Court of Appeal for Ontario
Citation: R. v. Tommasone, 2013 ONCA 234
Date: 20130412
Docket: C54639
Before: Sharpe, Gillese and Watt JJ.A.
Between
Her Majesty the Queen
Respondent
and
Vincent Anthony Tommasone
Appellant
Counsel:
Leo Adler, for the appellant
Philippe G. Cowle, for the respondent
Heard & released orally: April 9, 2013
On appeal from the convictions entered by Justice S. E. Foster of the Ontario Court of Justice on September 13, 2011.
ENDORSEMENT
[1] The appellant appeals his convictions for robbery and disguise with intent. The principal ground of appeal presented in oral argument relates to party liability. In that regard, there was evidence that:
the appellant was involved in planning the robbery;
the appellant knew at the relevant time that Virdi was about to rob the victim;
the appellant put on a mask and stood with Virdi who was also masked awaiting the victim’s arrival;
the appellant remained at the scene in close proximity to the victim while Virdi attacked the victim; and
the appellant fled the scene with Virdi.
[2] In our view, it was open to the trial judge on that evidence to convict the appellant as a party to the robbery. The trial judge specifically rejected the appellant’s evidence that he had abandoned the robbery before it took place.
[3] It was also open to the trial judge to infer a level of participation and encouragement of Virdi, the principal perpetrator, from the evidence that the appellant remained at the scene ready to assist Virdi should the need arise.
[4] As for the conduct requirement, the appellant’s participation went beyond mere presence. As for mens rea, knowledge that Virdi was going to commit a robbery is conceded and the intent to assist can be inferred from the actions of the appellant and all of the circumstances as outlined above.
[5] Accordingly, the appeal is dismissed.
“Robert J. Sharpe J.A.”
“E.E. Gillese J.A.”
“David Watt J.A.”