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Criminal - Liability. R. v. Massicotte [theory of liability]
In R. v. Massicotte (Ont CA, 2026) the Ontario Court of Appeal considers criminal 'theory of liability', which seems to be just that - advanced by the Crown at some point (opening?) in the trial:[37] It is open to a trial judge to decide a case based on a different theory of liability than that advanced by the Crown: R. v. Groot (1998), 1998 CanLII 2151 (ON CA), 41 O.R. (3d) 280 (C.A.), at pp. 287-88, aff’d 1999 CanLII 672 (SCC), [1999] 3 S.C.R. 664; Pickton, at para. 19. However, trial fairness requires that an accused person must be put on notice of the alternative route of liability in order that they may make full answer and defence.
[38] In R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1 (C.A.), the trial judge instructed the jury on a route to conviction that the Crown did not advance, and which the defence did not know would be made available. In allowing the appeal from conviction, Charron J.A. (then a member of this court) said, at para. 162, that the appellant was prejudiced by “the trial judge’s failure to notify counsel of his intention to charge the jury on this additional theory of liability before counsel’s final address to the jury.”
[39] Similarly, in R. v. R.H., 2022 ONCA 69, 78 C.R. (7th) 405, Nordheimer J.A. wrote, at para. 23:it is fundamentally unfair to convict an accused person on a basis of which they are unaware and which they have not had an opportunity to respond. …At the very least, when the trial judge became aware that he might convict on that basis, he ought to have alerted counsel to that possibility and asked for their submissions. See also R. v. Levely, 2022 ONCA 632, at para. 58; R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, at paras. 64-67.
[40] This court has also recognized that, when counsel is put on notice of a new theory of liability, in addition to making further submissions, re-opening the case may overcome potential prejudice. But when a new theory is introduced at a very late stage of the trial, re-opening may be an inadequate and unrealistic remedy: see R. v. Lai, 2022 ONCA 344, 81 C.R. (7th) 394, at paras. 13-14.
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[47] What should happen when a trial judge considers rejecting an important Crown concession on liability in a criminal trial? I find the approach prescribed in R. v. White, 2019 BCCA 461, to be helpful. Mr. White was charged with a number of offences that resulted from a vehicle stop, including possession of fentanyl for the purpose of trafficking. In final submissions, the Crown conceded that it could not prove that the fentanyl was possessed for the purpose of trafficking and indicated it was proceeding on the lesser offence of simple possession. Without giving notice to the parties, the trial judge found the appellant guilty of possessing fentanyl for the purpose of trafficking (and other offences).
[48] The Crown agreed that the appeal should be allowed and the verdict substituted by one of simple possession. In acceding to this joint request, Abrioux J.A. provided the following helpful summary of the applicable principles, at paras. 36-37:While I accept that it was open to the judge to reject the Crown's concession and reach his own conclusions concerning whether the fentanyl was possessed for the purpose of trafficking regardless of the position taken by the Crown, in my view, if he was not prepared to accept the Crown's concession, he was obliged to advise counsel of this and give the defence an opportunity to address the point. A failure to do so may amount to a reversible error: [R. v. Whincup, 2011 BCCA 520, 314 B.C.A.C. 75, at paras. 9-11; R. v. Huon, 2010 BCCA 143, at para. 6; R. v. Poole, 2014 BCSC 102, 63 M.V.R. (6th) 80, at para. 10].
To state the test in slightly different terms, trial fairness requires that a full and fair opportunity be given to both parties to address or make submissions on a point of fact or law that may be troubling the court: [R. v. Al-Fartossy, 2007 ABCA 427, 425 A.R. 336, at para. 24; R. v. Grewal, 2018 ONSC 5325, 40 M.V.R. (7th) 253 (S.C.), at paras. 60, 68; R. v. Fraillon (1990), 1990 CanLII 2828 (QC CA), 62 C.C.C. (3d) 474 (Que. C.A.), at p. 476]. This is especially the case where the court rejects a concession made by a party, and the opposing party does not address it believing that it is not in issue. [Emphasis added.] [49] In this case, given that guilt for murder hinged on the rejection of a critical Crown concession, the trial judge should have alerted both parties to this possibility. The Crown should have been invited to make submissions. There may have been reasons for the concession that were not apparent to the trial judge. As noted above, when giving defence counsel the opportunity to make further submissions on s. 21(1)(a) of the Criminal Code, the trial judge said: “The accused did not call evidence so the Crown will not be asked for submissions in reply.” I can discern no legal basis for this restriction. Had it been able to make submissions, the Crown may have been able to persuade the trial judge not to reject its concession. The Crown’s participation may have brought greater clarity to the trial judge’s exchanges with defence counsel. But this did not happen.
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