non-trivial harm to
someone in the course of committing the robbery.
C: Did the trial judge err in holding that the Crown was
bound by its theory that the respondent was the “getaway
 The Crown is not bound to prove its case according to any
factual or legal theory. Liability for an offence charged is determined by an application of the law relating to parties to an
offence, found primarily in s. 21 of the Criminal Code, to the
facts as found by the jury or trial judge. Culpability depends on
the evidence and the legal principles applicable to that evidence.
The Crown is entitled to rely on any route to liability available