Law360 Canada (September 21, 2026, 11:14 AM EDT) --
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| John L. Hill |
The Ontario Court of Appeal has ordered a new trial for Jonathan Massicotte after finding that he was convicted of second-degree murder on a theory of liability about which his trial counsel had not received sufficient notice (
R. v. Massicotte, 2026 ONCA 526).
The decision, written by Justice Gary Trotter, with Justices Lorne Sossin and Jill M. Copeland concurring, emphasizes a basic requirement of trial fairness: an accused must know the case he has to meet and have a meaningful opportunity to respond to the legal theory on which a conviction may rest.
William Darryl Wapoose was beaten and stabbed to death beside a roadway in Thunder Bay, Ont., in September 2014. Massicotte was 18 at the time. His first trial ended in a hung jury. At his retrial before a judge alone, he was convicted of second-degree murder.
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The Crown’s principal theory was that Massicotte personally inflicted the fatal stab wound. Its key witnesses were Luke Zoccole, who was 16 at the time of the killing, and Massicotte’s former intimate partner, Tatjana Shawanamash-Ignace.
Zoccole testified that Massicotte struck Wapoose with a heavy pole and that Massicotte and another participant, Z.M.L., punched and kicked Wapoose before dragging him into a ditch. Zoccole did not see who stabbed Wapoose. His evidence was affected by his intoxication that night, the passage of time and his limited visibility during the attack.
Shawanamash-Ignace testified that Massicotte had told her that he had beaten Wapoose, hit him with a pole and stabbed him. However, the trial judge rejected her evidence entirely, finding it to carry no weight.
This posed a significant problem for the Crown. At trial, the Crown conceded that Zoccole’s evidence, standing alone, could not establish Massicotte’s guilt of second-degree murder because it did not show that Massicotte had inflicted the fatal stab wound. The Crown nevertheless argued that Zoccole’s evidence could support a finding of manslaughter under s. 21(2) of the
Criminal Code, based on a common unlawful purpose.
After the final submissions, however, the trial judge raised the possibility of relying on s. 21(1)(a), which provides for co-principal or joint-principal liability. He invited defence counsel to make further submissions. The Court of Appeal found that neither the judge’s initial request nor his subsequent questioning made it clear that he was contemplating a murder conviction on this basis.
Defence counsel understood the discussion to concern co-principal liability for manslaughter. Indeed, counsel expressly stated that his understanding was that the Crown’s position concerned manslaughter, not second-degree murder. The trial judge did not correct that understanding.
The distinction was critical. The trial judge ultimately rejected the Crown’s concession and found that Massicotte and Z.M.L. had jointly participated in the assault that caused Wapoose’s death. Relying on
R. v. Simon, 2010 ONCA 754,
R. v. Spackman, 2012 ONCA 905, and particularly
R. v. Abdulle, 2020 ONCA 106, he concluded that Massicotte could be guilty of second-degree murder even though it could not be determined who wielded the knife.
In
Abdulle, the Court of Appeal had held that co-principal liability for murder can exist even where an accused did not use a knife, or know that another participant would use one, provided the accused participated in the concerted attack with the requisite murderous intent.
The Court of Appeal in
Massicotte did not question that legal principle. Instead, it held that the principle had been applied in circumstances where Massicotte’s counsel had not been given a fair opportunity to address it.
The court relied on a line of authorities establishing that a trial judge may decide a case on a theory different from that advanced by the Crown but must first ensure that the accused has notice of the alternative theory. In
R. v. Groot, (1998), 41 O.R. (3d) 280 (C.A.), aff’d [1999] 3 S.C.R. 664, and
R. v. Pickton, 2010 SCC 32, the courts recognized the trial judge’s ability to consider an alternative route to liability while emphasizing the accused’s right to make full answer and defence.
In
R. v. Ranger, (2003), 67 O.R. (3d) 1 (C.A.), the Court of Appeal overturned a conviction where the trial judge instructed the jury on a theory of liability that the Crown had not advanced and of which the defence had not been given notice. Similarly, in
R. v. R.H., 2022 ONCA 69, the court described it as fundamentally unfair to convict an accused on a basis of which the accused was unaware and to which there had been no opportunity to respond. The same principle was recognized in
R. v. Levely, 2022 ONCA 632, and
R. v. Stojanovski, 2022 ONCA 172.
The problem was compounded because the trial judge also rejected the Crown’s important concession without giving either party notice that he was considering doing so. The Court of Appeal relied on
R. v. White, 2019 BCCA 461, which held that although a trial judge may reject a Crown concession, fairness requires that the parties be told and allowed to address the issue. That principle was supported by
R. v. Whincup, 2011 BCCA 520,
R. v. Huon, 2010 BCCA 143 and other authorities.
The court concluded that the combined effect of the two problems amounted to a miscarriage of justice under s. 686(1)(a)(iii) of the
Criminal Code. Had Massicotte’s counsel understood that murder based on co-principal liability was in issue, he might have made substantially different submissions. He might, for example, have addressed
Abdulle, the Crown’s concession, the statutory requirements for murder under s. 229(a)(i) and (ii), and the significance of Massicotte’s intoxication.
The court stressed that it was not deciding whether Massicotte was entitled to an acquittal or whether the evidence could ultimately support a murder conviction. Its concern was the fairness of the process by which the conviction had been reached.
As Justice Trotter put it, the Crown and the defence should both have been clearly notified that the judge was considering rejecting the Crown’s concession and relying on a new theory of liability. Because that did not happen, Massicotte was deprived of a meaningful opportunity to respond.
The appeal was therefore allowed and a new trial ordered.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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