COURT OF APPEAL FOR ONTARIO
Trotter, Sossin and Copeland JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Jonathan Massicotte
Appellant
Anthony Moustacalis and Aidan Seymour-Butler, for the appellant
Holly Loubert, for the respondent
Heard: April 1, 2026
On appeal from the conviction entered by Justice John S. Fregeau of the Superior Court of Justice on March 13, 2024, with reasons reported at 2024 ONSC 1516.
A. introduction
1On September 3, 2014, the body of William Darryl Wapoose was found on the side of a road in Thunder Bay, Ontario. He had been beaten and stabbed to death in an appalling display of violence.
2Three people were present when Mr. Wapoose was killed. Two of them – Z.M.L. (a young person) and the appellant – were charged with second degree murder. Z.M.L. was tried separately and found guilty of manslaughter. This court allowed his appeal and ordered a new trial: R. v. Z.M.L., 2025 ONCA 872, 456 C.C.C. (3d) 504.
3The appellant’s first trial ended in a mistrial because the jury was unable to reach a verdict. His retrial proceeded as a judge alone trial and resulted in a conviction for second degree murder.
4The appellant submits that his trial was unfair because he was found guilty based on a theory of liability for which he was not given sufficient notice. He also submits that the trial judge failed to apply the principles in R. v. W.(D.), , [1991] 1 S.C.R. 742.
5The following reasons explain why I would allow the appeal and order a new trial based on the first ground of appeal.
B. factual overview
1. Mr. Wapoose’s Death
6Mr. Wapoose was 32 years old when he was killed at the side of a roadway that encircles Chapples Park (the “Park”) in Thunder Bay.
7Mr. Wapoose died from multiple blunt and sharp force injuries to his head and neck. According to the pathologist, the most likely primary cause of death was “exsanguination from a deep stab wound to the neck and throat”. Mr. Wapoose had a deep, six-centimetre gaping stab wound on the left side of his neck, which entered the middle part of his throat. He suffered a skull fracture to the front of his head caused by blunt force trauma (an injury from which he might have recovered had there been no other injuries).2 The blow would likely have rendered him unconscious. In total, Mr. Wapoose suffered six stab wounds, two incised wounds, ten areas with contusions on his face and brain, two skull lacerations, a skull fracture, and four fractured ribs.
2. The Investigation
8The appellant was 18 at the time of the incident. The police interviewed him in November of 2014. The appellant was asked whether he was in the Park that night and he said, “Not that I could remember.” Later in the interview he said that “it’s not safe in Chapples”. He claimed that he was “jumped” there before many times, and that “it’s bad in there at night it’s not safe”.3 He told the police that he was with three other teenage boys that night: Luke Zoccole, Z.M.L., and Robert Carlos Bluecoat.
9The investigation went cold for a few years. The police interviewed the appellant again on May 24, 2019, when he was arrested and charged with second degree murder. The appellant made no direct admissions when speaking to the police. However, an officer asked the appellant whether, after speaking with his lawyer, he would sit down with the officer and tell him the “why” of what happened. The appellant said: “After sentencing and after everything’s said and done, then I’ll tell you. How about that? Because I would like to be able to see the outside world again. And within a reasonable amount of time.”
3. The Evidence at Trial
a. Mr. Zoccole’s Testimony
10The key evidence in the Crown’s case was the testimony of Mr. Zoccole and Ms. Tatjana Shawanamash-Ignace, the appellant’s former intimate partner.
11Mr. Zoccole was 16 years old the night Mr. Wapoose was killed, and 25 years old at trial. He testified that, around noon the day of the killing, he, Mr. Bluecoat, Z.M.L., and the appellant began drinking at the appellant’s house. In the early evening, they walked around outside. They took Mr. Bluecoat home, who was very intoxicated. Mr. Zoccole testified that he, Z.M.L., and the appellant were also “drunk” by then.
12After delivering Mr. Bluecoat home, the three of them headed back toward the appellant’s house. They walked through the Park. The appellant went to the golf course adjacent to the Park and returned with a three-foot-long pole that weighed about 30 pounds. They came across an intoxicated man, Mr. Wapoose, who was asleep against a streetlight standard. Mr. Wapoose’s backpack was nearby, but his “stuff” was scattered all over the place. The appellant and Z.M.L. gathered these belongings and put them into the backpack. The three of them walked away. But Z.M.L. suggested that they go back and steal from Mr. Wapoose.
13When they returned, Mr. Zoccole said the appellant hit Mr. Wapoose in the back of the head with the pole.4 The appellant and Z.M.L. started punching and kicking Mr. Wapoose before dragging him into a ditch. Mr. Zoccole was scared and just wanted to go home. It was dark outside and he could not see much from his position, which was about 30 metres away. There was also thick grass in the ditch that obscured his view. He claimed, however, that he could see Z.M.L. and the appellant beating Mr. Wapoose in the ditch. After the appellant and Z.M.L. emerged from the ditch, all three left. Mr. Zoccole took Mr. Wapoose’s bike with them, which he later ditched close to his home.
14Mr. Zoccole agreed that he was intoxicated at the time of the events and, combined with the passage of time, he had difficulty remembering some of what occurred that night. He acknowledged contradictions between his evidence at the appellant’s trial and his testimony at Z.M.L.’s trial. He said he was trying to fill in the gaps in his memory.
b. Ms. Shawanamash-Ignace’s Testimony
15Ms. Shawanamash-Ignace and the appellant were in a domestic relationship between September 2018 and January 2022. They have a child together. The relationship deteriorated and they split up. When she testified at the trial, she faced a charge of assaulting the appellant with a knife.
16Ms. Shawanamash-Ignace testified that the appellant made five statements to her about Mr. Wapoose’s death. He told her that he and his friends walked through the Park and “beat William while he was passed out”. At another time he told her that he hit Mr. Wapoose with a pole. He later mentioned the presence of a knife, but he did not recall “having one, using one or where it ended up”. In another conversation, the appellant remembered “hitting him and stabbing him”. She later qualified this answer by saying that the appellant did not remember “actually doing” the stabbing, but said he also told her he was “coerced to do it”.
17There were serious problems with Ms. Shawanamash-Ignace’s testimony. She attended the appellant’s original bail hearing and the preliminary inquiry. She initially denied attending or observing the appellant’s first trial or seeing any disclosure relating to the appellant. On cross-examination, she admitted to reading his disclosure and reading news coverage of the appellant’s earlier trial. Ms. Shawanamash-Ignace also agreed that, if believed, her evidence increased the likelihood of the appellant being convicted and incarcerated, which would assist her in any custody dispute over their child.
18The appellant did not testify and called no evidence in his defence. He relied on the statement he gave to the police on November 4, 2014, in which he denied being in the Park that night.
C. The positions of the parties at trial
1. The Position of the Crown
19The Crown’s position at trial was that the appellant could not be found guilty of second degree murder unless the Crown proved that the appellant stabbed Mr. Wapoose in the neck. The Crown conceded that, standing alone, Mr. Zoccole’s evidence could not satisfy this burden; Ms. Shawanamash-Ignace’s testimony was the only evidence supporting the submission that the appellant inflicted the fatal stab wound. Her evidence was required to prove guilt for second degree murder. The Crown acknowledged the shortcomings of her evidence, but submitted that her obvious reluctance to testify against the appellant, as well as the progression of incriminating disclosures she detailed, lent a “ring of truth” to her evidence.
20In the alternative, the Crown submitted that the evidence of Mr. Zoccole could support a conviction for manslaughter under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46, based on the common unlawful purpose of the appellant and Z.M.L. assaulting Mr. Wapoose.
2. The Position of the Defence
21Defence counsel submitted that both Mr. Zoccole and Ms. Shawanamash-Ignace provided unreliable evidence. Ms. Shawanamash-Ignace’s credibility was also seriously in issue. He further submitted that the Crown failed to prove that the appellant was guilty of second degree murder or manslaughter, or that he was even in the Park that night.
3. The Trial Judge Invites Further Submissions
22After hearing final submissions, the trial judge reserved his decision. A few months later, he requested that the parties appear before him again. He made the following request:
In closing submissions, the Crown relied on Section 21(2) of the Criminal Code common intention as a basis upon which the accused could be found, could be found guilty, but did not accept the evidence of [Ms. Shawanamash-Ignace]. The Crown made only a passing reference to Section 21(1)(a) of the Criminal Code as a route to a finding of guilt. Section 21(1)(a) of the Criminal Code is commonly referred to as co-principal or joint principal liability. The closing submission of the defence counsel made no reference to Section 21(1)(a) of the Criminal Code. Prior to finalizing my judgment, I wish to provide the accused an opportunity should he choose to do so to make additional submissions on the application of Section 21(1)(a) of the Criminal Code for joint or co-principal liability as it applies to the evidence heard in this trial. The accused did not call evidence so the Crown will not be asked for submissions in reply. Mr. Joseph, do you wish to make additional submissions on behalf of the accused in regards to Section 21(1)(a) of the Criminal Code? [Emphasis added.]
23Trial counsel accepted the trial judge’s invitation. The case was adjourned for further submissions.
24When the case returned to court roughly two months later, trial counsel made brief submissions about the application of ss. 21(1) and (2) of the Criminal Code. At the conclusion of these submissions, the trial judge asked for further assistance:
I specifically requested submissions in regard to s. 21(1)(a) and co-principal or joint principal liability. You’ve made only passing reference to that. Do you wish to make any further submissions on s. 21(1)(a) and co-principal liability as it may apply in this case?
25Trial counsel made general submissions on the application of co-principal liability and referred the trial judge to some of the relevant authorities, including the Supreme Court of Canada decision in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198. He ended his submissions by saying that, if the trial judge accepted the evidence of Mr. Zoccole, he could find that the appellant “was a co-principal to an assault, a robbery, perhaps even an aggravated assault, but my position is that you can’t go further in finding him as a co-principal with respect to the manslaughter.” He made no mention of the appellant being found guilty of murder. When counsel asked if he could provide any further assistance, the trial judge said, “No. That’s fine”.
D. the trial judge’s reasons
26The trial judge subsequently delivered written reasons in which he found the appellant guilty of second degree murder.
27The trial judge carefully examined the evidence of Mr. Zoccole and Ms. Shawanamash-Ignace. He observed that the cross-examination of Ms. Shawanamash-Ignace was “thorough and effective”. He concluded that he could place no weight on her evidence.
28The trial judge took a different view of Mr. Zoccole’s evidence. Based on those aspects of his evidence that he accepted, the trial judge found that the Crown had proved beyond a reasonable doubt that the appellant was a participant in the beating and stabbing of Mr. Wapoose that caused his death.
29The trial judge outlined the shortcomings in Mr. Zoccole’s evidence, such as his intoxication, the passage of time, and his poor vantage point during the attack on Mr. Wapoose. However, Mr. Zoccole was not shaken on his evidence that the appellant hit Mr. Wapoose’s head with a pole. The trial judge was not concerned with Mr. Zoccole’s mistake in saying that Mr. Wapoose was struck in the back of his head, instead of the front. The trial judge also accepted his evidence that both Z.M.L. and the appellant punched and kicked Mr. Wapoose on the side of the road before dragging him into the ditch. The trial judge reached the following conclusions based on Mr. Zoccole’s evidence:
The evidence which I accept does not shed light on who stabbed Mr. Wapoose. Mr. Zoccole testified that he never saw anyone carrying a knife. He provided no evidence that he witnessed a stabbing. However, I accept the Crown’s submission that Mr. Wapoose was in fact stabbed during the attack by either the accused or Z.M.L., who jointly descended upon him. I am not left in reasonable doubt about that.
I am unable to determine on the evidence in this case whether it was the accused or Z.M.L. who inflicted the fatal stab wound. However, I find that it has been proven beyond a reasonable doubt that it was either the accused or Z.M.L. who did so, and that it occurred during their assault on Mr. Wapoose that night.
30The trial judge concluded that the proper route to liability was through the application of s. 21(1)(a) of the Criminal Code, based on co-principal liability. After reviewing R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, leave to appeal refused, [2010] S.C.C.A. No. 459, R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, and Pickton, the trial judge found that the appellant and Z.M.L. jointly assaulted Mr. Wapoose as co-principals. He also made the following findings:
I am further satisfied that this group assault caused the death of Mr. Wapoose. I further find that the actions of the accused in furtherance of this group assault, including but not limited to him striking Mr. Wapoose on the head with a heavy pole with sufficient force to fracture his skull, were a significant contributing cause to all injuries sustained by Mr. Wapoose and which caused his death.
Applying the foregoing principles and having found that the accused participated as a co-principal in the group assault on Mr. Wapoose that caused his death, it is not required that a finding be made as to whether Z.M.L. or the accused inflicted the fatal stab wound to determine the accused’s culpability for second-degree murder or manslaughter pursuant to s. 21(1)(a) of the Code.
31In addressing the mens rea for second degree murder as a co-principal under s. 21(1)(a), the trial judge relied on R. v. Abdulle, 2020 ONCA 106, 149 O.R. (3d) 301, leave to appeal refused, [2020] S.C.C.A. No. 156. In that case, four young people kicked and beat an older man, who was ultimately stabbed to death. It was unclear who inflicted the stab wounds. Three of the four accused were found guilty of second degree murder.
32This court dismissed the appeals from conviction in Abdulle. The court held that co-principal liability may be established even if an accused person does not use a knife, or have knowledge that someone else would or did use a knife, as long as the trier of fact is satisfied that the accused participated in the concerted attack with one of the two intentions for murder in s. 229(a) of the Criminal Code: at para. 27. Applying these principles to the evidence in this case, the trial judge concluded:
In the circumstances of this case and based on my findings that the accused and Z.M.L. participated in the beating, kicking, and punching of an incapacitated and badly injured victim, and based on the nature of the injuries suffered by the victim, I am satisfied beyond a reasonable doubt that the accused subjectively intended to cause Mr. Wapoose bodily harm that he knew was likely to cause his death and that he was reckless whether death ensued or not. It is not necessary for me to find as a fact that the accused either used a knife or that the accused knew that his co-assailant was using a knife. [Emphasis added.]
E. analysis
1. Introduction
33As noted above, there are two issues on this appeal: whether the appellant received sufficient notice of the route to liability ultimately relied on by the trial judge, and whether the reasons disclose an error in the application of the burden of proof. I need only address the first ground of appeal.
34As I will elaborate below, defence counsel was not operating on an adequate understanding of the trial judge’s query as to liability. The trial judge did not specifically say that he was considering a conviction for murder based on co-principal liability. The appellant’s potential liability for murder under s. 21(1)(a) never arose during the discussions of co-principal liability initiated by the trial judge. It was clear from the record that trial counsel thought that the discussion was about manslaughter.
35The trial judge also failed to advise counsel that he might reject the Crown’s concession that guilt for second degree murder could not be established on the basis of Mr. Zoccole’s evidence standing alone. The rejection of this concession was critical to the trial judge’s conclusion on co-principal liability for murder.
36The confusion that resulted from these circumstances, whereby trial counsel did not have the opportunity to make focused submissions on why the appellant should not be found guilty of murder based on co-principal liability, combined with the rejection of a crucial Crown concession without notice, amounted to a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code.
2. Failure to Give Sufficient Notice
37It is open to a trial judge to decide a case based on a different theory of liability than that advanced by the Crown: R. v. Groot (1998), , 41 O.R. (3d) 280 (C.A.), at pp. 287-88, aff’d , [1999] 3 S.C.R. 664; Pickton, at para. 19. However, trial fairness requires that an accused person must be put on notice of the alternative route of liability in order that they may make full answer and defence.
38In R. v. Ranger (2003), , 67 O.R. (3d) 1 (C.A.), the trial judge instructed the jury on a route to conviction that the Crown did not advance, and which the defence did not know would be made available. In allowing the appeal from conviction, Charron J.A. (then a member of this court) said, at para. 162, that the appellant was prejudiced by “the trial judge’s failure to notify counsel of his intention to charge the jury on this additional theory of liability before counsel’s final address to the jury.”
39Similarly, in R. v. R.H., 2022 ONCA 69, 78 C.R. (7th) 405, Nordheimer J.A. wrote, at para. 23:
it is fundamentally unfair to convict an accused person on a basis of which they are unaware and which they have not had an opportunity to respond. …At the very least, when the trial judge became aware that he might convict on that basis, he ought to have alerted counsel to that possibility and asked for their submissions.
See also R. v. Levely, 2022 ONCA 632, at para. 58; R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, at paras. 64-67.
40This court has also recognized that, when counsel is put on notice of a new theory of liability, in addition to making further submissions, re-opening the case may overcome potential prejudice. But when a new theory is introduced at a very late stage of the trial, re-opening may be an inadequate and unrealistic remedy: see R. v. Lai, 2022 ONCA 344, 81 C.R. (7th) 394, at paras. 13-14.
41The Crown submits that sufficient notice was provided, and that there was no misapprehension as to the nature of the trial judge’s queries about co-principal liability. The record does not support the Crown’s position.
42It is apparent from the record that trial counsel always thought he was being asked to respond to the Crown’s position on co-principal liability, which was restricted to manslaughter. This was first demonstrated at the time the trial judge requested further submissions. Trial counsel immediately said that he would order a transcript of the Crown’s final submissions.
43Moreover, when counsel returned to make further submissions, trial counsel commenced his submissions by saying:
So, Your Honour, to be clear, we’ve been asked to respond to the Crown’s position on co-party liability. …The Crown in their brief submissions about party liability indicated that it was open to this court to find Jonathan Massicotte guilty of manslaughter on a theory of co-party liability under s. 21(1)(b) or (c). I pause here to state that the Crown’s theory in this regard relates only to the lesser and included offence of manslaughter and not second degree murder. [Emphasis added.]
44From this passage, it is clear that defence counsel sought clarification, confirming that he was being asked to make submissions about co-principal liability for manslaughter. The trial judge did not correct trial counsel on this point. As noted in para. 24, above, when trial counsel concluded his initial submissions that day, the trial judge expressed some dissatisfaction and asked counsel to focus on co-principal liability under s. 21(1)(a). But he made no mention of murder as opposed to manslaughter. The confusion continued.
45Respectfully, the trial judge should have been more specific in what he was asking of counsel by clarifying that he was seeking counsel’s assistance on co-principal liability for murder. It would also have been helpful had the trial judge asked counsel for submissions on the applicability of leading cases on the issue, such as the ones that he ultimately ended up relying upon in his reasons (e.g., Abdulle). However, I acknowledge that it is primarily the responsibility of counsel to provide trial judges with binding appellate authority.
3. Rejection of the Crown’s Concession Without Notice
46The conviction for murder did not flow solely from the new theory of liability introduced by the trial judge. It went hand-in-hand with the trial judge’s rejection of the Crown’s concession that it could not establish liability for murder on the basis of Mr. Zoccole’s evidence standing alone. It may have been that the Crown’s concession was based on an imperfect understanding of co-principal liability as it related to murder. But this is unclear because the Crown was not invited to participate in this discussion.
47What should happen when a trial judge considers rejecting an important Crown concession on liability in a criminal trial? I find the approach prescribed in R. v. White, 2019 BCCA 461, to be helpful. Mr. White was charged with a number of offences that resulted from a vehicle stop, including possession of fentanyl for the purpose of trafficking. In final submissions, the Crown conceded that it could not prove that the fentanyl was possessed for the purpose of trafficking and indicated it was proceeding on the lesser offence of simple possession. Without giving notice to the parties, the trial judge found the appellant guilty of possessing fentanyl for the purpose of trafficking (and other offences).
48The Crown agreed that the appeal should be allowed and the verdict substituted by one of simple possession. In acceding to this joint request, Abrioux J.A. provided the following helpful summary of the applicable principles, at paras. 36-37:
While I accept that it was open to the judge to reject the Crown's concession and reach his own conclusions concerning whether the fentanyl was possessed for the purpose of trafficking regardless of the position taken by the Crown, in my view, if he was not prepared to accept the Crown's concession, he was obliged to advise counsel of this and give the defence an opportunity to address the point. A failure to do so may amount to a reversible error: [R. v. Whincup, 2011 BCCA 520, 314 B.C.A.C. 75, at paras. 9-11; R. v. Huon, 2010 BCCA 143, at para. 6; R. v. Poole, 2014 BCSC 102, 63 M.V.R. (6th) 80, at para. 10].
To state the test in slightly different terms, trial fairness requires that a full and fair opportunity be given to both parties to address or make submissions on a point of fact or law that may be troubling the court: [R. v. Al-Fartossy, 2007 ABCA 427, 425 A.R. 336, at para. 24; R. v. Grewal, 2018 ONSC 5325, 40 M.V.R. (7th) 253 (S.C.), at paras. 60, 68; R. v. Fraillon (1990), , 62 C.C.C. (3d) 474 (Que. C.A.), at p. 476]. This is especially the case where the court rejects a concession made by a party, and the opposing party does not address it believing that it is not in issue. [Emphasis added.]
49In this case, given that guilt for murder hinged on the rejection of a critical Crown concession, the trial judge should have alerted both parties to this possibility. The Crown should have been invited to make submissions. There may have been reasons for the concession that were not apparent to the trial judge. As noted above, when giving defence counsel the opportunity to make further submissions on s. 21(1)(a) of the Criminal Code, the trial judge said: “The accused did not call evidence so the Crown will not be asked for submissions in reply.” I can discern no legal basis for this restriction. Had it been able to make submissions, the Crown may have been able to persuade the trial judge not to reject its concession. The Crown’s participation may have brought greater clarity to the trial judge’s exchanges with defence counsel. But this did not happen.
4. Prejudice Amounting to a Miscarriage of Justice
50As noted above, the Crown submits that sufficient notice was provided and defence counsel did not misunderstand the nature of the trial judge’s queries. Alternatively, the Crown submits that, even if defence counsel was labouring under a misapprehension and would have made different submissions at trial, such submissions would not have been relevant or helpful to the appellant’s case. I do not accept this submission.
51As counsel for the appellant submits, trial counsel may well have taken a different approach had he been aware of the trial judge’s specific concerns. He could have made submissions on the application of Abdulle and related cases to the facts of this case. He might have made submissions on whether the Crown proved either of the intents for murder in ss. 229(a)(i) or (ii) of the Criminal Code beyond a reasonable doubt. This may have involved more extensive submissions on the role of the appellant’s intoxication that evening. Indeed, little was said about intoxication during trial counsel’s submissions. This made sense because, given what trial counsel believed he faced at the time, intoxication would not have had any legal significance in the context of manslaughter.
52In short, the appellant was prejudiced by the manner in which his trial was conducted. He was not put on sufficient notice of how he might be found guilty of murder. His counsel was deprived of a meaningful opportunity to respond. In my view, this amounted to a miscarriage of justice.
5. Conclusion
53While it may not have been apparent in the moment, it is now clear that confusion arose at the end of the appellant’s trial. In the mistaken belief that the appellant could not be found guilty of murder without proof that he wielded the knife, the Crown conceded that it could not prove his guilt on the basis of Mr. Zoccole’s evidence alone. The trial judge believed that Mr. Zoccole’s evidence could establish the appellant’s guilt, but this conclusion was based on a different theory of liability and required rejecting the Crown’s concession. Both counsel should have been put on clear notice of these related issues – the rejection of the concession and the new theory of liability. That they were not amounted to a miscarriage of justice.
F. disposition
54I would allow the appeal and order a new trial.
Released: July 20, 2026 “G.T.T.”
“Gary Trotter J.A.”
“I agree. Sossin J.A.”
“I agree. J. Copeland J.A.”
Footnotes
- The identity of a party related to this appeal (Z.M.L.) is subject to a publication ban pursuant to s. 110 of the Youth Criminal Justice Act, S.C. 2022, c. 1.
- In an Agreed Statement of Facts, it was agreed that Mr. Wapoose did not suffer any injuries to the back of his skull. The relevance of this agreed fact will become apparent during the review of the evidence below.
- In his reasons, the trial judge noted that it was not in dispute that the Park is generally considered to be unsafe at night.
- As noted above, the evidence of the pathologist was that Mr. Wapoose was struck in the front of his head.