Court of Appeal for Ontario

Date: 2024-12-20 Docket: C69948

Judges: MacPherson, Gillese and Roberts JJ.A.

Between:

His Majesty the King Respondent

and

Clifton Vassel Appellant

Counsel: John D. Fitzmaurice and Neill Fitzmaurice, for the appellant Roger Pinnock, for the respondent

Heard: December 19, 2024

On appeal from the convictions entered by Justice Kelly P. Wright [1] of the Superior Court of Justice, on August 31, 2017, and the sentence imposed on May 2, 2018, with reasons reported at 2018 ONSC 2987.

Reasons for Decision

[1] On April 16, 2015, a car containing three masked men, each armed with a semi-automatic firearm, drove to and parked in the area of a particular residential townhouse complex in the Driftwood area of Toronto. The three men proceeded directly to a specific townhouse and there, deliberately advancing in a straight line with arms raised, opened fire on the unsuspecting victims having a spring barbecue on their lawn. The three shooters did not stop firing their semi-automatic weapons until they had emptied their magazines, firing approximately 22 shots into the group of victims. They then fled to the nearby waiting car that immediately sped away. By chance, a Toronto Police Services surveillance team was in the area, heard the shots, pursued the fleeing car, and conducted a high-risk takedown. The three shooters attempted to escape on foot but were apprehended by police.

[2] Given the brazen attack, incredibly but thankfully, no one was killed, although five victims were badly wounded and continue to suffer in various degrees from their injuries. One of the victims almost died and sustains ongoing, life-altering disabilities. There was no evidence of the motive for the shooting or that the shooters knew any of their victims.

[3] Although contested at trial, the identity of the appellant as one of the three shooters is not an issue on appeal. On his conviction appeal, the appellant submits that the trial judge made two reversible errors:

1. She erred in her assessment of the mens rea required for attempted murder. Specifically, she wrongly attributed the actions of the other shooters to the appellant to infer his specific intent for attempted murder.
2. Her verdicts on four of the five convictions for attempted murder were unreasonable. The appellant submits that if this ground of appeal is successful and one or more of the five counts of attempted murder are vacated, his sentence must be reconsidered.

[4] We are not persuaded there is any basis for appellate intervention.

[5] The trial judge made no error in her consideration of the issue of the appellant’s mens rea for attempted murder. There is no dispute that the trial judge referenced and applied the applicable legal principles with respect to the offence of attempted murder and the requisite specific intent to kill one or more persons. There is also no dispute that the shooters’ overlapping actions supporting the trial judge’s finding of the appellant’s specific intent were the same.

[6] This evidence included that this was a pre-planned, deliberate attack by the three shooters working and firing in concert. The fact that the appellant had fewer rounds to fire or may not have chased the victims after the shooting does not detract from the trial judge’s finding of his equal participation in and responsibility for this mass shooting. The only reasonable inference to be drawn is that the shooters – all the shooters – had the requisite and specific intent to kill the victims when they came deliberately to the specific townhouse, lined up together and fired their firearms into the unsuspecting group of victims.

[7] Nor are we persuaded that any of the five convictions for attempted murder was unreasonable. As the trial judge correctly found, this was not a spontaneous or random shooting into a crowd but a targeted planned attack on a specific group of people, and the appellant had the specific intent to kill. The evidence amply supported her findings.

[8] For these reasons, the conviction appeal is dismissed. Given our conclusion on the conviction appeal, it is not necessary to consider the sentence appeal.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“L.B. Roberts J.A.”

[1] The trial judge’s last name changed to Byrne by the time of sentencing.