Court of Appeal for Ontario

Date: 2022-03-29 Docket: C67096 & C68914

Before: Simmons, Miller and Nordheimer JJ.A.

Parties

BETWEEN Her Majesty the Queen Respondent

and

Elias Akhi Appellant

AND BETWEEN

Her Majesty the Queen Respondent

and

Jezreel Moxam Appellant

Counsel

Chris Rudnicki and Theresa Donkor, for the appellant Elias Akhi Mark C. Halfyard and Chloe Boubalos, for the appellant Jezreel Moxam Michael Fawcett, for the respondent

Heard: March 24, 2022 by video conference

On appeal from the convictions entered by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury, on February 12, 2019.

Reasons for Decision

[1] Elias Akhi and Jezreel Moxam appeal from their convictions for robbery, assault with a weapon, and other offences arising out of a home invasion robbery that occurred on September 28, 2016. At the conclusion of the hearing, we allowed the appeal and ordered a new trial for reasons to follow. We now provide our reasons.

[2] On September 28, 2016, a woman was abducted from her home at gunpoint. The woman lived in a home in London with her two daughters, her boyfriend, and her boyfriend's brother. Her boyfriend and his brother were drug dealers.

[3] On the night in question, two men entered the woman’s home and tied her up along with the two brothers. These two men were later identified as Azizullah Hadi and the appellant, Moxam. The men demanded drugs, money, and valuables. One of the men pistol-whipped her boyfriend. When no drugs were found, they threatened to take the children. Ultimately, the woman was blindfolded and taken to a car driven by a third man. The three men drove her to an apartment building, in the apparent belief that drugs would be found there. They met another vehicle (the “second vehicle”) occupied by three other men. One of the men from the second vehicle, William Pieszchala, opened the door to the building. Hadi and the woman went to a unit on the second floor. When no one answered the door, they went back downstairs where Moxam gave the woman money for a phone call and told her not to remove her blindfold until after the men had left.

[4] Following the incident, Pieszchala approached the police and provided a statement concerning his involvement in the incident. Among other things, Pieszchala alleged that Akhi was in the second vehicle and that he not only forced Pieszchala to participate in the offences at gunpoint but also gave directions to Hadi and Moxam concerning carrying out the offences over the phone. The police eventually charged five individuals with various offences. Two of those individuals subsequently had their charges withdrawn. After Hadi pleaded guilty, the trial proceeded only as against the appellants.

[5] The appellants raised a number of grounds of appeal, some in common and some separately. We need only address one that is common to both appellants and that involves serious errors in the instructions that were given to the jury by the trial judge.

[6] This case was complicated by two principal factors. One was that there were two accused. The other, and more significant, complicating factor was that the information initially contained 26 different counts. Some counts related to individual accused and other counts related to accused charged jointly. The fact that Hadi resolved his case led to there being a reduction in the number of counts, but it still required the jury to be instructed on 14 counts.

[7] Further, the instructions given to the jury included not only instructions on liability as principals, but also instructions on liability as parties, either as aiders under s. 21(1)(b) or common intention under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46. Unfortunately, in attempting to address all of these moving parts, the jury instructions became very confused.

[8] By way of example, the trial judge adequately set out the requirements for common intention under s. 21(2) very early in her instructions. However, much later, when she came to the actual counts that the jury had to decide, she moved back and forth between common intention, aiding, and joint principals, all without adequately delineating between the three. Indeed, she generally failed to delineate which counts might properly attract liability for which accused on which basis. Further, in instructing on common intention, the trial judge failed to clearly set out which offences were ones that the accused had agreed to commit, and which offences were ones that the accused knew, or should have known, one of the other participants would probably commit.

[9] Adding to the confusion in this regard is the fact that while the trial judge initially told the jury that the two appellants had to be treated separately, in dealing with the various counts where they were jointly charged, which were 11 of the 14 counts, she referred throughout to Akhi “and/or” Moxam. This conjunction failed to maintain the separateness that was required when the jury was considering the question of guilt respecting each appellant. Because Akhi was never in the house, the avenues of liability for him were often distinct from those available for Moxam who was. While it may somewhat lengthen the overall instructions, the best practice will generally be for a trial judge to deal with each accused separately, even if that results in a measure of repetition. In any event, each potential basis for liability should be clearly and separately laid out for each offence and each accused. One significant consequence of the confusion in this case was that, in some instances, the trial judge instructed on avenues of liability not sought by the Crown and which were not available on the evidence.

[10] The respondent quite fairly acknowledges that the jury instructions were confusing. Indeed, the respondent accepts that the finding of guilt for Akhi based on common intention on three of the counts cannot be sustained. However, the respondent contends that the errors in the jury instructions do not go so far as to undermine the other convictions for Akhi, or any of the convictions for Moxam. On the latter point, the respondent says that “the only issue at trial” was whether the jury would excuse Moxam’s participation on account of duress.

[11] We do not agree. We begin by noting that had the trial judge instructed the jury as is now suggested by the respondent, that is, that the only issue for Moxam was duress, the respondent’s position might carry the day. But the trial judge did not do that. Rather, she included Moxam with Akhi throughout her instructions on all of the joint counts, including on all of the party liability issues.

[12] In our view, there is no safe way of separating out the confusion that was created by the erroneous jury instructions as between the various counts or as between the two appellants. If the jury was left in a state of confusion regarding what the Crown needed to establish for a conviction beyond a reasonable doubt, it cannot be said with any level of comfort that the confusion would only have permeated their consideration of some charges and not others.

[13] We would add that this case demonstrates the risks associated with including multiple counts in an indictment that arise out of the same conduct. It would benefit the conduct of prosecutions generally if the Crown identified the key offences involved and prosecuted only those offences. As Moldaver J. said recently, in R. v. R.V., 2021 SCC 10, 455 D.L.R. (4th) 253, at para. 78:

It is incumbent upon the Crown as a participant in the justice system to make the trial process less burdensome, not more. The Crown fails in that regard when it proceeds with duplicative counts. Doing so not only increases the length of the trial; it also places a greater burden on trial judges and juries by increasing, as it does, the complexity of jury instructions [Citation omitted.]

See also R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 58.

[14] In the end result, the jury instructions did not properly equip the jury with the tools necessary to decide this case fairly. The convictions cannot stand and must be set aside.

[15] It is for these reasons that we allowed the appeal and ordered a new trial. The convictions are quashed and a new trial is ordered on the counts on which the appellants were found guilty.

“Janet Simmons J.A.”

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A.”