



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Akhi, 2022 ONCA 264

DATE:
    20220329

DOCKET: C67096 & C68914

Simmons,
    Miller and Nordheimer JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Elias
    Akhi

Appellant

AND BETWEEN

Her
    Majesty the Queen

Respondent

and

Jezreel
    Moxam

Appellant

Chris Rudnicki and Theresa Donkor, for
    the appellant Elias Akhi

Mark C. Halfyard and Chloe Boubalos,
    for the appellant Jezreel Moxam

Michael Fawcett, for the respondent

Heard: March 24, 2022 by video conference

On appeal from the convictions entered
    by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a
    jury, on February 12, 2019.

REASONS FOR DECISION

[1]

Elias Akhi and Jezreel Moxam appeal from their
    convictions for robbery, assault with a weapon, and other offences arising out
    of a home invasion robbery that occurred on September 28, 2016. At the
    conclusion of the hearing, we allowed the appeal and ordered a new trial for
    reasons to follow. We now provide our reasons.

[2]

On September 28, 2016, a woman was abducted from
    her home at gunpoint. The woman lived in a home in London with her two
    daughters, her boyfriend, and her boyfriend's brother. Her boyfriend and his brother
    were drug dealers.

[3]

On the night in question, two men entered the womans
    home and tied her up along with the two brothers. These two men were later
    identified as Azizullah Hadi and the appellant, Moxam. The men demanded drugs,
    money, and valuables. One of the men pistol-whipped her boyfriend. When no
    drugs were found, they threatened to take the children. Ultimately, the woman was
    blindfolded and taken to a car driven by a third man. The three men drove her
    to an apartment building, in the apparent belief that drugs would be found
    there. They met another vehicle (the second vehicle) occupied by three other
    men. One of the men from the second vehicle, William Pieszchala, opened the
    door to the building. Hadi and the woman went to a unit on the second floor.
    When no one answered the door, they went back downstairs where Moxam gave the woman
    money for a phone call and told her not to remove her blindfold until after the
    men had left.

[4]

Following the incident, Pieszchala approached
    the police and provided a statement concerning his involvement in the incident.
    Among other things, Pieszchala alleged that Akhi was in the second vehicle and
    that he not only forced Pieszchala to participate in the offences at gunpoint
    but also gave directions to Hadi and Moxam concerning carrying out the offences
    over the phone. The police eventually charged five individuals with various
    offences. Two of those individuals subsequently had their charges withdrawn. After
    Hadi pleaded guilty, the trial proceeded only as against the appellants.

[5]

The appellants raised a number of grounds of
    appeal, some in common and some separately. We need only address one that is
    common to both appellants and that involves serious errors in the instructions
    that were given to the jury by the trial judge.

[6]

This case was complicated by two principal
    factors. One was that there were two accused. The other, and more significant,
    complicating factor was that the information initially contained 26 different
    counts. Some counts related to individual accused and other counts related to
    accused charged jointly. The fact that Hadi resolved his case led to there
    being a reduction in the number of counts, but it still required the jury to be
    instructed on 14 counts.

[7]

Further, the instructions given to the jury
    included not only instructions on liability as principals, but also
    instructions on liability as parties, either as aiders under s. 21(1)(b) or common
    intention under s. 21(2) of the
Criminal Code
, R.S.C. 1985, c. C-46. Unfortunately,
    in attempting to address all of these moving parts, the jury instructions
    became very confused.

[8]

By way of example, the trial judge adequately
    set out the requirements for common intention under s. 21(2) very early in her
    instructions. However, much later, when she came to the actual counts that the
    jury had to decide, she moved back and forth between common intention, aiding,
    and joint principals, all without adequately delineating between the three.
    Indeed, she generally failed to delineate which counts might properly attract
    liability for which accused on which basis. Further, in instructing on common
    intention, the trial judge failed to clearly set out which offences were ones
    that the accused had agreed to commit, and which offences were ones that the
    accused knew, or should have known, one of the other participants would
    probably commit.

[9]

Adding to the confusion in this regard is the
    fact that while the trial judge initially told the jury that the two appellants
    had to be treated separately, in dealing with the various counts where they
    were jointly charged, which were 11 of the 14 counts, she referred throughout
    to Akhi and/or Moxam. This conjunction failed to maintain the separateness
    that was required when the jury was considering the question of guilt
    respecting each appellant. Because Akhi was never in the house, the avenues of
    liability for him were often distinct from those available for Moxam who was. While
    it may somewhat lengthen the overall instructions, the best practice will
    generally be for a trial judge to deal with each accused separately, even if
    that results in a measure of repetition. In any event, each potential basis for
    liability should be clearly and separately laid out for each offence and each
    accused. One significant consequence of the confusion in this case was that, in
    some instances, the trial judge instructed on avenues of liability not sought
    by the Crown and which were not available on the evidence.

[10]

The respondent quite fairly acknowledges that
    the jury instructions were confusing. Indeed, the respondent accepts that the
    finding of guilt for Akhi based on common intention on three of the counts cannot
    be sustained. However, the respondent contends that the errors in the jury
    instructions do not go so far as to undermine the other convictions for Akhi,
    or any of the convictions for Moxam. On the latter point, the respondent says
    that the only issue at trial was whether the jury would excuse Moxams participation
    on account of duress.

[11]

We do not agree. We begin by noting that had the
    trial judge instructed the jury as is now suggested by the respondent, that is,
    that the only issue for Moxam was duress, the respondents position might carry
    the day. But the trial judge did not do that. Rather, she included Moxam with
    Akhi throughout her instructions on all of the joint counts, including on all
    of the party liability issues.

[12]

In our view, there is no safe way of separating
    out the confusion that was created by the erroneous jury instructions as
    between the various counts or as between the two appellants. If the jury was
    left in a state of confusion regarding what the Crown needed to establish for a
    conviction beyond a reasonable doubt, it cannot be said with any level of
    comfort that the confusion would only have permeated their consideration of
    some charges and not others.

[13]

We would add that this case demonstrates the
    risks associated with including multiple counts in an indictment that arise out
    of the same conduct. It would benefit the conduct of prosecutions
    generally if the Crown identified the key offences involved and prosecuted only
    those offences. As Moldaver J. said recently, in
R. v. R.V.
,

2021
    SCC 10, 455 D.L.R. (4th) 253, at para. 78:

It is incumbent upon the Crown as a
    participant in the justice system to make the trial process less burdensome,
    not more. The Crown fails in that regard when it proceeds with duplicative
    counts. Doing so not only increases the length of the trial; it also places a
    greater burden on trial judges and juries by increasing, as it does, the
    complexity of jury instructions [Citation omitted.]

See also
R. v. Rowe
, 2011
    ONCA 753, 281 C.C.C. (3d) 42, at para. 58.

[14]

In the end result, the jury instructions did not
    properly equip the jury with the tools necessary to decide this case fairly. The
    convictions cannot stand and must be set aside.

[15]

It is for these reasons that we allowed the
    appeal and ordered a new trial. The convictions are quashed and a new trial is
    ordered on the counts on which the appellants were found guilty.

Janet Simmons J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.


