Court of Appeal for Ontario

Date: 20240924 Docket: COA-23-CR-0673

Fairburn A.C.J.O., Gillese and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Marc Owusu-Boamah Appellant

Counsel: Andrew Stastny, for the appellant Scott Patterson, for the respondent

Heard: September 9, 2024

On appeal from the conviction entered by Justice Rita-Jean Maxwell of the Superior Court of Justice on April 12, 2022, with reasons reported at 2022 ONSC 3888 and the sentence imposed on January 18, 2023, with reasons reported at 2023 ONSC 496.

Reasons for Decision

[1] On January 25, 2020, a man was kidnapped from a parking lot by a group of masked and hooded men. He was held captive and tortured for many hours. There is no need to recount the grizzly facts. The victim’s ordeal was horrifying and excruciating. This was all done with a view to obtaining access to the victim’s bank accounts and stealing his money.

[2] The trial judge found that the appellant was one of the hooded men at the original scene, the one wearing a distinctive Nike tracksuit. She also found as a fact that he was involved in accessing the victim’s bank accounts. The appellant takes no issue with these findings of fact on appeal.

[3] The appellant was convicted of multiple offences, including kidnapping, extortion, use of an imitation firearm to commit an indictable offence, fraud, aggravated assault, administering a noxious substance, and fail to comply with a probation order. He originally appealed from the convictions for aggravated assault and administering a noxious substance. At the hearing of the appeal, he abandoned the appeal against the conviction for aggravated assault. This left only the appeal from the conviction on the count involving the administration of a noxious substance.

[4] The noxious substance was a pill of some kind, although the exact nature of the drug remains unknown. The victim testified that, at one point, someone forced his mouth open and put a pill in his mouth. He then had water poured into his mouth to swallow the pill. He testified that he was then tortured some more and lost consciousness. He was later released from the trunk of a vehicle and thrown to the ground. He was able to make his way to a home and ring the doorbell for help.

[5] The trial judge accepted the victim’s evidence that he was forced to swallow a pill that caused him to become drowsy and pass out.

[6] The appellant does not challenge the trial judge’s factual finding that the victim was drugged. Rather, he challenges her finding that he was culpable for the offence of administering a noxious substance either as a party or aider to the offence within the meaning of s. 21(1) of the Criminal Code, R.S.C. 1985, c. C-46, or that he was culpable by virtue of common intention within the meaning of s. 21(2).

[7] The appellant emphasizes that he was accessing the victim’s bank accounts after the initial kidnapping took place. Thus, he argues that there was simply no evidence to support him being at the place where the victim was held captive when the drugging occurred nor involved in the offence of administration of a noxious substance, not as a party, not as an aider, and not through common intention.

[8] In our view, it does not matter where the appellant was when the victim was being drugged or tortured. On the trial judge’s findings of fact, he was guilty under either ss. 21(1) or 21(2).

[9] Specifically, we point to multiple points in the judgment where the trial judge emphasized that this was a coordinated and well-planned group attack, and that the appellant was a central player in the group. For instance, she concluded that there was nothing spontaneous about the “coordinated plan” of the group, that the men “worked together in a planned and coordinated fashion for a common purpose”, that there was a “continued and coordinated effort by a group of men to extort money from [the victim] through threats of violence”, and so on. Perhaps the most poignant part of the reasons for judgment on this point is where the trial judge explained:

this was a targeted extortion and kidnapping, executed through a coordinated and persistent pressure campaign involving increasingly violent tactics. I find that the men involved worked together with the same goal, to get money from [the victim] through actual and threatened violence….

[10] The trial judge went on to list a number of the features of the evidence that supported this conclusion. She explained that “keeping their faces covered, [a] bag on [the victim’s] head, his arms and legs bound, drugging him and later transporting him in the trunk of a vehicle and abandoning him in a random location” (emphasis added) was part of the coordinated group approach to ensure that the victim was “unable to identify them, the vehicle, or any locations”.

[11] In our view, there was ample evidence upon which the trial judge could rely to arrive at the conclusion that the drugging was also part of the coordinated plan.

[12] It is against that factual backdrop that the trial judge rested the conviction for administering a noxious substance, as follows:

Given my findings that Mr. Owusu-Boamah played a central role in all parts of the kidnapping, it can be reasonably inferred that he was also involved, as a principal or as an aider, in administering a noxious substance to [the victim] and in committing an aggravated assault on [the victim], in furtherance of the violent kidnapping and extortion. It can be inferred that he, individually or collectively with others, was responsible for drugging and torturing [the victim] while he was confined to the residence, as part of an ongoing campaign of violence and confinement in which he was a central figure throughout. There is no evidence of who took what actions during the drugging and torture. However, I find that the only reasonable inference arising from the evidence is that Mr. Owusu-Boamah was present and played an active role in the commission of these offences, as a co-principal or as an aider, given the prominent role he played throughout the kidnapping in coordinating and executing the plan….

In the alternative, even if Mr. Owusu-Boamah was not physically present or did not personally commit the offences of administering a noxious substance and aggravated assault as a principal or aider, I find that he would still be a party to the offences by common intention under s. 21(2) of the Code. [Citations omitted].

[13] The appellant suggests that the administration of the noxious substance may have been an impulsive response by a confederate at the scene of the forcible confinement. However, this theory is belied by the trial judge’s own findings involving the coordination of the plan. In our view, based upon the findings of fact reached by the trial judge, most specifically the conclusion that this was a fully coordinated and planned attack, there were multiple paths to liability available on the evidence. This is so even if the appellant was not physically present when the noxious substance was administered to the victim. It was open to the trial judge to conclude in the particular circumstances here that the appellant knew that his confederates meant to drug the victim, whether or not he was present or personally participated when this part of the scheme was carried out.

[14] As for the sentence appeal, the appellant maintains that the global ten-year sentence (seven years and three months following credit for time served) is outside of the proper range for an offender who may not have been in the room at the time that the torture was happening. To this end, the appellant relies upon an authority which is very different from this case, one where the offender was not even physically involved in the original abduction: R. v. Powell, 2017 ONSC 7437. Not only was the appellant involved in the original abduction here, but the trial judge concluded that he was a “central” player throughout the criminal scheme that involved an entirely helpless victim who suffered serious violence and injuries.

[15] This is not to mention other aggravating factors, such as the appellant’s criminal record and the fact that he was the subject of a probation order and two weapons prohibition orders at the time of these offences.

[16] The respondent concedes that the six-year concurrent sentence on administering a toxic substance is not legal as the maximum is two years for this crime. We are asked to set aside the six-year concurrent sentence and impose a one-year concurrent sentence in its place.

[17] The conviction appeal is dismissed. Leave to appeal sentence is granted, the six-year concurrent sentence on count four, administering a noxious substance, is set aside and a one-year sentence, concurrent to the sentence on count one, kidnapping, is substituted in its place. Since the appellant’s sentences on the other counts remain undisturbed, this change does not affect the appellant’s global sentence.

“Fairburn A.C.J.O.”

“E.E. Gillese J.A.”

“J. Dawe J.A.”