Court File and Parties

COURT FILE NO.: CR-24-116-00 DATE: 2024-11-27

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING H. Bracken and D. Pierce, for the Crown

- and -

Stephan Parr and Amy Rose-Podnar I. McCuaig, for Stephan Parr S. Jeethan, for Amy Rose-Podnar Accused

HEARD: October 17, 2024, at Thunder Bay, Ontario

Mr. Justice F. Bruce Fitzpatrick

Ruling on Question of Law

[1] On October 17, 2024, I gave the following oral decision:

[2] The Crown has closed its case. The defence has elected not to call evidence. A pre-charge conference has been held. Counsel have submitted a number of changes to the charge which have been accepted. Apparently, a few minor changes remain. And now counsel have identified another potential issue that could substantially affect the charge and the final submissions that counsel will make to the jury.

[3] The Crown theory in this case is that Mr. Parr and Ms. Rose-Podnar are liable to be convicted for manslaughter on two different routes. The Crown asserts Mr. Parr is also liable to be convicted of manslaughter on a third route, namely that of forming a common unlawful intention with Mr. Lozoomi to rob or attempt to rob the victim Mr. Warsame.

[4] This third route is reflected in the current amended draft of the charge.

[5] Section 24 of the Criminal Code has a bearing on this aspect of the charge. It provides:

Attempts

24 (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

[6] Counsel now rightly point out that I must first rule if the actions and intentions of Mr. Parr as demonstrated by the evidence constitute an attempted robbery, as this is a question of law by operation of section 24(2) of the Code.

[7] Counsel have agreed to provide written submissions on the issue.

[8] I have reviewed these submissions. I am persuaded by the arguments of the Crown and I conclude that the evidence delivered at this trial in respect of Mr. Parr demonstrates his actions and intentions were indicative of, among other things, an attempted robbery rather than mere preparation to commit the offence of robbery.

[9] Written reason to follow.

[10] Here are those reasons.

[11] The primary evidence relied upon by the Crown to assert Mr. Parr was involved in an attempt to rob Mr. Warsame on January 12, 2019, was contained in a video which is part of the evidence. The video was slide 40 of Exhibit 40. It shows Mr. Parr and Mr. Lozoomi at 625 Fulton Blvd from 10:23 to 10:33 pm.

[12] The Crown also relies on the text and communications between Mr. Parr and Mr. Lozoomi on January 12, 2019. In addition, the Crown points to other evidence including Mr. Parr driving the Blue Dodge Ram to demonstrate cooperation between the two. Also, the Crown says Mr. Joiles testified he and Mr. Lozoomi and Mr. Dick had entered 645 Sherrington (a building in the vicinity of 625 Fulton) at 8:59 pm in an attempt to rob Mr. Warsame.

[13] Counsel for Mr. Parr argues that the evidence discloses merely preparatory actions, at most. While there is limited evidence of a relationship between Mr. Lozoomi and Mr. Parr, the evidence discloses some sense of Mr. Lozoomi's purpose, but Mr. Parr does not need to share that purpose. Mr. Parr's mental state and actions must be assessed on their own. Mr. Parr is a drug dealer who is meeting his supplier at an apartment building. While Mr. Lozoomi makes an effort to obscure himself, Mr. Parr does not seem concerned about his identity. Communications between Parr and Lozoomi must also be considered against the backdrop of contemporaneous communications with Dennis Crupi on January 12, 2019. Further, Mr. Parr's attendance in the area of 137 Finlayson (according to the cell phone records) just before this meeting could suggest Mr. Parr is looking for Mr. Lozoomi, in the place where he has met him a few times and picked up the truck at 9 am, as Mr. Lozoomi is known to be his supplier.

The Law

[14] In R. v. Cline (1956) 115 CCC 18 the Ontario Court of Appeal held that there can be no general test to distinguish attempt from preparation. Nevertheless, the Court set out six propositions to assist trial courts in determining such issues. In R. v Root, 2008 ONCA 869, [2008] OJ No 5214 at paras. 93 through 100 Watt J.A. stated:

93 Under s. 24(2) of the Criminal Code, whether conduct by a person who intends to commit a crime is mere preparation or has progressed beyond it to constitute the actus reus of an attempt is a question of law. Designation of a judge's decision to characterize an accused's conduct as mere preparation or the actus reus of an attempt as a question of law is of particular importance in cases like this where the appellant's right of appeal is restricted to questions of law alone.

94 In every case of an attempt to commit an offence, the mens rea of the substantive offence will be present and complete. In every attempt, what is incomplete is the actus reus of the substantive offence. But incompleteness of the actus reus of the substantive offence will not bar a conviction of attempt, provided the actus reus is present in an incomplete, but more than preparatory way. Dynar at paras. 73 and 74.

95 The actus reus may be but does not have to be a crime, tort or even a moral wrong. R. v. Cline, [1956] O.R. 539, at p. 550 (C.A.).

96 The authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between mere preparation, on the one hand, and an attempt on the other. We leave the determination of where on the continuum the conduct lies to the common sense judgment of trial judges. R. v. Deutsch, [1986] 2 S.C.R. 2 at pp. 22-23.

97 The distinction between preparation and attempt is a qualitative one involving the relationship between the nature and quality of the act said to constitute the attempt and the nature of the substantive offence attempted in its complete form. Deutsch at p. 23.

98 To determine on which side of the preparation/attempt divide an accused's conduct falls, a trial judge should consider the relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished. Deutsch at p. 23.

99 Relative proximity may give an act, which might otherwise seem to be mere preparation, the quality of an attempt. Deutsch at p. 26; R. v. Henderson, [1948] S.C.R. 226 at p. 245. Further, an act on its face an act of commission does not lose its quality as the actus reus of an attempt simply because further acts are required, or because a significant period of time may elapse before the completion of the substantive offence. Henderson at p. 244; Deutsch at p. 26.

100 To constitute the actus reus of an attempt, the act of an accused need not be the last act before the completion of the substantive offence. To constitute the actus reus of an attempt, an act must be sufficiently proximate to the intended crime to amount to more than mere preparation to commit it. This requirement of proximity, expressed in the divide between preparation and attempt, has to do with the sequence of events leading to the crime that an accused has in mind to commit. To be guilty of an attempt, an accused must have progressed a sufficient distance (beyond mere preparation) down the intended path. Williams, Criminal Law (The General Part), at p. 625. An act is proximate if it is the first of a series of similar or related acts intended to result cumulatively in a substantive crime.

Analysis

[15] From my review of the evidence, I am persuaded that Mr. Lozoomi and Mr. Parr were attempting to rob some person or location when they are shown on video attending at 625 Fulton in the evening of January 12, 2019. The conduct of Mr. Parr shown on video using a rag to cover his hand while entering the building suggests to me that he was trying to leave no fingerprints on the door. This leads me to conclude his mental state was that of anticipating an imminent act of robbery. If he was just preparing to rob the place, that would place the act some time in the future where it could be imagined that other fingerprints of other tenants would supplant his on that main entrance door. Also, the video shows Mr. Lozoomi having covered his hand with his hoodie sleeve, presumably to avoid leaving fingerprints. Also, if Mr. Parr was simply preparing to conduct a robbery, one wonders why he would have waited for Mr. Lozoomi to come in the building or had him there at all. He could have done “reconnaissance” on his own. Relying on the direction of the Court of Appeal in R. v. Root at para. 96 and R v. Deutsch, [1986] 2 S.C.R. 2 at pp. 22-23 my common sense tells me that the fact they stayed together in the building is indicative of the fact they expected to do the robbery then and not later. The pair were “well down the path of robbery” using language from paragraph 100 of R. v. Root.

[16] Also, I assess that Mr. Parr’s conduct of pulling back his hoodie and looking at the camera while at the entrance door was an instance of carelessness rather than a lack of concern about being detected. He quickly ducked under the camera once he noticed it was there.

[17] It seems to me that because the premises was a multi-residential dwelling, there were two things that barred Mr. Parr and Mr. Lozoomi from robbing a person who was either there, or had valuable possessions there at the time. They were the locked doors in the building. Typically for most multi-residential buildings these days the main entrance requires non residents to be buzzed in or do what Mr. Parr did, an old newspaper carrier trick of waiting for some resident to come along and then sneak in behind them. The pair made it past the first door. They either could not find, could not get past or just did not get picked up on video at the second door they were seeking. I note there is a four-minute gap in the video between the time they are shown entering at the front door and the next shot in a stairwell where Mr. Lozoomi is showing looking out an exit door.

[18] For these reasons I conclude that the evidence delivered at this trial in respect of Mr. Parr demonstrates his actions and intentions were indicative of, among other things, an attempted robbery rather than mere preparation to commit the offence of robbery.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: November 27, 2024