Background
William Darryl Wapoose was beaten and fatally stabbed beside a roadway in Thunder Bay in September 2014. Jonathan Massicotte, who was 18 at the time, and a young person identified as Z.M.L. were charged with second-degree murder. After Massicotte’s first jury trial ended in a mistrial, a judge sitting alone convicted him of second-degree murder.
At trial, the Crown argued that Massicotte could be convicted of murder only if he personally inflicted the fatal neck wound. Its principal evidence on that issue came from Massicotte’s former partner, but the trial judge gave her testimony no weight. The judge nevertheless convicted Massicotte as a co-principal under s. 21(1)(a) of the Criminal Code, finding that he and Z.M.L. jointly attacked Wapoose and that Massicotte had the intent required for murder even if he did not use or know about the knife.
The judge had requested additional submissions on co-principal liability after closing arguments. Defence counsel understood the request as concerning manslaughter, however, and the judge did not expressly say he was considering murder on that basis. Nor did he alert the parties that he might reject the Crown’s concession that the remaining evidence could not establish murder.
The Court’s Holding
The Court of Appeal unanimously allowed Massicotte’s appeal and ordered a new trial. It held that the lack of adequate notice of the route to a murder conviction, combined with the unannounced rejection of the Crown’s critical concession, deprived the defence of a meaningful opportunity to respond and caused a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code.
A trial judge may decide a case on a theory of liability different from the Crown’s theory, but trial fairness requires clear notice and an opportunity for full answer and defence. Here, the record showed that defence counsel believed the supplemental submissions concerned co-principal liability for manslaughter. The trial judge did not correct that understanding or specifically request submissions about co-principal liability for murder.
The trial judge also should have told both parties that he was considering rejecting the Crown’s concession and invited submissions from each. With proper notice, the defence could have addressed the governing co-principal-liability cases, whether the Crown proved the intent for murder, and the possible relevance of Massicotte’s intoxication. Because the court resolved the appeal on trial fairness, it did not decide Massicotte’s separate argument concerning the burden of proof.
Key Takeaways
- A court may rely on a theory of criminal liability not advanced by the Crown only after giving the accused clear notice and a meaningful opportunity to respond.
- When a judge is considering rejecting a material Crown concession, trial fairness generally requires notice to both parties and an opportunity for submissions.
- An ambiguous invitation for supplemental submissions does not provide adequate notice where defence counsel reasonably understands that a lesser offence—not murder—is at issue.
Why It Matters
The decision reinforces that the fairness of the process—not merely whether an alternative theory might be legally available—governs late changes to the route to conviction. Courts must identify the contemplated offence and theory with enough precision to permit focused submissions and, where appropriate, consideration of reopening the evidence.
It also underscores that judicial independence from Crown concessions carries a procedural obligation. Before rejecting a concession central to the parties’ conduct of a criminal trial, a judge must ordinarily put the issue squarely to both sides.