CITATION: R. v. Powell, 2017 ONSC 6698

COURT FILE NO.: CR-17-5/709

DATE: 20171107

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

DEWAYNE POWELL

Aaron Del Rizzo, for the Crown

Mitchell Chernovsky, for the accused

HEARD: October 23-26, 30, 2017

K.L. Campbell J.:

Reasons for Judgment

A. Overview

[1] The accused, Dewayne Powell, faces an indictment that charges him with five offences: (1) kidnapping with intent to hold for ransom; (2) unlawful confinement; (3) extortion; (4) assault causing bodily harm; and (5) conspiracy to commit kidnapping for ransom. All of these offences are alleged to have been committed in the Town of Markham between January 6 and 13, 2015. The alleged victim of the offences is Mr. Abhivarman Paranirupasingam.

[2] The Crown concedes that it has not established the alleged guilt of the accused in relation to the offence of assault causing bodily harm. The accused accepts that he is guilty of the offence of forcible confinement. Defence counsel explained that the only reason the accused has not pled guilty to this charge is that he wants to preserve his right to appeal against an adverse pre-trial ruling regarding an alleged violation of his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms.

[3] The liability of the accused with respect to the three other alleged offences remains a point of contention between the parties. The Crown contends that, just as the accused is guilty of the offence of unlawful confinement, so too is he guilty of these three other offences. While he may not have been involved in the initial abduction of the complainant, the evidence proves that he knew full well that the complainant had been kidnapped and was being held for ransom, under threats of bodily harm, by his abductors, and willfully joined the ongoing criminal enterprize, intentionally taking steps to help it succeed. Defence counsel contends, however, that the Crown has not established, with the requisite degree of certainty, the alleged guilt of the accused in relation to any of these three remaining offences.

B. The Background Facts

1. The Abduction and Confinement of the Complainant

[4] On the afternoon of January 6, 2015, the complainant was violently abducted from the parking lot at the Markville Mall, located at McCowan Road and Highway #7, by two men. He was forced into a minivan, where he was punched, bound and blindfolded. He was taken to an undisclosed location and kept locked in a washroom. He was forced to reveal passwords and other personal information. For example, he told his abductors that he had $12,000 in a locker at his condominium. During his captivity, this money was taken from his condominium unit. The complainant believed that there was another captive being held in the same washroom, who was released after the first day.

[5] The complainant was kept captive at this undisclosed location for approximately three days. He was then moved to another undisclosed location, where he was kept for approximately another three days. The complainant was kept blindfolded for most of the time he was kept captive. While the complainant provided the police with a general physical description of the two men who kidnapped him from the mall parking lot, he was not able to identify anyone who was involved in his kidnapping or subsequent unlawful confinement. The complainant thought that there might have been as many as five or six people involved in his kidnapping and confinement.

[6] At the second undisclosed location, the complainant was tortured with some form of hot object. Large areas of his body, including his chest, stomach, shoulders, arms, and legs, suffered third degree burns. According to the complainant, only one person was involved in administering this torture and it happened only once. The rest of the abductors were “nice” to him. As the person who was involved in this torture had a distinguishable Haitian accent, the Crown does not suggest that it was the accused.

2. The Ransom Demands – The Police Investigation

[7] On January 9, 2015, one of the complainant’s close personal friends, Ahmad Safi, began to receive numerous text messages and audio clips, through an application called “Silent Circle.” This is a highly secure and privacy-oriented application, which permits messages to be sent directly between cell phones, without the intermediate intervention of an independent, third-party computer server. Accordingly, communications sent by means of the “Silent Circle” application are very difficult, if not impossible, to trace. Many of these text messages appeared to be from the complainant, asking Mr. Safi to produce a large sum of money to ensure his safe return from his abductors. The complainant described his abductors as “real soldiers,” indicated that this was “a business to them,” and indicated that they wanted $500,000. At times, it appeared that the abductors took over the phone being used to send the text messages and audio clips, and made their own direct demands to Mr. Safi for money to ensure the safe return of the complainant. Mr. Safi was told not to contact the police, and not to put any GPS device in the bag of ransom money.

[8] On January 10, 2015, the complainant’s father went to the Toronto Police Service (TPS) and reported his son missing. He had not seen the complainant, or heard from him, in several days. Further, around this same time, members of the complainant’s extended family, living in the United Kingdom, had received a brief telephone call from the complainant, indicating that he was being held against his will and that a ransom was to be paid. They were told not to do anything “stupid” or go to the police. This information had been passed on to the complainant’s father. Det. Stephen Laramy, an experienced officer with 22 Division of the TPS, became the officer-in-charge of this investigation. Det. Laramy and his team of officers with the “major crime” unit began to take steps to try to learn the whereabouts of the complainant.

[9] On January 11, 2015, Mr. Safi also went to the police and showed them the text messages that he had been receiving regarding the kidnapping of the complainant. At approximately 6:52 p.m. that day, Det. Laramy, acting in an undercover capacity, stepped into the shoes of Mr. Safi, and continued to engage with the abductors in the ongoing negotiations, pretending to be Mr. Safi. These discussions continued over the next couple of days.

[10] It was during this period of time, that it was learned that the complainant was being hurt and was in further danger. In a series of text messages, when the abductors were becoming impatient about how long it was taking to get their ransom money, the abductors had threatened to “start getting physical” with the complainant, and had suggested that there was one “crazy” abductor who wanted to cut off the complainant’s fingers. The messages also indicated that they were “not joking” and suggested that, if their demands were not met, they would start “putting him to work.” In another text message from the abductors, it was indicated that they could only hold back their “goons” for “so long,” and that they were “getting frustrated.” The abductors promised that, if there was any “bullshit with the money,” the complainant “won’t come home,” and his friends would “never see him again.” In another series of text messages, the abductors threatened to cut off one of the complainant’s fingers and send it to “his parents” to evidence “how serious” they were.

[11] Ultimately, it was agreed that $500,000 would be paid for the return of the complainant. A photograph of a duffel bag, containing the $500,000, which had been collected for purposes of paying this ransom, was sent to the abductors. The agreement that was reached was that a short time after the promised money was received, the abductors would release the complainant. The abductors indicated that they would be “sending a nobody” to pick up the money.

3. The Agreed Ransom Money Drop

[12] After some considerable discussion about how the exchange would take place, it was agreed that the kidnappers would pick up the $500,000 in ransom money, on the night of January 12, 2015. The abductors had suggested that the “drop” be made at the Kennedy subway station, but Det. Laramy insisted that it take place by means of a vehicle parked at a gas station at the north-west corner of the intersection of Eglinton Avenue East and Kennedy Road. This was a location which permitted the other 20-25 police officers in the vicinity to maintain visual surveillance of the area.

[13] As the abductors refused to bring the complainant to this location, but promised to release him once the money was secured, the police planned to arrest the abductors when they arrived to pick up the bag of money. Any phones that were found in the possession of the kidnappers would be seized and searched, and an “emergency” wiretap undertaken, pursuant to s. 184.4 of the Criminal Code, R.S.C. 1985, chap. C-46, on the basis of the reasonable police fear of imminent harm for the kidnapped complainant.

[14] At approximately 9:20 p.m. on January 12, 2015, the accused was in the area of Kennedy Road and Eglinton Avenue East. He was driving a white minivan. At the time, the abductors were still engaged in ongoing communications with Det. Laramy by means of text messages. The undercover officer had revealed to the abductors the make (but not the colour) of the car that was to contain the ransom money, and the abductors then confirmed that the money would be in the “grey Camry.” The money was to be in the trunk of the vehicle, and the abductors ordered that the trunk of the vehicle be opened. Once the trunk was opened by the undercover officer seated in the parked Camry, the accused exited the white minivan that was, at that time, parked a short distance away. The accused approached the parked Camry, briefly looked into the open trunk, and then continued walking. While there was an open bag in the trunk of the parked Camry, there was, in fact, no money in the bag.

[15] Unfortunately, at about this same time, a random citizen, driving a Crown Victoria vehicle, pulled into the parking lot, coincidentally parked beside the grey Camry, and the driver of the vehicle went into the gas station.

[16] This may have caused the abductors to suspect that the police were involved as, shortly thereafter, the abductors sent a series of text messages indicating, essentially, that the money pick-up was off. The abductors sent messages saying “Bye” and suggesting that he should now “watch” the complainant’s “fingers,” suggesting (as they had in previous text messages) that they would be removing the complainant’s fingers. When asked if they were taking the money, the abductors replied: “Keep it for [you] and the car parked next to [you],” adding that this was not their “first time.”

[17] The minivan was then driven away from the parking lot. Obviously, someone else who had been in the van moved over into the driver’s seat, and took control of the vehicle. The accused was simply left behind. The minivan initially proceeded down Kennedy Road, before doing a U-turn and then driving back toward the gas station and Eglinton Avenue East. At this time, the minivan was being followed by a number of undercover police officers in unmarked vehicles who were planning to “box-in” the minivan and arrest its occupants. By the time the minivan had returned to the gas station, the accused had already been arrested and removed from the area. At that point, the driver of the minivan started to drive erratically, and smashed into a couple of the police vehicles, before successfully escaping from the area. Police officers were able to record the license plate number of the fleeing minivan, but were unable to successfully stop it and apprehend the person or persons inside.

4. The Arrest of the Accused – The Initial Cursory Searches of His Cell Phone

[18] When the minivan first left the scene, the accused was quickly arrested by the police and taken to the 22 Division police station. Incident to his arrest, the police seized two cell phones that were in his personal possession. One of them was a BlackBerry Q5 smart phone.

[19] This phone was immediately provided to Det.Cst. Morden, one of the specialized, trained and accredited officers in the TPS “Technical Crimes” unit. He received the phone at approximately 9:40 p.m. While it had been “password protected,” within an hour Det.Cst. Morden was able to access the contents of the BlackBerry by downloading all of its content. Det. Cst. Morden and Det.Cst. Angus each lawfully undertook a cursory examination of the contents of this cell phone, in the exigent circumstances of the investigation, in an effort to locate any potential geographical information that might disclose the confined whereabouts of the complainant. See R. v. Powell, 2017 ONSC 6482.

5. The Emergency Wiretaps and the Rescue of the Complainant

[20] In addition, based on the recent phone calls that had been placed to the accused’s seized BlackBerry, the police immediately set up the emergency wiretap operation on certain phone numbers.

[21] During this operation, the police learned that the complainant was going to be moved to another location in the early morning hours. The complainant later indicated that he had been told by his abductors that they had to move him because his friend had gone to the police instead of bringing them the money. They felt that they were being followed.

[22] At approximately 4:46 a.m. on January 13, 2015 the complainant was moved in a cab by two individuals, Robert Zaya and Patrick Sweeney. During this transportation of the complainant, the complainant was rescued, and the two men involved in his transportation arrested. This rescue and arrest took place at a residence located on Lamberton Blvd. in Toronto. Once the complainant was rescued, the emergency wiretap exercise was immediately discontinued.

[23] As the complainant had suffered extensive physical injuries from his torture, he was taken to St. Joseph’s Medical Center for medical treatment. Subsequently, the complainant attended at 22 Division and provided a statement to the police about the details of his abduction and confinement.

6. The Recovery of the Rented Minivan

[24] Over the next few days, the police pursued their investigation into this matter. On January 15, 2015, the police recovered the rented white minivan that had been driven to the ransom “money drop,” and which had escaped the police after leaving the accused behind.

[25] Inside the minivan, the police discovered: (1) the fingerprints of the accused; (2) a rental agreement, dated December 18, 2014, between the accused and “Enterprise Rent a Car Company Canada,” concerning the rental of the minivan; (3) the accused’s driver’s license; (4) the accused’s Hudson’s Bay Company Mastercard credit card; (5) a TD Canada Trust receipt showing that a $1,000 payment was made on the accused’s Hudson’s Bay Company Mastercard credit card account at 11:25 a.m. on January 8, 2015 in Uxbridge, Ontario; and (6) a parking ticket issued in Markham, Ontario on January 11, 2015 at 6:00 a.m., for parking on private property without the consent of the owner. In his testimony, Det. Laramy agreed, however, that there was no forensic evidence that suggested that the complainant was ever in the minivan rented by the accused.

C. The Governing Legal Principles

1. The Presumption of Innocence

[26] The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial, and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, at p. 357; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at pp. 682-683, 687.

2. The Burden of Proof on the Crown

[27] It is also important to recall the nature of the heavy burden of proof cast upon the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.

3. The Silence of the Accused

[28] Of course, an accused need not testify in his or her defence and, if the accused elects to remain silent in the face of criminal allegations, as the accused elected to do in the present case, no adverse inference can be drawn against him for his reliance upon that important right. As the Supreme Court of Canada has confirmed, an accused’s silence at trial “is not evidence” of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.” In other words, if, after considering the whole of the evidence, the trier of fact is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the trier of fact cannot look to the accused’s failure to testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt. See R. v. Prokofiew, 2012 SCC 49, at paras. 4, 10-12, 15, 20-21, 26, 64-65; R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 72; R. v. Tomlinson, 2014 ONCA 158, at paras. 97-98; R. v. Caron, 2014 BCCA 111, at paras. 24-26; R. v. Duhamel, 2012 ONSC 6449, at paras. 91-92.

D. Analysis of the Evidence and Conclusions

1. Introduction

[29] For the following reasons, the evidence in this case satisfies me beyond a reasonable doubt that the accused is guilty of the alleged offences of kidnapping, forcible confinement, and conspiracy to commit the offence of kidnapping. While the accused may not have been personally involved in the initial abduction of the complainant from the parking lot of the Markville Mall, at a minimum the evidence proves, with the requisite degree of certainty: (1) that the accused knew that the complainant had been kidnapped and was being confined against his will, with the intention of securing substantial ransom funds; (2) that the accused knowingly joined in the commission of the continuing offences of kidnapping and forcible confinement, and intentionally aided in their commission; and (3) that the accused knowingly and intentionally joined the existing conspiracy to kidnap the complainant for ransom. Accordingly, the accused must be found guilty of the offences alleged in counts one, two, and five of the indictment.

[30] I am not satisfied beyond a reasonable doubt, however, that the accused is guilty of the alleged offences of extortion or assault causing bodily harm. Accordingly, the accused must be found not guilty of the offences alleged in counts three and four of the indictment.

2. The Accused Attempted to Collect the Ransom Money

[31] I am satisfied that the accused knowingly and intentionally played a critical role in the kidnapping offence against the complainant. After all, he was the one that tried to collect the ransom money.

[32] After the agreement had been reached, between the undercover police officer and the complainant’s abductors, as to how the ransom money would be passed along to the abductors, it was the accused who personally appeared at the designated location to collect the money. The accused was driving the white minivan that he had rented approximately three weeks earlier on December 18, 2014. His documents and fingerprints were later discovered inside the minivan when it was recovered by the police. The accused was in the company of at least one other individual. The accused must have been, in some way, in communication with the complainant’s abductors, as he knew exactly where to look for the ransom money. The accused parked his minivan near the parked undercover police vehicle, the grey Camry. After the truck was opened on the Camry, the accused exited his minivan, walked over to the Camry and looked into the trunk. This was clearly purposeful conduct on the part of the accused. He was, quite obviously, looking to collect the promised ransom money. When he realized that the bag in the open trunk did not, in fact, contain the promised ransom money, he kept walking.

3. The Evidence Found on the Accused’s BlackBerry Smart Phone

[33] As I have indicated, when the accused was arrested, he was found in possession of a BlackBerry Q5 smart phone. This phone was not registered to the accused. Indeed, the parties agree that such a phone is commonly described as a disposable, “burner” phone. Potentially, it could have been owned and used by anyone. The Crown admitted that it could not establish that it was only ever used by the accused. Nevertheless, I am satisfied that this BlackBerry smart phone, in fact, belonged to the accused and was a phone that he used with regularity. First, the accused was, after all, found in possession of this phone at the time of his arrest. Second, there is no evidence before me that suggests that this phone was ever owned and/or used by anyone else. Third, the limited evidence lawfully found on this cell phone itself suggests that this BlackBerry was only ever owned and used by one person.

[34] A review of the text message exchanges lawfully seized from this BlackBerry reveals the following:

• Over the approximately two-week long period between December 29, 2014 and January 12, 2015, there were a considerable number of text messages exchanged between the accused and the unknown male user of another phone (with a phone number ending in 7401). This was the same phone number that was being used to try to contact the accused immediately following his arrest on the night of January 12, 2015, and which ultimately led, through an emergency wiretap of that phone number, to the discovery of the location and rescue of the complainant.

• These conversations collectively revealed a close personal relationship between the accused and the unknown male. In their messages, they frequently called each other “fam” (i.e. family) or “bro” (i.e. brother). Their close personal friendship, and their personal visits with each other, over this period of time, were also otherwise evident in the nature of their frequent, casual conversations.

• On December 31, 2014, the accused indicated that he had to “switch the rental over.” He also asked the unknown male to “program” the phone number of his BlackBerry.

• On December 31, 2014 and January 4, 2015, the unknown male offered to give the accused some money, namely “5bills” and “3bills” on these two occasions respectively.

• Between approximately 9:00 and 10:00 p.m. on January 6, 2015, the unknown male told the accused to make sure that a third male, simply referred to as “he,” was not on the phone. They were arranging to meet together. The unknown male told the accused that he wanted to come and “hear” this third male, but that he did not want the third male to “see” him. He also suggested that the third male thought they were “chump change” and that this would make them “happy.” The accused indicated that, at the time, he was in the vicinity of the intersection of McCowan and Ellesmere Roads.

• At approximately 9:30 a.m. on January 8, 2015, the accused asked the unknown male if they were still going to “get the house.” The unknown male responded affirmatively, and indicated that he had messaged “the guy,” was “waiting,” and was “online looking.” Within about five minutes, the unknown male indicated that there were “other places” available, but that they were in the west, and he asked what he should do. The accused responded that it did not matter, just as long as they got a “good spot.” The unknown male responded that “distance” was not an issue “now,’ and that he would “make sure” that the accused was “safe.” The accused replied “okay.”

• At approximately 11:00 a.m. on January 8, 2015, the unknown male asked how he could get the phone number for “Reggie.” The accused asked him to “hold up.” The unknown male also asked the accused about another individual referred to as “Ravi,” inquiring whether he was on “silent.” The unknown male then indicated to the accused that he was now getting his BlackBerry. The accused then responded that “he doesn’t have silent.” The accused then indicated that “Reggie” was his cousin, but he was saying to call a “doctor and Kavaskar to sort out the Ravi issue.” The accused then told the unknown male to “tell Reggie to call a doctor and do that.” The accused then said: “Honestly bro I think he’s trying a ting.”

• At approximately 11:35 a.m. on January 8, 2015, the accused told the unknown male that “Ravi with the long name” was “his friend from England.” The unknown male responded that “he” has not been lying about people, but he is lying about “networth.” The accused acknowledged this comment.

• At approximately 11:15 a.m. on January 12, 2015 the unknown male sent the accused a request for some food, and asked him to bring a “tuna sandwich” or a “velvet cookie” for “my boy.” The accused replied “okay.”

• At approximately 10:40 p.m. on January 12, 2015, the unknown male sent the accused a text saying: “Famo link me.”

[35] In my view, this collection of text messages, viewed collectively, confirms that the accused owned, and frequently used, the BlackBerry device. They also reveal a very close personal relationship between the accused and the unknown male, who had the phone with the number ending in 7401, and the emergency wiretap of which number ultimately led to the rescue of the complainant. Finally, these communications collectively show a significant depth of knowledge on the part of the accused of the circumstances surrounding the kidnapping and confinement of the complainant, as well as a significant level of personal participation by the accused in those ongoing offences. In this final regard, there are at least four important examples.

[36] First, recall that the complainant was abducted from the Markville Mall parking lot on the afternoon of January 6, 2015 and taken to an undisclosed location. That same night, while the unknown male and the accused were arranging to meet together, the unknown male told the accused that he wanted to come and “hear” a third male, but that he did not want the third male to “see” him. He also suggested that the third male thought they were “chump change” and that this would make them “happy.” I interpret this exchange as a conversation about the circumstances of the kidnapping of the complainant. The unknown male wanted to “hear” the confined complainant, but, not surprisingly, he did not want the complainant to “see” him. The unknown male was also complaining to the accused about the “chump change” that the complainant hoped he might be able to provide as ransom money in order to gain his safe release.

[37] Second, recall that the complainant was confined in the first undisclosed location for a period of approximately three days following his abduction on January 6, 2015. Then the complainant was moved to a second undisclosed location. In my view, the text message exchange that took place between the unknown male and the accused on the morning of January 8, 2015, is a conversation about finding a location to which the complainant could be moved. The accused inquired as to whether they were going to “get the house.” The unknown male responded, effectively, that they were, and that he was still looking for one. The accused suggested that it did not matter to him where the house was located, as long as they got a “good spot.” The unknown male assured the accused that he would “make sure” that the accused was “safe.” This suggests that the accused was, at some point, personally involved in supervising the continued confinement of the complainant.

[38] Third, during their text message exchange on the morning of January 8, 2015, the accused demonstrated a knowledge of the “Silent Circle” application that was being used by the abductors to communicate with the complainant’s friends. The accused seemed to be able to find out who had the “Silent Circle” application and who did not. During this conversation, the unknown male referred expressly to the accused’s BlackBerry device.

[39] Fourth, in their text message exchange that took place at approximately 11:35 a.m. on January 8, 2015, the accused and the unknown male were talking about what the abductors were being told by the complainant. The complainant’s “friend from England” was mentioned, and the unknown male complained to the accused that while the complainant may not have been “lying about people,” he was “lying about networth.” The accused acknowledged this comment.

[40] While the meaning of some of the other text message conversations remains unclear, the four communications that I have highlighted, as examples of the knowledge and involvement of the accused in the alleged offences, seem to relate directly to the circumstances of the kidnapping and confinement of the complainant. No sensible alternative explanations or interpretations of these conversations have even been suggested.

4. Liability for the Offence of Unlawful Confinement

[41] Defence counsel conceded that the accused should be found guilty of the alleged offence of unlawful confinement. He explained that, had the accused not wanted to pursue an appeal against an earlier unfavourable ruling dismissing his application to stay the proceedings pursuant to s. 11(b) of the Charter of Rights, the accused would have pled guilty to this offence. In effect, defence counsel agreed that the evidence established beyond a reasonable doubt that the accused knew that the complainant was being unlawfully confined by his abductors, and either: (1) intentionally participated directly in the continued unlawful confinement of the complainant, as one of the principal offenders; or (2) intentionally took steps for the purpose of aiding the principal offenders in the commission of that continuing offence, as a party to the offence.

[42] Based upon that concession, and all of the evidence in this matter, I am satisfied beyond a reasonable doubt that the accused is guilty of this offence. There is no question that the complainant was physically confined, against his will. The governing judicial authorities establish that if, for “any significant period of time,” the alleged victim was “coercively restrained or directed” contrary to his or her wishes, so that he or she “could not move about” according to his or her “own inclination and desire,” there is an unlawful confinement within the meaning of s. 279(2) of the Criminal Code. See R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont.C.A.), at p. 475; R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 723; R. v. Tremblay (1997), 1997 CanLII 10526 (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.), at pp. 91-92; R. v. Pritchard, 2008 SCC 59, at para. 24. In the present case, the complainant was coercively restrained against his will by his abductors – for a period of some eight days. There is no suggestion that this lengthy period of coercive confinement was lawful – it clearly was not.

[43] The only possible issue is whether the accused was knowingly involved in his unlawful confinement. The evidence strongly supports the reasonable inference that the accused was, indeed, involved in that continuing offence. The accused, through defence counsel, has effectively admitted that he was so involved in that continuing offence. Accordingly, the accused must be found guilty of count two of the indictment.

5. Liability for the Offence of Kidnapping (With Intent to Ransom)

Party to the Continuing Offence

[44] While the accused may not have been involved in the initial abduction of the complainant from the parking lot of the Markville Mall, the offence of kidnapping with the intent to hold for ransom, contrary to s. 279(1.1)(b) of the Criminal Code, is a continuing offence. Moreover, I am satisfied beyond a reasonable doubt that the accused subsequently knowingly joined in the commission of that continuing offence, and intentionally aided in its commission.

[45] The important legal issue as to whether or not the offence of kidnapping is a continuing offence was conclusively resolved by the Supreme Court of Canada in R. v. Vu, 2012 SCC 40. The victim in that case was abducted and held for eight days in three different houses. While circumstantial evidence connected the accused to all three of these houses, the trial judge found that the accused neither participated in the initial taking of the victim, nor knew of it at the time it occurred. Moreover, the trial judge accepted the position advanced by the accused that the crime of kidnapping ended at the time the victim was abducted. Accordingly, at trial, the accused was convicted of the offence of unlawful confinement, but was acquitted of the crime of kidnapping. On appeal by the Crown, the majority of the British Columbia Court of Appeal concluded that the accused should also have been convicted of kidnapping as the offence is a continuing one, that includes both the initial taking of the victim and the ensuing confinement, and the evidence established that the accused became a party to the offence after the victim was abducted. See R. v. Vu, 2011 BCCA 112.

[46] In dismissing a further appeal by the accused, the Supreme Court of Canada unanimously agreed with this conclusion. Moldaver J., delivering the judgment of the court, at paras. 6-7, 25, 33, 40, 49, concluded that the offence of kidnapping is a continuing offence, which includes the victim’s ensuing confinement, such that the offence may be complete as a matter of law when the victim is initially abducted, but is not completed in fact until the victim is freed. Accordingly, “latecomers who join the kidnapping enterprise while the victim remains unlawfully confined” may be found guilty as parties to the crime of kidnapping if they meet the requirements of party liability. Moldaver J. explained, at para. 47, that the actus reus of the offence of kidnapping is the abduction of the victim, moving him or her to another place, against their will, by force or fraud. The mens rea of the offence is established if the Crown proves that the accused possessed one of the mental elements prescribed in s. 279(1) of the Code. Further, at paras. 58-60, Moldaver J. noted that, under s. 21(1) of the Criminal Code, an accused becomes a party to a continuing offence when the accused, armed with knowledge of the principal offender’s intention to see the continuing offence through to its completion, and with the intention of assisting the principal offender in the commission of the continuing offence, does (or omits to do) something that assists or encourages the principal in the commission of the continuing offence. See also R. v. Briscoe, 2010 SCC 13, at paras. 14-18. As Moldaver J. explained, at paras. 60 and 63:

Applying that principle to this case, once it is understood that kidnapping is an aggravated form of unlawful confinement, which continues until the victim is freed, there is no reason in law or logic why a person who learns that the victim has been kidnapped and nonetheless chooses to participate in the kidnapping enterprise, should not be found liable as a party to the offence of kidnapping under s. 21(1) of the Code.

Applying this principle to the present context, once it is accepted that the crime of kidnapping continues until the victim is freed, a person who chooses to participate in the victim’s confinement – after having learned that the victim has been kidnapped – may be held responsible for the offence of kidnapping under s. 21(1).

[47] In the circumstances of the present case, the complainant was abducted on the afternoon of January 6, 2015, and he was not rescued by the police until the early morning hours of January 13, 2015. Accordingly, while the offence was legally complete on January 6, 2015, the crime did not, as a matter of fact, come to an end until January 13, 2015. Said another way, between those dates, the status of the complainant, as a victim of the offence of kidnapping, did not change during his eight days of captivity. See R. v. Vu, at para. 67.

[48] The participation of the accused in the continuing offence, by virtue of his attempt to collect the ransom money for the kidnapping in his rented minivan, knowing that the complainant had been kidnapped for ransom, and still remained unlawfully confined for ransom, satisfied the actus reus component of the offence. In this way, the accused, knowing that the complainant remained involuntarily and unlawfully confined for ransom, chose thereafter to become involved and take an active part in the continuing kidnapping enterprise. See R. v. Vu, at para. 68, 70.

[49] The Crown has also established that the accused participated in the offence with the necessary mental element for the offence. Knowing that the complainant had been kidnapped for the purpose of being held for ransom, and knowing that the complainant still remained unlawfully confined, the accused intentionally engaged in conduct for the purpose of assisting the principal offenders in their commission of the continuing offence, and in bringing it to a financially successful conclusion. In short, the accused voluntarily joined the kidnapping enterprise while he knew that the unlawful confinement of the complainant was still underway. In so doing, the accused took positive steps with the intention of aiding the principal offenders, the actual kidnappers, and for the purpose of furthering the ultimate objective of the kidnapping – securing the ransom money. See R. v. Vu, at para. 72.

[50] The fact that the abductors, at one point in their exchange of text messages with the undercover police officer, indicated that they would be sending a “nobody” to pick up the ransom money does not cause me to have any reasonable doubt as to the guilt of the accused in relation to this offence. First, this comment might well have been made by the abductors for the very purpose of trying to minimize the involvement and/or importance of the accused in the overall kidnapping enterprise, knowing that he was the offender most at risk of arrest, prosecution and imprisonment if he was unable to successfully retrieve the ransom money and was apprehended by the police. Second, whether or not the accused is perceived as a “nobody” by one or more of the abductors, such a perspective does not impact upon the liability of the accused for the offence of kidnapping. In other words, the accused might have been perceived as a “nobody” in the overall organizational structure of the continuing kidnapping offence while, at the same time, intentionally aiding in the commission of that offence. In short, provided the accused is a party to the alleged offence, he need not be the most important or substantial participant, to be properly found guilty.

[51] In conclusion, I am satisfied beyond a reasonable doubt that the accused, armed with knowledge of the kidnapping of the complainant, knowingly joined in the commission of the continuing offence, and intentionally engaged in conduct for the purpose of aiding in its commission. In so doing, the accused made himself a party to the offence of kidnapping pursuant to a combination of ss. 21(1) and 279(1) of the Criminal Code. Accordingly, the accused must be found guilty of count one of the indictment.

6. Liability for Conspiracy to Commit Kidnapping for Ransom

[52] Generally speaking, where an accused is charged with the inchoate offence of conspiracy, the Crown must establish the following elements beyond a reasonable doubt: (1) an intention to agree; (2) completion of the agreement; (3) a common unlawful design; and (4) an intention to put the common unlawful design into effect. See R. v. Root, 2008 ONCA 896, at para. 66.

[53] While I am certainly satisfied, in all of the circumstances of this case, that there was a conspiracy to kidnap the complainant, I am not satisfied beyond a reasonable doubt that the accused was one of the original members of this conspiracy. The evidence simply does not establish that the accused was engaged, with the others, from the very outset, in the kidnapping of the complainant. That does not, however, entirely resolve the question of the potential liability of the accused for this offence. Indeed, there are two theories of liability that, if accepted beyond a reasonable doubt, would render the accused guilty of the offence of conspiracy to commit the offence of kidnapping for ransom.

[54] The accused might potentially be liable for this offence as a party to the conspiracy, pursuant to s. 21(1) of the Criminal Code. In R. v. J.F., 2013 SCC 12, the Supreme Court of Canada outlined the proper scope of this basis of liability. The court concluded, at paras. 39-41, 46-47, 59 and 63, that, in order to establish this basis of the liability for the offence of conspiracy, the Crown was obliged to prove that the accused intentionally aided or abetted the very formation of the agreement (i.e. the actus reus of the conspiracy), or intentionally aided or abetted a new member to join the original, pre-existing agreement. The court rejected, at paras. 42-45, the notion that it was enough for the Crown to prove that the accused intentionally aided or abetted the furtherance of the conspiracy’s unlawful object. See also R. v. Trieu, 2008 ABCA 143, at paras. 32-33; R. v. Bérubé (1999), 1999 CanLII 13241 (QC CA), 139 C.C.C. (3d) 304 (Que. C.A.), leave refused, [2000] 1 S.C.R. vii; R. v. Nguyen, 2016 ONCA 182, at paras. 19-26; R. v. Luu, 2015 SKCA 128, at paras. 33-34. There is no evidence in support of this basis of liability and, accordingly, I reject it as being without foundation.

[55] The Crown also argued, however, that the accused should be found guilty of this alleged offence as a principal offender. In order to prove such liability, the Crown must establish beyond a reasonable doubt: (1) that there was an existing conspiracy, between two or more persons, to commit the offence of kidnapping for ransom; and (2) that the accused knowingly and intentionally joined in this conspiracy. In R. v. Cotroni; R. v. Papalia (1979), 1979 CanLII 38 (SCC), 45 C.C.C. (2d) 1 (S.C.C.) at p. 17, at pp. 17-18, the Supreme Court of Canada expressly noted that “[a]dditional persons may join [an] ongoing scheme.” However, in order to prove that an accused intended to join or adhere to an existing conspiracy, the Crown must prove that the accused adopted the conspiracy as his own and consented to participate in achieving its common unlawful purpose. See R. v. Lamontagne (1999), 1999 CanLII 13463 (QC CA), 142 C.C.C. (3d) 561 (Que. C.A.), at pp. 575-576.

[56] In R. v. J.F., Moldaver J., delivering the unanimous judgement of the court, suggested, at para. 52 (and reiterated at para. 73), that in some circumstances the circumstantial evidence of membership in the conspiracy can be compelling:

In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred. To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved.

[57] Moldaver J. also sought to make it clear in R. v. J.F., at para. 54, that it was not necessary for “all members of a conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object.” Rather, “[a]ny degree of assistance in the furtherance of the unlawful object” can properly lead to a finding of membership in the conspiracy, provided “agreement to a common plan can be inferred and the requisite mental state has been established.”

[58] In the circumstances of the present case, I am satisfied beyond a reasonable doubt that the accused is guilty of the offence of conspiracy to commit the offence of kidnapping for ransom on this basis. In my view, the Crown has established that the accused, with knowledge of the existing conspiracy to kidnap the complainant and hold him for ransom, intentionally joined that existing conspiracy, adopting it as his own, and agreed to actively participate in trying to achieve its common unlawful purpose – great financial gain for the safe return of the kidnapped complainant. See R. v. J.F., at para. 65. Accordingly, the accused will be found guilty of count five of the indictment.

7. The Offence of Extortion

[59] Generally speaking, the offence of extortion, contrary to s. 346(1) of the Criminal Code, requires the Crown to prove the following four elements beyond a reasonable doubt: (1) that the accused induced or attempted to induce someone to do something or to cause something to be done; (2) that the accused used threats, accusations, menaces or violence; (3) that the accused did so with the intention of obtaining something by the use of threats; and (4) that either the use of the threats or the making of the demand for the thing sought to be obtained was without reasonable justification or excuse. See R. v. Natarelli, 1967 CanLII 11 (SCC), [1967] S.C.R. 539, at pp. 545-546; R. v. Barros, 2011 SCC 51, at para. 53.

[60] Accordingly, the complainant’s abductors are guilty of the offence of extortion, as well as the offence of kidnapping, because: (1) they attempted to induce the complainant’s friends and family to pay them $500,000; (2) they used threats, menaces and/or violence in trying to induce this financial payment; (3) they clearly engaged in this conduct with the intention of obtaining the $500,000 in ransom funds by the use of threats; and (4) the use of the threats, menaces and/or violence, and the making of the demand for the $500,000, was entirely without reasonable justification or excuse.

[61] The accused is not, however, alleged to be one of the complainant’s abductors. The Crown contends that the accused joined the offence after it had begun, and became a party to it by later intentionally aiding its commission. I reject this argument as it is based, in my view, upon an incorrect understanding of the offence of extortion. Unlike the offence of kidnapping, the crime of extortion is not a continuing offence. The purpose of the offence of extortion, as defined by s. 346(1) of the Code, is to criminalize “intimidation and interference with the freedom of choice.” See R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759, at para. 55. The offence of extortion is “aimed at those who would use coercion to overcome the free will of others for the purpose of extracting some gain.” See R. v. H.A. (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont.C.A.), at para. 71; R. v. D.S. (2004), 2004 CanLII 7198 (ON CA), 72 O.R. (3d) 223 (C.A.), at paras. 51-57.

[62] That means, in the circumstances of the present case, that the offence of extortion was over and completed as soon as the complainant’s abductors, without lawful justification or excuse, used threats, menaces and/or violence to attempt to induce the complainant’s friends and family to pay them $500,000.

[63] This point was made by the Supreme Court of Canada in R. v. Davis. The accused in that case was alleged to have extorted sexual favours from a number of different complainants. The main legal issue in the case was whether sexual favours were “anything” that could properly be the subject matter of an alleged extortion. In concluding that the accused was properly convicted of these offences, Lamer C.J.C., delivering the unanimous judgment of the court, at para. 59, offered the following analysis of the liability of the accused in relation to one of the individual charges:

The appellant’s threats clearly amounted to an attempt to extort sexual favours from C.D., thereby constituting the actus reus of extortion, which includes an attempt at inducing any person to do anything or to cause anything to be done. The attempt is completed once the offender threatens the victim with a view to extorting or gaining anything. [emphasis added]

[64] By the time the accused became involved in the unfolding events of the present case, the offence of extortion had already been committed. While the abductors may have continued to employ threats, menaces and/or violence in order to try to secure the financial cooperation of the complainant’s friends and family, the evidence does not support the conclusion that the accused was either: (1) involved as a principal or a party in the violence used against the complainant; or (2) involved as a principle or a party in the threats or menaces communicated to the complainant’s friends and family. Accordingly, the accused will be found not guilty of count three of the indictment.

8. The Offence of Assault Causing Bodily Harm

[65] As I have already mentioned, the Crown concedes that it cannot establish that the accused is guilty of the alleged offence of assault causing bodily harm, either as a principal offender, or as a potential party. I agree that the Crown has not met its heavy burden of proof regarding this offence. While there is no doubt that the accused was intentionally subjected to torture, which caused him serious bodily harm, there is no evidence that the accused was involved, in any manner, in the commission of that offence. Accordingly, the accused must be found not guilty of count four of the indictment.

E. Verdicts

[66] In summary, I am satisfied beyond a reasonable doubt that the accused is guilty of the offences of kidnapping with intent to hold for ransom (count one), forcible confinement (count two), and conspiracy to commit the offence of kidnapping with the intent to hold for ransom (count five). However, the accused must be found not guilty of the offences of extortion (count three), and assault causing bodily harm (count four).

Kenneth L. Campbell J.

Released: November 7, 2017

CITATION: R. v. Powell, 2017 ONSC 6698

COURT FILE NO.: CR-17-5/709

DATE: 20171107

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

DEWAYNE POWELL

REASONS FOR JUDGMENT

K.L. Campbell J.

Released: November 7, 2017