was limited to the factual theory it had advanced. Second, if
the defence left some stone unturned because of its erroneous
assumption that the Crown was limited to the “getaway driver”
theory, the defence could have applied for an order reopening the
Crown’s case and allowing the defence to conduct additional
cross-examination, or make further legal submissions on issues
that had arisen during the Crown’s case.
 Finally, this is not a case like R. v. R. (J.S.),  O.J.
No. 5626, 237 C.C.C. (3d) 326 (S.C.J.), an authority relied on by
the trial judge. In that case, the Crown attempted to resile from
an agreement it had made with the defence. Pursuant to that
agreement, the Crown had undertaken to advance a certain factual position and the defence had agreed that it would not bring
an abuse of process application. There was no agreement here.
The Crown announced its factual position in its opening to
the jury and maintained that position. The defence, as it was
entitled to do, said nothing about its position. In that situation,
the general rule applies. Liability turns on an application of the
party liability provisions in the Criminal Code to the evidence,
and not on the factual theory articulated by the Crown.
 The trial judge applied the wrong test in directing a verdict of acquittal. He also erred in holding that the Crown was
limited to the factual theory it had advanced during the case.
The Crown was entitled to rely on any theory of liability available on the evidence, absent a demonstration by the accused of
prejudice to his ability to make full answer and defence. The
appellant did not demonstrate any prejudice, or at least any
prejudice that could not be fully cured by requiring the Crown to
reopen its case so that the defence could, if necessary, address
the basis for liability argued by the Crown on the motion for
a directed verdict. On the evidence, there was a basis upon
which a reasonable jury, properly instructed, could convict the
respondent of manslaughter by the operation of s. 21(2).
 I would quash the acquittal and direct a new trial on the
charge of manslaughter.
 Counsel are agreed that the respondent’s attendance at
the new trial can be arranged through the service of a summons
on counsel for the respondent. There is no need at this time for
a warrant. Should circumstances change and the issuance of a
warrant becomes necessary, the Crown may apply for a warrant.