COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kennedy, 2016 ONCA 879

DATE: 20161122

DOCKET: C60777 and C59802

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Kennedy and Troy Wolfe

Appellants

Peter Copeland, for the appellant, Joseph Kennedy

Dan Stein, duty counsel for the appellant, Troy Wolfe

Andreea Baiasu, for the respondent

Heard: June 9, 2016

On appeal from the conviction entered on November 27, 2013 and the sentence imposed on December 4, 2014 by Justice D. Grace of the Superior Court of Justice, sitting with a jury.

Benotto J.A.:

[1] Joseph Kennedy and Troy Wolfe were charged with a number of offences arising out of a robbery of a pharmacy. A jury found them guilty of robbery; having their faces masked with intent to commit an indictable offence; assault with an imitation handgun; and using an imitation handgun in committing an indictable offence. Mr. Kennedy was also convicted of resisting a police officer in the execution of his duty. They appeal all these convictions.

[2] The Crown appeals Mr. Kennedy’s sentence on the basis of fresh evidence which discloses that the Canadian Police Information Centre (CPIC) database relied on by the Crown during sentencing submissions was out of date.

[3] For the reasons that follow, I conclude that the trial judge erred in his instructions to the jury with respect to party liability. I would allow the appeal on the joint convictions as well as those relating to the disguises. I would dismiss the appeal of Mr. Kennedy’s conviction for resisting arrest. In light of my conclusion, it is not necessary to address the Crown’s appeal of Mr. Kennedy’s sentence.

(1) Background

[4] Mr. Kennedy and Mr. Wolfe were charged jointly with robbery (stealing while armed with an imitation handgun), assault with a weapon (the imitation handgun), and using an imitation firearm in the commission of an indictable offence: Criminal Code ss. 344(1)(a), 267(a), 85(3). They were charged individually with having their faces masked with the intent to commit an indictable offence: s. 351(2). Mr. Kennedy was also charged with resisting a peace officer in the execution of his duties: s. 129(a). The jury found the men guilty of all charges.

[5] The case against both appellants was entirely circumstantial. Two masked men entered the AIM Pharmacy in London, Ontario just before 7 pm on February 24, 2012. Video evidence led at trial showed that one man wore a white sweatshirt with lettering on the upper chest that said “New York Superfly” and carried a black hockey-style duffel bag. He also wore a pair of Nike sneakers with a black Nike “swoosh” emblem. The second man wore a dark leather coat with a blue shirt underneath and carried what looked like a handgun. An eyewitness described both men as wearing light wool balaclavas. Both men wore gloves.

[6] On entering the store, the man in the white sweatshirt carrying the black duffel bag jumped over the counter and began searching the drawers. The man in the black leather jacket with the handgun hit the pharmacist. Within about a minute, the two men left the pharmacy with stash in hand including the cash register.

[7] An independent witness walking in the area observed a black Lincoln run a stop sign around 6:30 p.m. and testified that about a minute later the city “lit up” with police.

[8] In the days leading up to the robbery, Mr. Kennedy, Mr. Wolfe and two other men had been under police surveillance. Mr. Kennedy’s residence at 439 South Street was under surveillance. On the afternoon of the robbery, a man wearing a white hoodie was seen attaching a licence plate to the rear of a black Lincoln parked in the driveway of 439 South Street. Mr. Kennedy was seen getting into the passenger side of the black Lincoln shortly afterward. He was dressed in a dark jacket, a white hoodie and a blue shirt. Later that afternoon, three men were observed getting into a black Lincoln parked near 370 Pond Mills Road (it is unclear whether this was the same Lincoln seen parked in the driveway of Mr. Kennedy’s residence). The driver was of First Nations background and wore a dark jacket and a white hoodie. The black Lincoln was followed to various locations until it entered a townhouse complex. Police did not see the vehicle leave the complex. Shortly before 7 p.m., police received information of the robbery at the AIM Pharmacy.

[9] An officer then entered the parking area of the townhouse complex in search of the black Lincoln but could not find it. About half an hour later, an officer observed an unplated black Lincoln pull up and park in the parking lot of 370 Pond Mills Road. Mr. Wolfe was believed to live at this address with his girlfriend. At that time, Mr. Kennedy was seen in the immediate vicinity of 370 Pond Mills Road, but departed in a taxi. Another unidentified male was seen leaving 370 Pond Mills Road on foot about 15 minutes later, wearing a dark jacket and a white hoodie.

[10] A search warrant was executed on Unit 77, 370 Pond Mills Road. The search resulted in the seizure of a black hockey bag with the same logo as that seen in the robbery video, a black ski mask, three leather coats and a pair of Nike running shoes. The ski mask found at 370 Pond Mills Road had a majority DNA profile matching Mr. Wolfe. A search of 439 South Street did not generate any evidence.

[11] Police located a black Lincoln vehicle at a third address. Inside was a blue balaclava, a white sweatshirt, a black glove and a long thin white paper. The sweatshirt and balaclava contained numerous DNA profiles and were not suitable for DNA comparison. The glove contained a majority profile matching Mr. Kennedy. It is unclear whether this was the same black Lincoln seen running the stop sign by the independent witness. On arrest, Mr. Kennedy was wearing a white hoodie with the words “New York Superfly” written on it. The handgun and cash register were never located.

(2) The Charge to the Jury on Party Liability

(a) The Instruction on the Jointly Charged Counts

[12] Mr. Kennedy and Mr. Wolfe were jointly charged on three counts:

(1) Stealing while armed with an imitation handgun;

(2) Assault with an imitation handgun;

(3) Using an imitation handgun while committing an indictable offence.

[13] Early in his instructions, the trial judge set out the facts which the parties had agreed on. These did not include any admissions with respect to the use or knowledge of a weapon or imitation weapon by either appellant.

[14] After reviewing general principles and concepts with the jury, the trial judge set out the elements of the offence of robbery while armed as follows:

For you to find Joseph Kennedy or Troy Wolfe guilty of robbery, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

a. That the defendant under consideration, and I want to reemphasize you will give separate consideration to Joseph Kennedy and Troy Wolfe, stole something from [the complainant], and;

b. The defendant under consideration, again you give separate consideration to Joseph Kennedy and Troy Wolfe, were armed with an imitation of an offensive weapon, alleged to be an imitation handgun, at the time of the stealing.

[15] The trial judge reviewed the evidence of the robbery and explained the elements of the offence. In addressing the second element, he instructed the jury on party liability as follows:

The Crown alleges that the defendants committed this offence with which they have been jointly charged together. Under our law, a person may commit an offence alone or together with another.

In this case, one of the intruders carried a large black bag and the other carried something resembling a handgun. The Crown alleges that those individuals had different parts to play in the robbery.

Where a criminal offence is committed by one or more persons, each may play a different part. If they are acting together or one of them is acting together with a third person as part of a joint plan or to commit an offence, each may be found guilty of it even if they have different roles.

If you find that the Crown has proven beyond a reasonable doubt that the defendant under consideration, either Mr. Kennedy or Mr. Wolfe, was one of the intruders, it does not matter if he was the intruder carrying the bag or the item resembling a handgun.

What must be proven is that the defendant under consideration was one of the intruders and that either he or the other intruder was equipped with or had in his possession an imitation handgun at the time of the theft from [the complainant]. [Emphasis added.]

[16] When instructing the jury on the jointly charged count of assault with a weapon, the trial judge gave the same explanation of party liability as previously. He then described all the elements of the offence and provided the following instruction on the question of whether a weapon or imitation weapon was involved in the assault:

A weapon or imitation weapon is involved in an assault if the defendant under consideration or the other intruder carried, used or threatened to use it in intentionally applying force to [the complainant]. You do not all have to agree on how the weapon or imitation weapon was involved, as long as each of you is satisfied beyond a reasonable doubt that the assault involved a weapon in one of the ways I have described for you. [Emphasis added.]

[17] Next, the trial judge instructed on the jointly charged count of use of an imitation firearm to commit an indictable offence. He repeated his earlier instruction on party liability and said the following on the question of whether a firearm was used in committing the offence:

Crown counsel does not have to prove that the defendant under consideration or the other intruder fired a firearm. Nor does Crown counsel have to prove that the defendant under consideration or the other intruder injured or meant to hurt anybody. The imitation firearm need not be pointed at anybody, although to point it at another person is to use it.

To satisfy this requirement, Crown counsel must prove beyond a reasonable doubt, at least, that the defendant under consideration or the other intruder had an imitation firearm with him, that he pulled it out and held it in his hand or displayed it to intimidate [the complainant] or another person. No more is required, but nothing less will do. [Emphasis added.]

[18] Missing from the jury charge was any instruction that, to find Mr. Kennedy or Mr. Wolfe guilty of the jointly charged offences, the jury had to be satisfied either that he was the gun-wielding intruder or that he knew the other intruder had a weapon that would be used in the course of the robbery.

[19] During deliberations, the jury asked following question:

If one person or the other person had a firearm and the other person did not have a firearm, are both people guilty of having a firearm?

[20] The trial judge answered the question by repeating the portion of the charge set out above.

(b) The Parties’ Positions

[21] The appellants submit that the trial judge’s jury instructions on party liability for the use of a firearm were fatally flawed. In particular, they argue, the jury had to be told that the non-gun-wielding intruder could only be liable as a party to the firearm-related offences if (i) he did something to assist or encourage the intruder with the gun and (ii) he knew the other intruder had a gun and was going to use it in committing the offence. The appellants submit that they never conceded that they were liable as joint principals, or that they knew a firearm or an imitation would be used.

[22] The Crown argues that defence counsel conceded party liability at trial, agreed to the relevant portions of the jury charge at a pre-charge conference and chose not to make party liability an issue but to focus on identity instead. The Crown argues that, given the way the offence was carried out, as captured on video, there was no air of reality to a submission that one intruder did not know that the other had a firearm. While it might have been preferable for the trial judge to include a charge on party liability with respect to the firearm, in the circumstances, it was not necessary.

(c) Analysis

[23] The liability of parties to an offence is governed by s. 21 of the Criminal Code. Here, the case for the Crown was that the appellants were joint principals under s. 21(1)(a). This section applies where two or more people actually commit an offence. It also applies where they “together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence”: R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 181; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63. To be liable as principals to the jointly charged offences, therefore, it was necessary that the appellants had the requisite intention.

[24] The trial judge’s instructions on party liability were not correct. On the evidence, only one of the intruders had a weapon, and it was not unequivocal who that was. Nowhere in the instruction does the trial judge instruct the jury that to find the non-gun-wielding intruder guilty of the offences as charged, it must find that he knew the other intruder had the imitation firearm: R. v. Koroma, 2012 ONSC 4397, at paras. 88-90; R. v. Chang, [2007] O.J. No. 5787 (S.C), at paras. 44-46, aff’d 2009 ONCA 564, at para. 4.

[25] The importance of instructing the jury on this knowledge element was addressed by this court in R. v. Watson, 2008 ONCA 614, 240 O.A.C. 370. In Watson, the appellants accompanied a friend to a clothing store just after he had purchased garbage bags and gloves. The friend was carrying a loaded firearm. The three robbed the store, but the appellants claimed they were not aware the friend had a firearm until he pulled it out in the course of the robbery. On appeal, the appellants argued that the jury charge was flawed: the jury was not told that it could only find the accused guilty of armed robbery if satisfied that the accused had participated in the theft knowing that the friend had a firearm. In dismissing the appeal, this court held, at para. 40, that while the trial judge’s instructions could have been clearer, taken as a whole they were “adequate to ensure that the jury would not convict unless they were satisfied that the appellants participated in a theft at a time when they knew [the friend] had a gun”. The instructions on aiding and abetting and the summary of the parties’ positions also made it clear that to convict either accused for offences involving a firearm carried by a third person, that accused had to have known the third person had a firearm during the course of the robbery.

[26] In this case, the jury would not have been aware that it had to be satisfied that each accused either carried the firearm or knew the other was in possession of a firearm. It is apparent from the question posed by the jury that it was unclear what would be required to find the non-gun-wielding intruder guilty of an offence involving a firearm. The re-charge, unfortunately, did not clarify this point.

[27] For these reasons, I would allow the appeal on the three jointly charged counts, all of which involve the use of the imitation firearm. The charges relating to the disguise rest on the commission of an indictable offence. I would therefore allow the appeal in relation to the disguise charges as well.

(3) Resisting a Peace Officer in the Execution of his Duties

[28] Mr. Kennedy was convicted of resisting arrest. The evidence discloses that, at the time of his arrest, the following took place:

• He was instructed to keep his hands above his head, but reached into the pocket of his leather jacket and pulled out and lit a cigarette;

• He was instructed to keep his back turned to the officer speaking to him, but he instead turned around periodically while cuffed at the rear;

• He was instructed to lift his jacket, but instead took it off and set it on the car;

• He removed his sweatshirt and placed it on the car;

• One officer also stated that Mr. Kennedy tried to pull away.

[29] During the arrest, both officers kicked one of Mr. Kennedy’s legs and brought him to a prone position on the ground.

[30] In instructing the jury on this charge, the trial judge explained that to “resist” is “to strive against, oppose, try to impede or prevent, fail to comply.” Mr. Kennedy was convicted of the offence.

[31] In order to prove a charge of resisting arrest, the actions of the accused must constitute “active resistance” and not “passive resistance”. In R. v. Alaimo (1974), 1974 CanLII 1552 (ON CJ), 27 C.C.C. (2d) 491 (Ont. C.J.), the court concluded, based on several dictionary definitions, that the offence requires a direct confrontation between the subject and the police and at least a minimal degree of force exercised. Black’s Law Dictionary states that the word “properly describes an opposition by direct action and quasi forcible means”.

[32] In R. v. Stortini (1978), 1978 CanLII 2552 (ON CJ), 42 C.C.C. (2d) 214 (Ont. C.J.), the accused was advised that he was under arrest on an outstanding warrant. He refused to accompany the officers. As a result, the officers lifted the accused up under each arm and carried him to the police vehicle. He did not exert any direct physical force on the officers. The trial judge stated:

[T]he word resist is more properly descriptive of acts of opposition to the efforts of the officer demonstrated by direct activity of a physical sort on the part of the accused. He must be shown to have employed some degree of force. In other words, the conduct of the accused must amount to more than what has in the past been referred to as passive resistance, that is, resistance without some degree of force or violence, regardless of how minimal, before it can be said that the accused has committed the offence of resisting. His conduct, without such positive resistance, may very well amount to obstruction of the officer, but it does not, in my opinion, amount to resistance under the section.

[33] Similarly, in R. v. Bentley, [2003] Q.J. No. 16091 (C.S.), the accused was unresponsive when directed to remove the keys from the ignition of his car and exit the vehicle. After repeating the request and gaining no compliance, police forcefully removed the accused from his vehicle. During his removal, he placed his hands firmly on his steering wheel as an indication that he had no intention of leaving the car. At para. 33, the court interpreted “passive resistance” as the “absence of any degree of physical resistance” and held that it did not constitute resistance for the purposes of s. 129 of the Criminal Code. However, the court held that the accused’s acts did not constitute passive resistance as “he use[d] physical force to prevent his removal”: para. 51. In the result, the accused was acquitted as he had been charged with obstruction, not with resisting.

[34] In R. v. Marcocchio, 2002 NSPC 7, 213 N.S.R. (2d) 86, at para. 113, the court reached a similar conclusion:

Acts of positive physical resistance amounting to so-called ‘forcible means’ offered by an accused to a police officer in the execution of his duty constitutes the sort of resistance that is contemplated by s. 129 of the Criminal Code. On the other hand, conduct which is often referred to as ‘passive resistance’ which is to say resistance without some degree of applied force, is generally found to be outside the scope of s. 129 and not punishable by criminal sanction.

[35] In R. v. M.L.M., 2007 ABCA 283, 52 M.V.R. (5th) 52, the accused was detained by officers while seated in his car. He failed to comply with orders to put his hands on the dashboard and instead started the vehicle, put it in reverse and stepped on the gas. The appellant argued that, while his conduct amounted to non-cooperation, it did not constitute resistance because there was no direct physical confrontation with the officers. In dismissing the appeal, at para. 9, the court concluded that the accused’s actions were more than passive resistance and constituted an “active use of force” against the peace officer.

[36] In my view, the offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance. While this case is at the very low end of the scale of acts of resistance, there was evidence upon which a properly instructed jury could find Mr. Kennedy guilty of the offence. The evidence suggested that he repeatedly turned his body during his arrest. There was also evidence from one officer that he had pulled away. In my view, the jury was entitled to conclude that these acts amounted to active resistance.

[37] I would therefore dismiss the appeal from Mr. Kennedy’s conviction for resisting arrest.

Disposition

[38] I would allow the appeal and set aside the convictions on the joint counts and the disguise charges. Because there is evidence which could support the convictions, the proper disposition is to order a new trial. However, since Mr. Kennedy has served his sentence and Mr. Wolfe has served a substantial portion of his sentence, I doubt that the interests of justice require a new trial. I would dismiss Mr. Kennedy’s appeal of his conviction for resisting arrest.

Released: November 22, 2016

“M.L. Benotto J.A.”

“I agree K. Feldman J.A.”

“I agree B.W. Miller J.A.”