death is caused by the accused “while committing or attempting
to commit” any of a series of listed offences, including forcible
confinement. The Crown sought to combine that section with
s. 21(2), which defines parties to an offence on the basis of common intention to carry out an unlawful purpose and to assist each
other therein. In that regard, the Crown relied on R. v. Ceballo,
 O.J. No. 3977, 2007 ONCA 715, where this court observed,
at para. 2, that it is “an open question of law” whether ss. 21(2)
and 231(5) could be combined as a basis for first degree murder
committed in the course of a robbery and forcible confinement.
The specific argument advanced in the case at bar was that there
was evidence available for the trier of fact to conclude that the
appellant was a party to the forcible confinement of Mr. Swan,
that the confinement was causally and temporally linked to
the murder, and that the appellant was the substantial cause of
Mr. Swan’s death.
 The appellant counters that binding jurisprudence foreclosed this argument, including R. v. Harbottle,  3 S.C.R.
306,  S.C.J. No. 58. In that case, Cory J., writing for the
court, found that in interpreting what is now s. 231(5), a restrictive test of substantial causation should be applied, which
“requires that the accused play a very active role — usually
a physical role — in the killing”: Harbottle, at p. 324 S.C.R.
 In addition, the appellant submits that the release of R. v.
Ferrari,  O.J. No. 2649, 2012 ONCA 399, 287 C.C.C. (3d)
503, made it very clear that the argument could not succeed. In
that case, Rosenberg J.A. writing for this court considered the interaction between ss. 21(2) and 231(5) and stated, at paras. 68-69:
Thus, despite this court’s decision in Richardson, it is my view that the
question of liability for first degree murder under s. 231(5) based upon
s. 21(2) is an open one. That said, however, I am satisfied that the two provisions can be combined. While liability for first degree murder under s. 231(5)
is premised on active participation in the murder, that liability flows from the
participant’s acts not any additional mental element. Provided the participant’s conduct was a substantial cause of the death and the other elements of
s. 231(5) are made out including liability for murder and the underlying
crime, such as forcible confinement, the accused can be found guilty of first
It is true, as this court pointed out in Jackson, that an accused can be convicted of murder under s. 21(2), even though he did not participate in the act
which caused death. In such a case, he could not be convicted of first degree
murder under s. 231(5), not because the underlying liability for murder was
premised on s. 21(2), but because the Crown was unable to prove that the
party’s participation was a substantial cause of the death of the victim.
 In the present case, I accept that the appellant had the
better argument in regard to his potential liability for first degree