This week’s top three summaries: R v Massicotte, 2026 ONCA 5269: #Crown theory , R v Suksawat, 2026 ABKB 536: s.8 grounds for #phones, R v Adriatico, 2026 ONSC 4079: NCRMD #morally wrong

R v Massicotte, 2026 ONCA 526

[July 20, 2026] Court Must Evaluate Crown Legal Theory of the Offence Unless they Give Notice [Reasons by Trotter J.A. with Sossin and J. Copeland JJ.A. concurring]

AUTHOR’S NOTE: The adversarial justice system depends upon the parties identifying the factual and legal issues in dispute, with the judge serving as a neutral arbiter of those competing positions. A judge’s role is to decide the case presented by the parties, not to develop and decide it on the basis of an unannounced legal theory of their own. Fundamental fairness requires that each party know the case it has to meet and be afforded an opportunity to make submissions on the legal issues that will determine the outcome.

In this case, the Crown expressly conceded that one route to conviction was unavailable. Rather than accepting that concession or inviting further submissions, the trial judge rejected the Crown’s position and convicted the accused on a different legal theory that had not been advanced by either party. The parties received no notice that the judge was considering this alternative basis for liability and therefore had no opportunity to address it.

The Court of Appeal held that this procedure was fundamentally unfair. Although a trial judge is not bound by concessions of law made by counsel, a judge who proposes to reject such a concession and decide the case on a different legal basis must give the parties notice and an opportunity to be heard. That obligation is rooted in the principles of procedural fairness and the adversarial process itself.

Notice serves two essential purposes. It permits the Crown to defend or reconsider its legal concession and allows the defence to make submissions on the alternative theory of liability before it becomes the basis for a conviction. Without that opportunity, the accused is deprived of the right to fully answer the legal case that ultimately determines guilt.

The decision confirms that, while judges remain responsible for correctly stating and applying the law, they cannot resolve a case on an unargued legal theory without first inviting submissions from the parties. To do otherwise undermines the adversarial process and constitutes reversible error.

A. INTRODUCTION

[4] The appellant submits that his trial was unfair because he was found guilty based on a theory of liability for which he was not given sufficient notice. He also submits that the trial judge failed to apply the principles in R. v. W.(D.), [1991] 1 S.C.R. 742.

B. FACTUAL OVERVIEW

1. Mr. Wapoose’s Death

[7] Mr. Wapoose died from multiple blunt and sharp force injuries to his head and neck. According to the pathologist, the most likely primary cause of death was “exsanguination from a deep stab wound to the neck and throat”….

3. The Evidence at Trial

[10] The key evidence in the Crown’s case was the testimony of Mr. Zoccole and Ms. Tatjana Shawanamash-Ignace, the appellant’s former intimate partner.

a. Mr. Zoccole’s Testimony

[13] When they returned, Mr. Zoccole said the appellant hit Mr. Wapoose in the back of the head with the pole. The appellant and Z.M.L. started punching and kicking Mr. Wapoose before dragging him into a ditch. Mr. Zoccole was scared and just wanted to go home. It was dark outside and he could not see much from his position, which was about 30 metres away. There was also thick grass in the ditch that obscured his view. He claimed, however, that he could see Z.M.L. and the appellant beating Mr. Wapoose in the ditch. After the appellant and Z.M.L. emerged from the ditch, all three left. Mr. Zoccole took Mr. Wapoose’s bike with them, which he later ditched close to his home.

[14] Mr. Zoccole agreed that he was intoxicated at the time of the events and, combined with the passage of time, he had difficulty remembering some of what occurred that night. He acknowledged contradictions between his evidence at the appellant’s trial and his testimony at Z.M.L.’s trial. He said he was trying to fill in the gaps in his memory.

b. Ms. Shawanamash-Ignace’s Testimony

[15] Ms. Shawanamash-Ignace and the appellant were in a domestic relationship between September 2018 and January 2022. They have a child together. The relationship deteriorated and they split up. When she testified at the trial, she faced a charge of assaulting the appellant with a knife.

[16] Ms. Shawanamash-Ignace testified that the appellant made five statements to her about Mr. Wapoose’s death. He told her that he and his friends walked through the Park and “beat William while he was passed out”. At another time he told her that he hit Mr. Wapoose with a pole. He later mentioned the presence of a knife, but he did not recall “having one, using one or where it ended up”. In another conversation, the appellant remembered “hitting him and stabbing him”….

[18] The appellant did not testify and called no evidence in his defence. He relied on the statement he gave to the police on November 4, 2014, in which he denied being in the Park that night.

C. THE POSITIONS OF THE PARTIES AT TRIAL

1. The Position of the Crown

[19] The Crown’s position at trial was that the appellant could not be found guilty of second degree murder unless the Crown proved that the appellant stabbed Mr. Wapoose in the neck. The Crown conceded that, standing alone, Mr. Zoccole’s evidence could not satisfy this burden; Ms. Shawanamash-Ignace’s testimony was the only evidence supporting the submission that the appellant inflicted the fatal stab wound. Her evidence was required to prove guilt for second degree murder. The Crown acknowledged the shortcomings of her evidence, but submitted that her obvious reluctance to testify against the appellant, as well as the progression of incriminating disclosures she detailed, lent a “ring of truth” to her evidence.

[20] In the alternative, the Crown submitted that the evidence of Mr. Zoccole could support a conviction for manslaughter under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46, based on the common unlawful purpose of the appellant and Z.M.L. assaulting Mr. Wapoose.

3. The Trial Judge Invites Further Submissions

[22] After hearing final submissions, the trial judge reserved his decision. A few months later, he requested that the parties appear before him again. He made the following request:

In closing submissions, the Crown relied on Section 21(2) of the Criminal Code common intention as a basis upon which the accused could be found, could be found guilty, but did not accept the evidence of [Ms. ShawanamashIgnace]. The Crown made only a passing reference to Section 21(1)(a) of the Criminal Code as a route to a finding of guilt. Section 21(1)(a) of the Criminal Code is commonly referred to as co-principal or joint principal liability. The closing submission of the defence counsel made no reference to Section 21(1)(a) of the Criminal Code. Prior to finalizing my judgment, I wish to provide the accused an opportunity should he choose to do so to make additional submissions on the application of Section 21(1)(a) of the Criminal Code for joint or coprincipal liability as it applies to the evidence heard in this trial. The accused did not call evidence so the Crown will not be asked for submissions in reply….

[23] Trial counsel accepted the trial judge’s invitation. The case was adjourned for further submissions.

[24] When the case returned to court roughly two months later, trial counsel made brief submissions about the application of ss. 21(1) and (2) of the Criminal Code. At the conclusion of these submissions, the trial judge asked for further assistance:

I specifically requested submissions in regard to s. 21(1)(a) and co-principal or joint principal liability. You’ve made only passing reference to that. Do you wish to make any further submissions on s. 21(1)(a) and coprincipal liability as it may apply in this case?

[25] Trial counsel made general submissions on the application of co-principal liability and referred the trial judge to some of the relevant authorities, including the Supreme Court of Canada decision in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198. He ended his submissions by saying that, if the trial judge accepted the evidence of Mr. Zoccole, he could find that the appellant “was a co-principal to an assault, a robbery, perhaps even an aggravated assault, but my position is that you can’t go further in finding him as a co-principal with respect to the manslaughter.” He made no mention of the appellant being found guilty of murder. When counsel asked if he could provide any further assistance, the trial judge said, “No. That’s fine”.[Emphasis by PJM]

D. THE TRIAL JUDGE’S REASONS

[30] The trial judge concluded that the proper route to liability was through the application of s. 21(1)(a) of the Criminal Code, based on co-principal liability….

[31] In addressing the mens rea for second degree murder as a co-principal under s. 21(1)(a), the trial judge relied on R. v. Abdulle, 2020 ONCA 106, 149 O.R. (3d) 301, leave to appeal refused, [2020] S.C.C.A. No. 156. In that case, four young people kicked and beat an older man, who was ultimately stabbed to death. It was unclear who inflicted the stab wounds. Three of the four accused were found guilty of second degree murder.

[32] This court dismissed the appeals from conviction in Abdulle. The court held that co-principal liability may be established even if an accused person does not use a knife, or have knowledge that someone else would or did use a knife, as long as the trier of fact is satisfied that the accused participated in the concerted attack with one of the two intentions for murder in s. 229(a) of the Criminal Code: at para. 27. Applying these principles to the evidence in this case, the trial judge concluded:

In the circumstances of this case and based on my findings that the accused and Z.M.L. participated in the beating, kicking, and punching of an incapacitated and badly injured victim, and based on the nature of the injuries suffered by the victim, I am satisfied beyond a reasonable doubt that the accused subjectively intended to cause Mr. Wapoose bodily harm that he knew was likely to cause his death and that he was reckless whether death ensued or not. It is not necessary for me to find as a fact that the accused either used a knife or that the accused knew that his co-assailant was using a knife. [Emphasis added.] [Emphasis by PJM]

E. ANALYSIS

1. Introduction

[34] As I will elaborate below, defence counsel was not operating on an adequate understanding of the trial judge’s query as to liability. The trial judge did not specifically say that he was considering a conviction for murder based on coprincipal liability. The appellant’s potential liability for murder under s. 21(1)(a) never arose during the discussions of co-principal liability initiated by the trial judge. It was clear from the record that trial counsel thought that the discussion was about manslaughter.

[35] The trial judge also failed to advise counsel that he might reject the Crown’s concession that guilt for second degree murder could not be established on the basis of Mr. Zoccole’s evidence standing alone. The rejection of this concession was critical to the trial judge’s conclusion on co-principal liability for murder. [Emphasis by PJM]

[36] The confusion that resulted from these circumstances, whereby trial counsel did not have the opportunity to make focused submissions on why the appellant should not be found guilty of murder based on co-principal liability, combined with the rejection of a crucial Crown concession without notice, amounted to a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code. [Emphasis by PJM]

2. Failure to Give Sufficient Notice

[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), 41 O.R. (3d) 280 (C.A.), at pp. 287-88, aff’d [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), 67 O.R. (3d) 1 (C.A.), the trial judge instructed the jury on a route to conviction that the Crown did not advance, 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.”

[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.

[42] It is apparent from the record that trial counsel always thought he was being asked to respond to the Crown’s position on co-principal liability, which was restricted to manslaughter. This was first demonstrated at the time the trial judge requested further submissions. Trial counsel immediately said that he would order a transcript of the Crown’s final submissions.

[43] Moreover, when counsel returned to make further submissions, trial counsel commenced his submissions by saying:

So, Your Honour, to be clear, we’ve been asked to respond to the Crown’s position on co-party liability. …The Crown in their brief submissions about party liability indicated that it was open to this court to find Jonathan Massicotte guilty of manslaughter on a theory of co-party liability under s. 21(1)(b) or (c). I pause here to state that the Crown’s theory in this regard relates only to the lesser and included offence of manslaughter and not second degree murder. [Emphasis added.]

[44] From this passage, it is clear that defence counsel sought clarification, confirming that he was being asked to make submissions about co-principal liability for manslaughter. The trial judge did not correct trial counsel on this point. As noted in para. 24, above, when trial counsel concluded his initial submissions that day, the trial judge expressed some dissatisfaction and asked counsel to focus on co principal liability under s. 21(1)(a). But he made no mention of murder as opposed to manslaughter. The confusion continued. [Emphasis by PJM]

[45] Respectfully, the trial judge should have been more specific in what he was asking of counsel by clarifying that he was seeking counsel’s assistance on coprincipal liability for murder. It would also have been helpful had the trial judge asked counsel for submissions on the applicability of leading cases on the issue, such as the ones that he ultimately ended up relying upon in his reasons (e.g., Abdulle). However, I acknowledge that it is primarily the responsibility of counsel to provide trial judges with binding appellate authority. [Emphasis by PJM]

3. Rejection of the Crown’s Concession Without Notice

[46] The conviction for murder did not flow solely from the new theory of liability introduced by the trial judge. It went hand-in-hand with the trial judge’s rejection of the Crown’s concession that it could not establish liability for murder on the basis of Mr. Zoccole’s evidence standing alone. It may have been that the Crown’s concession was based on an imperfect understanding of co-principal liability as it related to murder. But this is unclear because the Crown was not invited to participate in this discussion.

[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), 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. [Emphasis by PJM]

[51] As counsel for the appellant submits, trial counsel may well have taken a different approach had he been aware of the trial judge’s specific concerns. He could have made submissions on the application of Abdulle and related cases to the facts of this case. He might have made submissions on whether the Crown proved either of the intents for murder in ss. 229(a)(i) or (ii) of the Criminal Code beyond a reasonable doubt. This may have involved more extensive submissions on the role of the appellant’s intoxication that evening. Indeed, little was said about intoxication during trial counsel’s submissions. This made sense because, given what trial counsel believed he faced at the time, intoxication would not have had any legal significance in the context of manslaughter.

[52] In short, the appellant was prejudiced by the manner in which his trial was conducted. He was not put on sufficient notice of how he might be found guilty of murder. His counsel was deprived of a meaningful opportunity to respond. In my view, this amounted to a miscarriage of justice.

[53]…Both counsel should have been put on clear notice of these related issues – the rejection of the concession and the new theory of liability. That they were not amounted to a miscarriage of justice.

F. DISPOSITION

[54] I would allow the appeal and order a new trial.

R v Suksawat, 2026 ABKB 536

[July 27, 2026] Charter s.8: Grounds to Search and Seize a Cell Phone [Maureen J. McGuire J.]

AUTHOR’S NOTE: A search of a cell phone incident to arrest must be supported by reasonable grounds to believe that the device contains evidence relating to the offence under investigation. The mere fact that a cell phone is found on a lawfully arrested person does not, by itself, justify its search. There must be a factual nexus between the phone and the suspected criminal activity.

Here, the accused was a passenger in a vehicle driven by another person in which drugs were discovered. The Crown relied primarily on the fact that the accused possessed a cell phone at the time of arrest to justify its search. That was insufficient. The accused’s connection to the alleged drug offence amounted to little more than presence in the vehicle where the drugs were located. Mere presence at the scene of a drug seizure does not establish reasonable grounds to believe that a passenger’s cell phone will contain evidence of drug trafficking or possession.

Before searching the phone, the police were required to identify objective facts connecting the accused to the suspected offence and, in turn, connecting the phone to evidence of that offence. Without that evidentiary foundation, the search amounted to an impermissible exploratory search based on speculation rather than reasonable grounds.

The decision confirms that the constitutional protections afforded to cell phones require a meaningful evidentiary link between the device and the offence under investigation. A person’s possession of a phone, combined only with their presence in a vehicle containing drugs, does not satisfy that standard.

[2] On December 4, 2021, a warrant issued authorizing forensic examination of sixteen cell phones seized during the arrests of five people and the execution of five search warrants on November 2, 2021. The applicant, Michael Suksawat, challenges the basis for the issuance of the search warrant as it relates to the forensic examination of two phones seized from him during his arrest. He accepts that the two phones were seized from him in a search incident to his arrest. He argues, however, that the Information to Obtain provided insufficient grounds to support the forensic examination of his two phones.

[3] The investigation leading up to the November 2 arrests and searches was an investigation of a drug trafficking network operated by Jason Suriyavong, David Nguyen, and Keegan Johnson-Thomas. The Information to Obtain (ITO) overview provides a good description of the basis for the police belief that those three people were engaging in the business of trafficking methamphetamine and fentanyl. Mr. Suksawat is barely mentioned in the Information to Obtain.

[4]….All that is said of him there is that he “was arrested on November 2nd 2021, following the execution of search warrants pursuant to section 11 of the Controlled Drugs and Substances Act.” It does not say there, or anywhere else in the ITO why Mr. Suksawat was arrested. Unlike the fourth person named in the list, who is described as “associated to SURIYAVONG and NGUYEN and part of their drug trafficking network”, there is nothing in the ITO that suggests that Mr. Suksawat has anything to do with drug trafficking. At paragraph 37(c) the ITO states that the November 2, 2021 search warrants were granted on the basis of belief that Suriyavong, Nguyen and Johnson-Thomas were committing the offences that are specified in this ITO. It does not say there is a belief that Mr. Suksawat was committing those offences.

[5] At paragraphs 15 and 16, the ITO says that on November 2, 2021, as a result of search warrant executions, Mr. Suksawat was arrested and released “pending further investigation and charges.” At paragraph 18, it says he was arrested “while in Red Deer, AB with SURIYAVONG as he exited the grey Honda Civic”. In the search of the Honda Civic, which was owned by Suriyavong, police found 87.7 grams of fentanyl and a small digital scale in a hidden location. When Mr. Suksawat was arrested, two phones were seized from him, as was $1265 in cash that was found inside a duffle bag containing his clothing and toiletries. [Emphasis by PJM]

[6]…In paragraph 37(g), the informant says, specifically in relation to the two phones seized from Suksawat, that he believes evidence of those offences will be found when searching the contents of those two phones. The informant provides no basis for that belief.

[7] The only other paragraphs that could provide any other grounds supporting a search of Mr. Suksawat’s phones are the generic paragraphs 39(c) and (d):

(c) Based on my experience, I am aware that cellular communication devices are used by drug traffickers to communicate with customers to arrange the sale of their product. The communication will typically include a time and location to meet, the type of drug, the quantity of drug, and the cost. I believe that the most logical means of arranging the transactions is via cell phone, either a phone call or a text message. I believe that the data contained on the devices will afford evidence of these, and other, drug transaction.

(d) The presence of the cellular devices at the above search locations and in possession of these individuals, where controlled substances were also located, supports my belief the devices are used in a drug trafficking capacity and communication records stored on these devices, among other data types, will afford evidence of the named offences. [Emphasis by PJM]

[8] These paragraphs do not assist in providing grounds for believing the two phones seized from Mr. Suksawat will afford evidence of the offences specified. There is nothing in the ITO that indicates that Mr. Suksawat is a drug trafficker or a drug purchaser. There is nothing to indicate how long Mr. Suksawat was in Mr. Suriyavong’s vehicle, or that there is any known connection between Mr. Suksawat and Mr. Suriyavong other than that they were in the same vehicle for an unspecified period of time before Mr. Suksawat was arrested for reasons unspecified and then released. The drugs found in the vehicle were in a hidden location. There is no suggestion that the drugs were visible to anyone sitting in the vehicle. [Emphasis by PJM]

[9] It is not necessary that it be shown that the person from whom the phones were seized had committed any offence. But it is necessary that the phones sought to be searched have some connection with the criminal activity being investigated. Nothing in the ITO connects these two cell phones with the criminal activity being investigated.

[10] As there were no articulated grounds for belief that Mr. Suksawat’s two cell phones contained any evidence of the offences specified, there was no basis upon which the warrant could have issued in relation to those two phones. And as such, the search of the two cell phones amounted to a violation of Mr. Suksawat’s Charter right to be secure from unreasonable search or seizure. [Emphasis by PJM]

[11]…As I have found that the cell phone data was obtained in a manner that infringed Mr. Suksawat’s s. 8 rights, the evidence should be excluded if the applicant shows that its admission would bring the administration of justice into disrepute.

[13] In my view, this is a serious Charter violation. The Information was sworn a month after the cell phones were seized incident to an arrest. Mr. Suksawat is said to have been released “pending further investigation and charges”, but there is no indication that there was any further relevant investigation during the month following the arrest.

[15] This is not a technical or inadvertent error. Nor is there any evidence of good faith. The seriousness of the Charter infringing conduct favours exclusion of the evidence.

[16] The Crown concedes that the impact on Charter-protected interests also favours exclusion of the evidence. The reasonable expectation of privacy in a personal cell phone is high.

[18] But there is an overarching concern to avoid the long-term negative impact on the administration of justice that would result if criminal courts routinely accept and use evidence gathered in violation of the rights enshrined in the Charter. As stated in R v Le, 2019 SCC 34: “an ‘adjudication on the merits,’ in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.”

[19] Other evidence presented on this application strongly supports the belief that the applicant is not a wrongfully accused person. But the ends do not justify the means in our system of justice. The constitution protects the rights of all, and condoning the breach using an ends-based justification can lead to deterioration of the repute of the administration of justice. For this reason, and in the balance of all three components of the Grant test, I find that the evidence obtained from the unlawful search of Mr. Suksawat’s two cell phones should be excluded from his trial. [Emphasis by PJM]