Court File and Parties

COURT FILE NO.: CR-17-92 DATE: 20190429 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – EBENEZER AMPADU, JILLIAN CLARE, JAMES PANICCIA and JULIAN ZENCZUK Defendants

Counsel: Indy Kandola and Frederick Temple for the Crown Jessica Sickinger for Mr. Ampadu Leo Kinahan for Ms. Clare Daniel MacAdam for Mr. Paniccia Salvatore Caramanna and Anthony Bugo for Mr. Zenczuk

HEARD: April 29, 2019

Supplemental reasons on directed verdict applications

BOswell J.

[1] The defendants are on trial for manslaughter, assault with a weapon and assault causing bodily harm.

[2] The Crown’s case in chief concluded on April 23, 2019. The next day counsel made submissions on applications brought by each of the defendants for directed verdicts of acquittal on all counts with one exception. The exception was a concession on the part of Mr. Zenczuk that the Crown has adduced sufficient evidence to warrant leaving the charge of manslaughter against him in the hands of the jury.

[3] On April 28, 2019 I released a ruling by email to counsel setting out my disposition of the defence applications and my reasons in support of the ruling. In short, I withdrew the charge of assault with a weapon entirely. I withdrew the charge of manslaughter against Mr. Ampadu and Mr. Paniccia. And I withdrew the assault causing bodily harm charge against Mr. Zenczuk and Ms. Clare.

[4] In the course of my ruling I set out what I understood the parties’ positions to be. With respect to the Crown I expressly indicated that they were not relying on s. 21(2) of the Criminal Code in terms of establishing the culpability of any or all of the defendants for the count of manslaughter.

[5] This morning, Crown counsel expressed a concern that I misunderstood their position. Mr. Temple indicated that the Crown in fact is relying on s. 21(2) to ground the liability of all of the defendants for manslaughter.

[6] In the result, I heard supplemental submissions from the Crown on the point. For the reasons that follow, a consideration of s. 21(2) makes no difference to the outcome of the directed verdict applications.

Section 21(2)

[7] A concise, yet thorough, description of s. 21(2) – its purposes and application – was provided by Watt J.A. in R. v. Simon, 2010 ONCA 754, leave to appeal to the Supreme Court of Canada refused, [2010] S.C.C.A. No. 459. This description was later repeated by Strathy J.A., now C.J.O., in R. v. Cadeddu, 2013 ONCA 729 at para. 51. It is as follows:

Persons who participate in the offence actually committed, whether as a principal, an aider or an abettor, have their liability determined under s. 21(1).

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: R. v. Simpson, [1988] 1 S.C.R. 3, at p. 15; R. v. Turkiewicz, Barrow and MacNamara (1979), 50 C.C.C. (2d) 406 (Ont. C.A.), at p. 409; R. v. Howard and Trudel (1983), 3 C.C.C. (3d) 399 (Ont. C.A.), at p. 408.

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: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 83; R. v. Isaac, [1984] 1 S.C.R. 74, at p. 81; R. v. Sparrow (1979), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458.

The Position of the Crown

[8] Briefly stated, this case involves a group confrontation. A car full of six young adults drove past three drunk men on a downtown street. Words were exchanged between the people in the vehicle and the people on the road. The vehicle turned around and came back. One male got out. Within about five seconds, one of the pedestrians punched that male. One of the other males in the vehicle got out to assist his friend and together they struggled with the male who threw the punch.

[9] Somewhere along the line one of the other pedestrians appears to have engaged with someone else from the car. This second pedestrian may have been punched. Whatever the reason, he fell to the ground and struck his head on the pavement. He sustained a serious head injury and died.

[10] The Crown’s position is that the occupants of the car – or at least the four defendants – formed a common intention to assault the pedestrians. Each of the defendants participated in the attack. Each is culpable for their own actions and for the actions of the others.

The Directed Verdicts

[11] In my ruling on the directed verdict applications, reported as R. v. Ampadu, 2019 ONSC 2574, I concluded, amongst other things, that there was insufficient evidence in the record to reasonably support an inference that there was a common intention amongst the defendants to commit a group assault on the pedestrians. I found that there was no evidence that Mr. Ampadu and/or Mr. Paniccia actively participated in an unlawful assault on the deceased and could not, as such, be culpable as co-principals to the alleged manslaughter. I further ruled that there was insufficient evidence in the record to reasonably support an inference that either of Mr. Ampadu and Mr. Paniccia had the requisite state of mind to be culpable as an aider or abettor to the alleged manslaughter.

Section 21(2) Revisited

[12] I will accept that I misunderstood the Crown’s position and that they are indeed relying on s. 21(2) as a route to culpability for manslaughter with respect to anyone who did not actively participate in an assault on the deceased.

[13] The route to culpability under s. 21(2), however, would require the Crown to establish the three essential elements of agreement, offence and knowledge to the reasonable doubt standard. More particularly, the Crown must prove beyond a reasonable doubt that:

(i) The defendants agreed with one another to commit an unlawful offence. In this case that means the assault on the pedestrians, as alleged by the Crown;

(ii) While carrying out the unlawful offence agreed upon, one of the defendants committed a different, incidental offence. In this case, the “incidental” offence is arguably the culpable homicide; and,

(iii) The other participants in the original enterprise had the requisite state of mind. Specifically that they knew or ought to have known that the incidental offence would likely be committed during the course of carrying out the common unlawful act agreed upon.

[14] As is readily apparent, the first of the essential elements requires the Crown to establish a common intention on the part of the defendants to commit a group assault on the pedestrians. I have already ruled, however, that the evidentiary record does not reasonably support such a finding.

[15] In the result the purported s. 21(2) route to culpability for manslaughter is not capable of surviving the directed verdict applications.

Boswell J.

Released: April 29, 2019