The principle of incontrovertibility does not extend to co-accused: the acquittal of one co-accused does not preclude the Crown from advancing a joint criminal enterprise case against another co-accused in a separate trial. A trial judge should not leave joint criminal enterprise as an alternative basis for liability unless there is evidence capable of supporting each element of joint criminal enterprise, including evidence of an agreement or understanding and the requisite intent of each participant. Trial counsel's failure to tender available medical records and cross-examine on their contents may lack reasonable explanation, but will not constitute a miscarriage of justice if the evidence would not have been likely to cause a jury to entertain a reasonable doubt.
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