COURT FILE NO.: CR-17-4/178
DATE: 20180814
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JOHNATHAN ALVAREZ-MAGGIANI
Cynthia Valarezo, for the Crown
Tyler Smith and Sia Pashang,
for the Accused
HEARD: June 13, 2018
K.L. Campbell J.:
Ruling
Directed Verdict Application
A. Overview
[1] The accused, Johnathan Alvarez-Maggiani, faces an indictment that charges him with the following seven offences: (1) breaking and entering apartment 205, at 1491 Wilson Avenue, with the intention of committing an indictable offence therein; (2) assaulting Amar Alawieh; (3) assaulting Paola Salaberry; (4) assaulting Natasha Fridgant; (5) committing an aggravated assault on Amar Alaweih; (6) mischief to the property of Paola Salaberry having a value less than $5,000; and (7) using an imitation firearm while committing the indictable offence of assault. All of these offences are alleged to have been committed by the accused in Toronto on November 13, 2015. The accused is being tried for these alleged offences by a jury.
[2] Essentially, the Crown alleges that, in the early morning hours of November 13, 2015, the accused and his friend, Boris Citriniti, broke into the apartment of his ex-girlfriend, Paola Salaberry, on her birthday, for the purpose of assaulting and otherwise inflicting violence on her new boyfriend, Amar Alaweih, who was a former close friend of both the accused and Mr. Citriniti. The Crown contends, more specifically, that the accused and Mr. Citriniti scaled the outside wall of the apartment building, unlawfully entered the apartment through an open second-floor balcony door, wearing hoodies and bandanas to mask their faces, immediately broke some glass in a nearby stove and china cabinet, and started their assault on Amar Alawieh by hitting him in the back of the head with a chair. Mr. Alawieh had been sitting at the living room table with his back to the balcony door. Ms. Fridgant, who is Mr. Alawieh’s sister, was also in the apartment by the living room table. Ms. Salaberry was nearby packing some of her things in boxes as she was planning to move from the apartment the following day. The Crown alleges that, in the ensuing brawl that took place in the living room, Mr. Citriniti shot Mr. Alawieh numerous times with an imitation firearm (i.e. a pellet pistol), and also shot Ms. Salaberry a couple of times. At the same time, the Crown alleges, the accused physically assaulted all three of the adult occupants in the apartment.
[3] At the close of the Crown’s case, defence counsel moved for a directed verdict of acquittal with respect to the charges of: (1) assault on Natasha Fridgant; (2) mischief to property under $5,000; and (3) use of an imitation firearm while committing an assault. Defence counsel argued that there was no evidence in support of these three charges, effectively conceding that there was evidence in support of the other four charges. In response, the Crown argued that there was evidence upon which a reasonable jury, properly instructed, could find the accused guilty on these three charges, as well as the other four outstanding charges. During the course of the argument of the application, defence counsel expressly withdrew his directed verdict application with respect to the charge of mischief to property under $5,000. This just left two charges to determine.
[4] After hearing the submissions of counsel, I advised the parties that the directed verdict application was granted with respect to the charge alleging the assault against Natasha Fridgant, but that the application with respect to the use of the imitation firearm was dismissed. I indicated briefly that, in my view, there was no evidence in this case, upon which a reasonable jury, properly instructed, could find that the accused was guilty assaulting Ms. Fridgant. I also indicated, however, that in my view there was some evidence upon which a reasonable jury, properly instructed, could find the accused guilty of all of the remaining offences, including the alleged offence of use of an imitation firearm while committing an assault. I also advised the parties that I would subsequently provide reasons in support of these conclusions. These are those reasons.
B. Directed Verdict Motions – The Applicable Legal Standard
[5] In earlier rulings on similar directed verdict motions in other cases, I have sought to outline the legal standard that must be applied on such applications. See, for example, R. v. Abdo, 2016 ONSC 7957, at paras. 4-11; R. v. Tello, 2018 ONSC 385, at paras. 4-12. Again, my understanding of the law on this subject is as follows.
[6] The law is well-settled that on a directed verdict motion brought by an accused at the close of the Crown’s case, the limited responsibility of the trial judge is to determine whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty upon the charges against the accused. This legal standard applies on all applications for a directed verdict, regardless of whether the case against the accused is based upon direct evidence, circumstantial evidence, or a combination of both kinds of evidence. Moreover, on any such motion the trial Judge must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality or reliability of the evidence, drawing factual inferences from the evidence, or making any determinations of fact. Those are all functions that are strictly reserved for the trier of fact – in this case, the jury. See United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at pp. 1079-1080; R. v. Mezzo, 1986 16 (SCC), [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at p. 160-161; R. v. Morabito, 1949 1 (SCC), [1949] S.C.R. 172, at p. 174; R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, at paras. 2-4.
[7] In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court of Canada confirmed that this same legal standard applies regardless of whether the evidence is direct or circumstantial, but noted that the task of the judge is somewhat more complicated in cases of circumstantial evidence as, in such cases, the judge must determine what potential inferences are reasonably open to the jury from the circumstantial evidence. More particularly, McLachlin C.J.C., delivering the judgment of the court, stated, at para. 23, that answering this question, about available inferences, “inevitably requires the judge to engage in a limited weighing of the evidence,” in the sense of “assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.” In short, the judge asks only “whether the evidence, if believed, could reasonably support an inference of guilt.” Further, and importantly, at paras. 25-32, the Supreme Court reaffirmed the “continuing validity” of the “traditional common law rule” articulated in United States of America v. Shephard. McLachlin C.J.C. stated, at para. 30:
In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.
[8] In addition, as the Supreme Court of Canada confirmed in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 18 and 25(2), this limited weighing process does not involve choosing amongst competing reasonable inferences, which is the sole jurisdiction of the trier of fact, but rather involves determining only the field of potential factual inferences that could reasonably be drawn in the circumstances. See also R. v. Dubois, [1986] S.C.R. 366, at p. 380; R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont.C.A.), at paras. 6-9; R. v. Montour, [2002] O.J. No. 141 (C.A.), at paras. 3-4; R. v. Bogiatzis, [2002] O.J. No. 736 (S.C.J.), at para. 25.
[9] Further, the inferences to be drawn from circumstantial evidence need not be “compelling” or even “easily drawn” in order to be reasonable. If an inference is a reasonable and logical one, the question of whether or not it should ultimately be drawn must be left for the trier of fact. See R. v. G.W. (1996), 1996 427 (ON CA), 93 O.A.C. 1 (C.A.), at para. 62; R. v. Katwaru (2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont.C.A.), at paras. 37-41; R. v. Munoz (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134 (S.C.J.), at paras. 18-22.
[10] Accordingly, at the directed verdict stage of a criminal trial, the trial judge must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact. As Doherty J.A. stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Jackson, 2016 ONCA 736, at para. 7:
In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont.S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.
If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.
[11] In other words, the rule in Hodge’s Case (1838), 1838 1 (FOREP), 168 E.R. 1136, has no application at the directed verdict stage of a criminal trial. Of course, a trial judge will often be required to instruct a jury that, before they find an accused guilty of an offence on the basis of circumstantial evidence, they must be satisfied beyond a reasonable doubt that his or her guilt is the only reasonable conclusion that can be drawn from the whole of the evidence. That standard does not apply, however, at the directed verdict stage of a criminal trial. At the directed verdict stage, if the evidence is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, the case must be left with the trier of fact to determine what inference should be drawn in all of the circumstances of the case. See R. v. Russell, 2001 SCC 53, at paras. 48; R. v. Villaroman, 2016 SCC 33, at paras. 17-22, 32-34; R. v. Jackson, at paras 9-15; R. v. Collins and Pelfrey (1993), 1993 8632 (ON CA), 12 O.R. (3d) 161 (C.A.), at paras. 22-30.
[12] The trial judge must remember, however, that while it is for the jury to choose amongst reasonable inferences available from the evidence, the jury cannot be invited to draw “speculative or unreasonable inferences.” See R. v. Figueroa, 2008 ONCA 106, at para. 35.
[13] In short, as Binnie J. stated, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48, a directed verdict of acquittal is not available if there is “any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction.” See also R. v. E.B., [2004] O.J. No. 3528 (C.A.), at paras. 10-17.
[14] More recently, in R. v. Kelly, 2017 ONCA 920, Doherty J.A., delivering the judgment of the Court of Appeal for Ontario, summarized the legal test on a directed verdict motion as follows, at para. 19:
When the defence moves for a directed verdict of acquittal at the end of the Crown’s case, the trial judge must decide whether there is a basis in the evidence upon which a reasonable jury, properly instructed, could convict. In performing that task, the trial judge does not make findings of fact or credibility, but considers whether a reasonable jury, properly instructed, could, on the entirety of the evidence, favourable and unfavourable to the accused, conclude that the Crown has established guilt. The trial judge must view the evidence in the reasonable light that is the most favourable to the Crown … [citations omitted].
[15] See also R. v. Johnson, 2018 ONSC 1089, at paras. 2-6.
C. Analysis
1. The Alleged Assault on Natasha Fridgant
a. The Factual Background – The Forgetful Witness
[16] Natatsha Fridgant testified as a witness at the trial of this matter. Ms. Fridgant recalled attending inside apartment 205, at 1491 Wilson Avenue, in the early morning hours of November 13, 2015, with a girlfriend, and there meeting her brother, Mr. Alawieh, and Ms. Salaberry and her children. She also recalled, later that night, leaving the apartment with Ms. Salaberry’s children. But, she was seemingly unable to recall any of the events in between these two points in time – when the alleged offences were committed.
[17] When she was asked by the Crown “what happened” while she was in the apartment, Ms. Fridgant said that there was an “incident” that happened “three years ago,” that “obviously” involved some “problem” with the accused, but and that she did not really remember much about “any of this,” or “how things took place,” or any “details” about the incident. She knew only that it ended up with her brother being in the hospital. Ms. Fridgant testified that she did not remember if anything happened to her, but she did not go to the hospital. Ms. Fridgant did not remember anyone being in the apartment other than Ms. Salaberry, her two children, Mr. Alawieh, and her nameless girlfriend.
[18] The memory of Ms. Fridgant was apparently much better at the time of the preliminary inquiry as, at that point in time, she testified, in considerable detail, about the events that took place in the apartment that night, including the details of the alleged assault on her by the accused. When a transcript of her preliminary inquiry testimony was provided to her, to potentially refresh her memory, as permitted by Reference re R. v. Coffin, 1956 94 (SCC), [1956] S.C.R. 191, at pp. 210-213, it apparently failed to in any way refresh her memory as to the “incident” in the apartment that night. She suggested, presumably by way of explanation, that since the time of her preliminary hearing testimony, she has been “drinking a lot more so her memory is a little bit hazy in terms of all this,” and that, because of all her drinking, her “brain is very hazy right now in terms of remembering all of the details.”
[19] The Crown was then permitted to cross-examine her, pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, chap. C-5. Ms. Fridgant was also, of course, cross-examined by defence counsel. Throughout all of the questions that were asked of her, she continued to repeat her mantra that she could not remember anything about what may have happened in Ms. Salaberry’s apartment that night. She agreed that her memory was better at the time of the preliminary inquiry, and she maintained that she was telling the truth at the preliminary inquiry, because she always tells the truth, but Ms. Fridgant steadfastly maintained that she had no present recollection of any of the details of the “incident” in the apartment. Further, Ms. Fridgant denied that she was only pretending that she no longer had any memory of the events, and repeatedly asserted that that it was her drinking since the preliminary inquiry that was the cause of her currently abysmal memory.
[20] The parties are in agreement that, as there is no other evidence from any other source that suggests that Ms. Fridgant was assaulted by the accused that night, if the jury cannot conclude that she “adopted” her preliminary inquiry testimony in her trial testimony, the jury must be directed to find the accused not guilty of this alleged offence.
b. The Adoption of an Earlier Statement – The Applicable Legal Standard
[21] The Crown argued that the jury could conclude that Ms. Fridgant adopted her preliminary inquiry testimony because she acknowledged that she gave that testimony and she agreed that she was telling the truth when she gave that testimony. I disagree. Those circumstances do not, as a matter of law, amount to an adoption of her preliminary inquiry testimony.
[22] The jurisprudence is clear that, in order for a witness to “adopt” the contents of an earlier statement as part of their trial testimony, the witness must: (1) acknowledge having made the earlier statement; and (2) agree that the earlier statement is true according to their current recollection of the events. See R. v. T.(W.P.) (1993), 1993 3427 (ON CA), 83 C.C.C. (3d) 5 (Ont.C.A.), at paras. 35-44, 53; R. v. McCarroll, 2008 ONCA 715, at paras. 33-49, 61; R. v. Cretien, [2009] O.J. No. 810 (S.C.J.), at paras.7-9; R. v. Kelly, 2011 ONCA 549, at para. 41.
[23] This point is aptly illustrated by reference to the decision of the Court of Appeal for Ontario in R. v. McCarroll, which is factually indistinguishable from the present case, and is controlling on this issue.
[24] In McCarroll the accused was convicted of second-degree murder. The deceased died from blunt force injuries from being repeatedly struck in the head with a baseball bat. One of the witnesses called by the Crown was a woman named Chassidy Kidd. The day after the killing, she spoke to the police but denied having any knowledge of the relevant events. Two days later, however, she provided a videotaped statement in which she told the police that she saw the accused take the baseball bat from another man and discard it after the attack. In her preliminary inquiry testimony, Ms. Kidd said that she could not identify who took the baseball bat from the other man, but she consistently maintained that it was the accused that ultimately discarded the bat when the fight was over.
[25] In her trial testimony, however, Ms. Kidd claimed that she was “extremely drunk” that night and experienced a series of “blackouts” which caused her to be unable to recall any of the relevant events. More specifically, she denied having any memory of the accused taking the baseball bat from another man or discarding the bat after the fight was over. Under cross-examination, she agreed that she was telling the truth in her videotaped statement and in her evidence at the preliminary inquiry, but she maintained that she did not “remember anything that happened” that night.
[26] Based on that evidentiary record, the Crown argued that the jury should accept what Ms. Kidd said in her videotaped statement to the police for the truth of its contents. The trial judge also treated this videotaped statement as substantive evidence, instructing the jury that Ms. Kidd “has no present memory of that event, but having seen her previous videotaped statement, she confirmed or adopted that it must have been the truth because she said it to the police in the circumstances that she did.”
[27] The Court of Appeal concluded, at paras. 38 and 40, that the trial judge erred in two respects in relation to this instruction. First, the trial judge erred in concluding that Ms. Kidd had adopted her videotaped statement to the police when there was “no evidentiary basis for that conclusion,” given that Ms. Kidd “had no present recollection of the events it described.” In these circumstances, “[a]doption was simply not possible.” Second, the trial judge erred in that, in any event, the issue of adoption was a matter for the jury to determine, not the trial judge. More specifically, with respect to the first issue, Epstein J.A., delivering the judgment of the court, at paras. 39-41, made the following statements of legal principle as to when it can properly be said that a witness has “adopted” an earlier statement:
Where a witness adopts a prior statement as true, the statement becomes part of that witness’ evidence at trial and is admissible for its truth: R. v. Deacon (1947), 1947 38 (SCC), 89 C.C.C. 1 (S.C.C.), at p. 4. The question becomes whether the witness adopts the prior statement “as being the truth as she now sees it”: R. v. McInroy (1979), 1978 175 (SCC), 42 C.C.C. (2d) 481, at p. 498. As this court said in R. v. T.(W.P.) (1993), 1993 3427 (ON CA), 83 C.C.C. (3d) 5 (C.A.), at p. 23, in order for a prior statement to be incorporated into trial testimony, or ‘adopted’:
The witness must be able to attest to the accuracy of the statement based on their present memory of the facts referred to in that statement. In this sense, adoption refers to both the witness’s acknowledgment that he or she made the prior statement and the witness’s assertion that his or her memory while testifying accords with the contents of the prior statement.
See R. v. Tat (1997), 1997 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont.C.A.), at para. 28, and R. v. Atikian (1990), 1990 6670 (ON CA), 62 C.C.C. (3d) 357 (Ont.C.A.), at p. 364.
The determination of whether the witness adopts all or part of the statement must be made by the trier of fact, in this instance, the jury. However, as a condition of admissibility the trial judge must be satisfied that there is an evidentiary basis on which the trier of fact could conclude that the witness adopted the statement. The witness must acknowledge having made the statement and, based on present memory of the events referred to in the statement, verify the accuracy of its contents.
Kidd did acknowledge having made the statement and did say that she was likely telling the truth when she made it. However, given her selective memory of the events surrounding [the death], Kidd was, at best, only able to vouch for the accuracy of the statement based on circumstances surrounding its recording. She could not continue to assert the truth of its contents: see T.(W.P.), at p. 24.
[28] More recently, in R. v. Kelly, 2011 ONCA 549, this position was reiterated by Doherty J.A., in delivering the judgment of the Court of Appeal for Ontario, at para 41:
Under the prevailing authority a witness cannot adopt a prior inconsistent statement unless that witness has a present recollection of the events referred to in the statement and can attest to the accuracy of the statement based on a present recollection of those events. A witness who has no present recollection of the events but insists that the statement was true because, for example, she would not lie to the police, has not adopted the prior statement and subject to some other rule of evidence, the prior statement is not admissible for its truth: see R. v. T.(W.P.) (1993), 1993 3427 (ON CA), 83 C.C.C. (3d) 5 (Ont.C.A.), at p. 23; R. v. McCarroll (2008), 2008 ONCA 715, 238 C.C.C. (3d) 404 (Ont.C.A.), at paras. 38-39. [The witness] purported to have virtually no recollection of the events she spoke of in her statement. Without that present recollection, her testimony that parts of the statement were true could not constitute an adoption of it.
c. Conclusion
[29] While Ms. Fridgant maintained that she must have been telling the truth in her testimony at the preliminary inquiry, as she always tells the truth, she also maintained that she had no present recollection of any of the details of the “incident” in the apartment. In these circumstances it simply cannot be said that Ms. Fridgant “adopted” her preliminary inquiry evidence as part of her trial testimony. To paraphrase the language of Epstein J.A. in McCarroll, at para. 42, in these circumstances, adoption is “simply not possible” as there is “no evidentiary basis” that could support the conclusion that Ms. Fridgant adopted her preliminary inquiry testimony.
[30] It is, of course, usually the function of the trier of fact, in this case the jury, to determine whether or not a witness has “adopted” an earlier statement as part of their trial testimony. However, as a condition of admissibility I must be satisfied that there is an evidentiary basis on which the jury could conclude that Ms. Fridgant adopted the statement. In the present case, however, as I have indicated, there is simply no evidence upon which a reasonable jury, properly instructed, could conclude that Ms. Fridgant had adopted her preliminary inquiry evidence. Indeed, the evidence is clear that she did not adopt her preliminary inquiry evidence, as she repeatedly and unequivocally claimed that she had no present recollection of any of the details of the “incident” in the apartment on the night in question.
[31] In these circumstances, the directed verdict application brought on behalf of the accused must be granted, and the jury must be instructed to return a verdict of “not guilty” with respect to the charge of the indictment alleging the commission of an assault on Natasha Fridgant.
2. Use of the Imitation Firearm While Committing an Assault
a. Introduction
[32] According to the evidence, the only person that physically used the imitation firearm in the apartment in the early morning hours of November 13, 2015 was Mr. Citriniti. Accordingly, the accused can only be held liable for that offence if there is evidence that he was, in one way or another, a party to the offence committed by Mr. Citriniti.
[33] In my view, there is some evidence in this case, upon which a reasonable jury, properly instructed, could conclude that the accused is guilty as a party to this offence because he intentionally “aided” and/or “abetted” Mr. Citriniti in its commission, within the meaning of s. 21(1)(b) and (c) of the Criminal Code. In addition, in my view there is also some evidence, from which a reasonable jury, properly instructed, could conclude that the accused is guilty as a party to this offence because the accused and Mr. Citriniti formed an intention in common to break into Ms. Salaberry’s apartment and assault and otherwise inflict violence on Mr. Alawieh, and to assist each other therein, and that the accused knew or ought to have known that the commission of this offence by Mr. Citriniti was a probable consequence of carrying out their common unlawful purpose, within the meaning of s. 21(2) of the Criminal Code.
b. The Offence of Using an Imitation Firearm While Committing an Offence
[34] Section 85(2)(a) of the Criminal Code makes it an offence for anyone to use an imitation firearm while committing an indictable offence, whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm. In the present case, the charge against the accused alleges that the imitation firearm was used while committing the indictable offence of “assault.”
[35] As the Supreme Court of Canada observed in R. v. Steele, 2007 SCC 36, at para. 27, the term “use” of a real or imitation firearm has been held to include discharging a firearm, pointing a firearm, pulling out a firearm which the offender has on his person and holding it in his hand to intimidate another person, and displaying or revealing the presence of a firearm for the purpose of intimidation. See R. v. Switzer (1987), 1987 ABCA 23, 32 C.C.C. (3d) 303 (Alta.C.A.); R. v. Griffin (1996), 1996 3210 (BC CA), 111 C.C.C. (3d) 567 (B.C.C.A.); R. v. Rowe, 1951 7 (SCC), [1951] S.C.R. 713; R. v. Langevin (No. 1) (1979), 1979 2999 (ON CA), 47 C.C.C. (2d) 138 (Ont.C.A.); R. v. Cheetham (1980), 1980 2978 (ON CA), 53 C.C.C. (2d) 109 (Ont.C.A.); R. v. Neufeld, [1984] O.J. No. 1747 (C.A.); R. v. Gagnon (1995), 1995 1899 (ON CA), 86 O.A.C. 381 (C.A.). However, something more than mere possession of a firearm, or being “armed” with a firearm, is required in order to establish that the firearm was “used” while committing an indictable offence. The firearm must be “actively employed” in some way. See R. v. Steele, at paras. 28-30; R. v. Fitzwilliams (1992), 79 C.C.C. (3d) 81 (Que.C.A.).
[36] In R. v. Andrade, 2015 ONCA 449, reversing 2014 ONSC 655, leave refused, 2016 CarswellOnt 5734 (S.C.C.), the Court of Appeal for Ontario outlined the appropriate interpretation and application the same statutory language used in s. 85(2) of the Code, in the context of the similar offence of using a firearm while committing an indictable offence. In this regard, Hourigan J.A., delivering the judgment of the court, drew the following important conclusions. First, at para. 29, he concluded that the offence of using a real or imitation firearm during the commission of an indictable offence “requires a distinct conviction” for the specified indictable offence. See also R. v. Pringle, 1989 65 (SCC), [1989] 1 S.C.R. 1645 (S.C.C.), at p. 1654. Second, at paras. 33-36, Hourigan J.A. concluded that the use of the real or imitation firearm must “facilitate” the predicate indictable offence, in that there must be this connection between the use of the firearm and the commission of the indictable offence for which the conviction has been entered. See also R. v. Steele, 2007 SCC 36, at paras. 27-37.
[37] Of course, as the Supreme Court of Canada determined in R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284, at pp. 307-308, the offence of using a firearm is not limited in its application to persons who actually physically use the firearm. An accused may properly be convicted of his offence as a party to another’s use of the firearm, pursuant to ss. 21(1) or 21(2) of the Criminal Code. The “usual rules of complicity apply” in relation to this offence. See R. v. Steele, at para. 33.
c. Liability as an Aider or Abettor
[38] In order to be guilty of any offence as an “aider,” within the meaning of s. 21(1)(b) of the Code, the Crown must prove that the accused: (1) intentionally engaged in some conduct that actually assisted the principal in committing the offence; and (2) intentionally engaged in that conduct for the purpose of aiding the principal in the commission of the offence. Accordingly, as the governing jurisprudence reveals, the mens rea requirement for an “aider,” as reflected in the term “purpose,” has two components: intention and knowledge. The alleged “aider” must have both: (1) intended to assist in the commission of the offence; and (2) known that the perpetrator intended to commit the crime, although the “aider” need not know precisely how the offence will be committed. See R. v. F. W. Woolworth Co. (1974), 1974 707 (ON CA), 3 O.R. (2d) 629 (C.A.), at p. 640; R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, at pp. 994-997, 1001-1004; R. v. Maciel, 2007 ONCA 196, at para. 87-89; R. v. Briscoe, 2010 SCC 13, at paras. 14-18
[39] In order to be guilty of an offence as an “abettor,” within the meaning of s. 21(1)(c) of the Code, the Crown must prove that the accused: (1) said or did something that actually encouraged, instigated, promoted or procured the crime to be committed by the principal; and (2) uttered the words or engaged in the conduct with the intention of encouraging, instigating, promoting or procuring the commission of the offence by the principal. In short, the alleged “abettor” must have intentionally acted to encourage the principal in the commission of an offence. See R. v. Greyeyes, 1997 313 (SCC), [1997] 2 S.C.R. 825, at pp. 837, 842; R. v. Curran (1977), 1977 ALTASCAD 284, 38 C.C.C. (2d) 151 (Alta.C.A.), at pp. 156-157, leave denied, [1978] 1 S.C.R. xi; R. v. Rochon (2003), 2003 9600 (ON CA), 173 C.C.C. (3d) 321 (Ont.C.A.), at paras. 53-61; R. v. Helsdon, 2007 ONCA 54, at para. 43; R. v. Chambers, 2016 ONCA 684, at paras. 36-38.
[40] Mere physical presence at the scene of a crime, and passive acquiescence in its commission, is never enough, standing alone, to justify a conclusion that an accused is a party to the offence as an aider or abettor of that offence. Mere passive physical presence does not establish the culpable participation of an accused in the crime committed by another. Sometimes people are just in the wrong place at the wrong time. However, presence at the scene of the crime can be evidence of aiding and abetting if it is accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence, or attendance at the scene of the crime for the purpose of encouragement of the principal offender. Where it may reasonably be inferred that the accused was acting in concert with the principal offender, then it may also reasonably be inferred that the presence of the accused at the scene of the crime was for the purpose of intentionally aiding or abetting the principal offender in the crime committed. See R. v. Dunlop and Sylvester, 1979 20 (SCC), [1979] 2 S.C.R. 881, at pp. 896-897; R. v. Coney, (1882), 8 Q.B. 534, at pp. 539, 557; R. v. Preston, 1949 64 (SCC), [1949] S.C.R. 156, at pp. 159-160; D.P.P. v. Maxwell, [1978] 3 All E.R. 1140 (H.L.), at p. 1144; R. v. Sparrow (1979), 1979 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont.C.A.), at pp. 457-458; R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, at p. 668; R. v. Wood (1989), 1989 7193 (ON CA), 51 C.C.C. (3d) 201 (Ont.C.A.), at pp. 220-221, leave denied, [1990] S.C.C.A. No. 73; R. v. Sauvé and Trudel (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont.C.A.), at para. 136, leave denied, [2005] 1 S.C.R. xv; R. v. Arias-Jackson, 2007 SCC 52, at paras. 3, 9.
[41] For example, in the leading Supreme Court of Canada decision in R. v. Dunlop and Sylvester, the two accused were alleged to have been members of a group of 18 men, members of an outlaw motorcycle club, who gang-raped a young woman in an isolated and remote area by a former dump. The complainant identified the two accused as two of the men who had engaged in this unlawful sexual intercourse with her without her consent, as she was held down by other members of the club. The accused testified that they had attended a meeting of the club at the dump earlier in the evening. They agreed that they were also present in a beverage room where the complainant and her friend spent some time that night. They also testified that, still later, they delivered a quantity of beer to the area of the dump. The accused Dunlop testified that, while they were in the area of the dump, he saw a female engaged in sexual intercourse – he could not say with whom, but he believed that it was another member of the motorcycle club. After some three minutes, he and Sylvester left the area.
[42] The trial judge in Dunlop and Sylvester instructed the jury as to the potential liability of the accused as principal offenders, but also instructed them on the potential application of the parties’ provisions of the Criminal Code. Further, during the course of their deliberations, the jury asked the following question: “If the accused were aware of a rape taking place in their presence and did nothing to prevent or persuade the discontinuance of the act, are they considered as an accomplice to the act under law?” In responding to this question, the trial judge might have left the impression with the jury that “the accused could be parties to the offence if they knew that an offence was being committed and failed to do anything to hinder or prevent it.”
[43] The Supreme Court of Canada ultimately set aside the convictions of the accused. Dickson J., delivering the judgment of the majority of the court, thoroughly reviewed the jurisprudence on party liability and drew the following conclusions, at p. 896:
Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement. There was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape of [the complainant]. There was no evidence of any positive act or omission to facilitate the unlawful purpose. One can infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that is not sufficient. A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended … One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape. On this issue, the Crown elicited no evidence.
[emphasis added – citations omitted]
[44] There must be some connection between the offence committed by the principal and the alleged acts or aiding or abetting, but that connection need not be a causal connection. Indeed, any act or omission committed by the alleged party to the offence, that occurs before or during the offence, and which “somehow and to some extent furthers, facilitates, promotes, assists or encourages” the principal offender in the commission of the offence is sufficient to establish party liability. Accordingly, for example, an individual performing the role of a “lookout” during the commission of an offence by the principal offender, can properly be viewed as intentionally aiding or abetting the principal offender, if the presence of the “lookout” helps the offender commit the offence, or encourages the offender to commit the offence, and the “lookout” intends to provide that assistance or encouragement, even if the “lookout” is ultimately not required to perform any active role in the commission of the offence. Similarly, any act by an alleged party which, for example, tends to prevent or hinder any interference with the execution or accomplishment of the criminal offence by the principal offender act is also sufficient to establish party liability as an aider or abettor. See R. v. Dooley, 2009 ONCA 910, at para. 118-124, leave denied, [2010] S.C.C.A. Nos. 83 and 179; R. v. Alcantara, 2015 ABCA 258, at paras. 9, 11-15, affirmed, R. v. Knapczyk, 2016 SCC 10; R. v. Mariani, 2007 ONCA 329, at paras. 52-56, 62.
[45] In my view, there was ample evidence in this case, from which a reasonable jury, properly instructed, could conclude that the accused and Mr. Citriniti were acting in concert in their activities in Ms. Salaberry’s apartment, in that they had earlier agreed to attend at her apartment building in the middle of the night, while wearing hoodies and masks to hide their identities, and to scale the outside of the building, enter her apartment through the second-floor balcony door, which they anticipated would be open, and to assault and otherwise inflict violence on Mr. Alawieh, who they anticipated would be present, and to assist and encourage each other in the execution of that plan. It was also open to the jury to reasonably conclude, based upon the evidence in this case, that the accused knew that Mr. Citriniti was in possession of an imitation firearm (i.e. a pellet pistol) and that he was planning on using it during the execution of their plan, to inflict injury on Mr. Alawieh, in order to facilitate their assault on him. Accordingly, there is more than the necessary “air of reality” to the Crown’s theory that the accused is guilty of the offence of using an imitation firearm while committing the indictable offence of assault, as a party to that offence as a potential “aider” and/or “abettor.”
d. Common Unlawful Purpose – Liability for Incidental Offences
[46] The legislative intent behind the enactment of s. 21(2) of the Criminal Code, which reflects the common law position on accessorial liability, is to discourage and deter criminal enterprises, and to encourage persons who do participate in criminal enterprises to ensure that their accomplices do not commit any other offences beyond their planned common unlawful purpose. It accomplishes that legislative goal by creating a form of party liability based upon the following elements: (1) that the accused and others formed an intention in common; (2) that the nature of their common intention was to carry out an unlawful purpose and to assist each other therein; (3) that, in carrying out the common purpose, one of the members of the conspiracy committed some other incidental offence; and (4) that the accused knew or ought to have known that the commission of this other incidental offence was a probable consequence of carrying out their common unlawful purpose. In this way, s. 21(2) of the Code extends party liability for incidental offences committed by other members of their group, where such incidental offences were subjectively or objectively a probable consequence of the carrying out of their common unlawful purpose. This provision has no application, however, where the members of the group do precisely what they set out to do. In other words, the common unlawful purpose of the group must be different than the incidental offence committed by one member of the group in order for s. 21(2) of the Criminal Code to have application. See R. v. Zanini, 1967 16 (SCC), [1967] S.C.R. 715, at pp. 718-720; R. v. Isaac, 1984 130 (SCC), [1984] 1 S.C.R. 74, at p. 81; R. v. Simpson and Ochs, 1988 89 (SCC), [1988] 1 S.C.R. 3, at pp. 11-15; R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731, at pp. 744-745, 746; R. v. Jackson, 1993 53 (SCC), [1993] 4 S.C.R. 573, at pp. 583-588; R. v. Rochon, at paras. 62-63; R. v. Quinn, 2009 ONCA 817, at para. 12; R. v. Simon, 2010 ONCA 754, at paras. 23-27, 40-43, leave denied, [2010] S.C.C.A. No. 459; R. v. Ferrari, 2012 ONCA 399, at para. 62; R. v. McDonald, 2013 ONCA 442, at para. 21; R. v. Cadeddu, 2013 ONCA 729, at paras. 50-62.
[47] In R. v. Simon, Watt J.A., delivering the judgment of the Court of Appeal for Ontario outlined the principles concerning the interpretation and application of s. 21(2) of the Criminal Code as follows, at paras. 40-43:
Section 21(2) extends liability for crime in two respects. The first has to do with the persons whose participation in an unlawful enterprise may attract liability. And the second relates to the offence for which participants in an unlawful criminal enterprise may be held liable …
The persons to whom s. 21(2) extends liability are those whose participation in the offence actually committed would not be captured by s. 21(1). These persons have participated in a prior unlawful enterprise with others and either knew or, in most cases at least, should have known that one (or more) of the other participants in the original enterprise would likely commit the offence charged in pursuing their original purpose.
The offence to which s. 21(2) extends liability is not the original “unlawful purpose” to which the subsection refers. The “offence” of s. 21(2) is a different crime, one that a participant in the original “unlawful purpose” commits in carrying out that original purpose. And so it is that we sometimes say that s. 21(2) extends liability to those engaged in one unlawful purpose to incidental or collateral crimes: crimes committed by any participant (in the original purpose) in carrying out the original purpose that the other knew or should have known would likely be committed in pursuing the original purpose.
Under s. 21(2), the liability of a party to a common unlawful purpose for an incidental crime committed by another participant requires proof of the party’s participation in the original unlawful purpose, the commission of the incidental crime by another participant and the required degree of foresight of the likelihood that the incidental crime will be committed. Consistent with general principle, each of these essential elements, earlier described as “agreement”, “offence” and “knowledge”, must be supported by an adequate evidentiary record to warrant submission of this basis of liability to the jury. What we require is some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation … [citations omitted]
[48] In my view, there was ample evidence in this case, from which a reasonable jury, properly instructed, could conclude: (1) the accused and Mr. Citriniti formed an intention in common to carry out an unlawful purpose and to assist each other therein; (2) their common unlawful purpose was to break into Ms. Salaberry’s apartment and assault and otherwise inflict violence on Mr. Alawieh, who they anticipated would be present; (3) in carrying out this common unlawful purpose, Mr. Citriniti committed the incidental offence under s. 85(2) of the Criminal Code, of using an imitation firearm while committing, and for the purpose of facilitating, the assault on Mr. Alawieh; and (4) the accused knew or ought to have known that the commission of this incidental offence would be a probable consequence of carrying out the common purpose. Further, it was open to the jury to reasonably conclude, based upon the evidence in this case, that while the accused knew that Mr. Citriniti was in possession of an imitation firearm (i.e. a pellet pistol), it was not part of their original plan that he use the firearm during the assault on Mr. Alaweih, but that, while they were both assaulting Mr. Alawieh, Mr. Citriniti used the imitation firearm to facilitate their assault on Mr. Alawieh, and that the accused knew or ought to have known that this incidental offence was a probable consequence of the carrying out of their common unlawful purpose.
e. The Evidence in Support of Party Liability
[49] The following evidence provides, in my view, a solid evidentiary basis upon which to instruct the jury that they could find the accused guilty of the offence of using an imitation firearm while committing the indictable offence of assault, contrary to s. 85(2) of the Criminal Code, based on the theory: (1) that the accused intentionally aided and/or abetted the commission of this offence by Mr. Citriniti; or (2) that the accused knew that this incidental offence by Mr. Citriniti was a probable consequence of the carrying out of their common unlawful purpose.
[50] Ms. Salaberry and the accused had been involved in a romantic relationship, starting sometime in 2013 and lasting approximately 18 to 24 months. For a time, they lived together in apartments in the building located at 1491 Wilson Avenue, including the apartment where the alleged offences took place. According to Ms. Salaberry, their relationship ended, around the end of May of 2015, because they “just did not get along.” The accused was “not too happy” about their “breakup” and did not seem to accept it. She explained that the accused was “persistent” and would not take “no” for an answer. He did not seem to understand that it was “done.” Ms. Salaberry testified that she found his persistence “annoying,” and she would tell him that she did not want to argue, but that “no means no.” Ms. Salaberry explained that it got to the point, around August of 2015, where she just “blocked” the accused from being able to contact her on her phone or through Facebook and she stopped talking to him.
[51] Ms. Salaberry testified that she first met her current boyfriend, Amar Alawieh, through the accused, as he and Mr. Alawieh were friends. She started her romantic relationship with Mr. Alawieh in about September of 2015, and they now live together, but they were not living together in November of 2015.
[52] Ms. Salaberry testified that, at one point, in the early morning hours of November 13, 2015, as she was in the living room putting something into a box, she heard “glass shatter.” When she turned around, she saw two men by the balcony door. They were wearing hoodies over their heads, and bandanas across their faces, over their noses, below their eyes, covering the bottom of their faces. One of the men was pointing a gun at them. While Ms. Salaberry did not initially know the identities of these men, she shortly discovered that the man holding the gun was Boris Citriniti, and the other man was her ex-boyfriend, the accused.
[53] As to what happened next, Ms. Salaberry testified that a chair flew over towards the table and hit Mr. Alawieh in the back of the head. She did not know which of the two men threw the chair. This started a big fight, and the gun started “going off.” Ultimately, Ms. Salaberry realized that it was not a real gun and, when she did, she started fighting herself with the two men. While the fight was ongoing, Ms. Salaberry realized that one of the men was the accused, as she recognized his voice when he repeatedly said, to Mr. Alawieh, words to the effect of “You wanna fuck my girl” or “You like fucking my girl.” Further, Ms. Salaberry saw the accused’s face during the course of their violent struggle, in which she was fighting for her life. Ms. Salaberry testified that the accused was wearing a white bandana, a dark hoodie over his head, and dark clothing.
[54] Subsequently, the police located a white bandana on the floor of the apartment and the single-source male DNA profile found on the central area of this bandana matched the DNA profile of the accused with a “Random Match Probability” (i.e. the estimation of the probability that a randomly selected individual unrelated to the accused would coincidentally share the same observed DNA profile) was 1 in 1.0 quadrillion.
[55] Ms. Salaberry testified that the other man was also wearing dark clothing and a hoodie. He was also the man holding the black handgun. At one point, he was pointing it directly into Ms. Salaberry’s face. He was the man who was also “shooting the gun everywhere,” seemingly “out of control” in his shooting of the gun. Ms. Salaberry learned that this man was Boris Citriniti, as he eventually lost his bandana in the struggle, and she recognized his face. Ms. Salaberry knew Mr. Citriniti to be a long-time friend of the accused, and she had met him when she was dating the accused. Mr. Citriniti had been to her home “a million times,” as they used to be friends.
[56] With respect to the details of the “struggle,” Ms. Salaberry testified it was just a “big brawl” in her apartment. Chairs were flying – punches were flying. As Mr. Citriniti was shooting the gun everywhere, the accused was standing very close to him, perhaps two or three feet or a meter away, hitting and punching Mr. Alawieh in his head. At one point, Mr. Citriniti hit Mr. Alawieh on the back of his head with his gun. At first, Mr. Alawieh was just trying to cover and protect himself, and later he started fighting back. Both Mr. Alawieh and Ms. Salaberry were hit with pellets from the gun being shot by Mr. Citriniti.
[57] Ms. Salaberry testified that, at one point, after everyone had been “fighting” for a couple of minutes, she heard Mr. Citriniti tell the accused, words to the effect of “okay, we got them good; let’s go; we got them good; the bitch’s face is bleeding; let’s go; we got them good.” Ms. Salaberry explained that, at this point, Mr. Alawieh’s face was bleeding. Shortly thereafter, Mr. Citriniti and the accused exited the apartment the same way they came in – from the second-floor balcony of the apartment. Ms. Salaberry estimated that the entire incident, from start to finish, happened “fast,” and would have lasted no more than five or ten minutes.
[58] I am satisfied that the jury could reasonably infer that these comments by Mr. Citriniti, signaling to the accused that they should stop their assault on Mr. Alawieh and leave the apartment, were uttered “in furtherance” of their common unlawful purpose and are therefore admissible against the accused. See R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938, at pp. 943-948; R. v. McNamara (No.1) (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont.C.A.), at p. 441; R. v. Bogiatzis, 2010 ONCA 902, at paras. 42-43; R. v. Magno, 2012 ONSC 4001, at paras. 7-10, 27-31; R. v. Khiar, 2015 ONSC 286, at paras. 9-11.
[59] Mr. Marlou Amante, the apartment building superintendent testified that he was awakened by his wife as a result of the noise coming from Ms. Salaberry’s apartment, and that when he saw the two men exit her second-floor balcony, and scale the wall back down to the ground, he saw both of them carrying something that appeared to be a gun. With respect to the first man that left the apartment and ran away (Mr. Citriniti, according to Ms. Salaberry), Mr. Amante actually “saw a gun” in his hand. However, Mr. Amante also maintained that he also saw the second man who left the apartment (the accused, according to Ms. Salaberry) also in possession of what appeared to be a gun – a black object in the shape of the letter “L.”
[60] Mr. Amar Alawieh testified that, as a result of the events in the apartment on the night of November 13, 2015, he suffered “lots of marks and bruises” to various parts of his body, and wounds from the BBs to his face and chest area – which he did not have prior to that night. Mr. Alawieh explained that the silver BBs that were lodged in various parts of his body were surgically removed, from his shoulder, his chest and his face. He noted that he still has scars from these BB wounds to this day. By counting his scars, Mr. Alewieh estimated that the doctors removed eight or nine BBs from his body.
[61] Cst. Diane Noto, an officer with the Toronto Police Service, testified that when she executed a search warrant on the blue Honda Civic vehicle that belonged to the accused she found all of the following:
• Cst. Noto found a single blood-stained running shoe on the floor of the back seat of the vehicle. This shoe matched the single running shoe the police found in the living room of Ms. Salaberry’s apartment.
• Cst. Noto found a blood-stained, grey-coloured, hooded, zippered, long-sleeve, sweater on the passenger’s rear seat.
• Cst. Noto found, in an open compartment in the front console area of the car, a loose collection of round pellets. There was a total of 167 black pellets, and 7 smaller silver pellets. She also found a clear plastic container which, when new, according to the label, contained 1500 steel BBs. This container was found in another open compartment in the front console area of the vehicle. The container was still “fairly full.” The silver pellets found in the accused’s vehicle are just like the silver pellets that were surgically extracted from the wounds suffered by Mr. Alawieh.
• Cst. Noto found a wide variety of documentation in the name of the accused, including his Health Card and Canadian Passport.
f. Conclusion
[62] In my view, from this body of evidence, a reasonable jury, properly instructed, could conclude that the accused was a party to the s. 85(2) offence committed by Mr. Citriniti by drawing one of the following conclusions.
[63] First, the jury could conclude that the accused intentionally “aided” or “abetted” Mr. Citriniti in his shooting of Mr. Alawieh with the imitation firearm, in that he broke into the apartment with Mr. Citriniti, knowing that Mr. Citriniti had the imitation firearm in his possession and knowing that he was planning to use it to shoot Mr. Alawieh to facilitate their assault on him, and that the accused went to the apartment for the purpose of helping or encouraging Mr. Citriniti to commit that offence of “using a firearm while committing an assault.
[64] Second, and alternatively, the jury could conclude that the accused knew or ought to have known that Mr. Citriniti’s use of an imitation firearm while they were committing an assault on Mr. Alawieh, to facilitate that assault, was a probable consequence of the carrying out of their common unlawful purpose, of breaking into the apartment of Paola Salaberry and assaulting and otherwise inflicting violence on Mr. Alawieh, but that it was not part of their original plan.
[65] There may be, of course, other inferences and conclusions that a reasonable jury, properly instructed, might draw from the evidence that I have outlined. However, as Doherty J.A. indicated in R. v. Jackson, at para. 7, on any directed verdict application, the trial judge “takes the case for the Crown at its highest” in that the trial judge notionally “accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown.”
D. Conclusion
[66] In conclusion, for these reasons, and as I have already advised the parties, I am satisfied that the application for a directed verdict of acquittal should be granted in relation to the charge that the accused committed an assault against Natasha Fridgant, but that the application should otherwise be dismissed.
Kenneth L. Campbell J.
Released:
COURT FILE NO.: CR-17-4/178
DATE: 20180814
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
JOHNATHAN ALVAREZ-MAGGIANI
Ruling
Directed Verdict Application
K.L. Campbell J.
Released: August 14, 2018