PROCEDURE - Trial judge’s duties - Charge or directions - Inferences of guilt

Appeal by the accused, Kennedy and Wolfe, from convictions for offences related to the robbery of a pharmacy. Two masked men entered a pharmacy. The security video showed the perpetrators’ manner of dress. One individual carried a black duffel bag and the other carried what looked like a firearm. One man jumped over the counter and searched the drawers. The other hit the pharmacist. Within one minute, the perpetrators left the pharmacy with drugs and cash. An eyewitness described the possible getaway car. Prior to the robbery, the appellants were under police surveillance. On the day of the robbery, the appellants were seen affixing a licence plate to the same make of vehicle seen by the eyewitness, and were seen wearing clothing similar to that worn by the perpetrators in the security video. A search warrant resulted in seizure of a similar duffel bag to that seen in the security video. A ski mask was linked to Wolfe. A glove found in the vehicle was linked to Kennedy. Kennedy wore a sweatshirt with the same wording as the perpetrator in the video. A jury found the appellants guilty of robbery, masking faces with intent, assault with an imitation firearm, and use of an imitation firearm to commit an indictable offence. Kennedy was also convicted of resisting police. The accused appealed.

HELD: Appeal allowed save for Kennedy’s conviction for resisting police. The trial judge erred in instructing the jury with respect to party liability. The charge did not contain an instruction that to find either appellant guilty of the joint offences, the jury had to be satisfied that one was the gun-wielding intruder, or that he knew the other intruder had a weapon that would be used in the course of the robbery. On the evidence, only one of the intruders had a weapon, and it was not unequivocal who that was. Nowhere in the charge did the trial judge instruct the jury that to find the non-gun-wielding intruder guilty of the offences as charged, it must find that he knew the other intruder had the imitation firearm. The failure to instruct the jury on the knowledge element required setting aside the convictions in favour of a new trial. The evidence was sufficient to sustain Kennedy’s conviction for resistance, as his conduct in actively pulling away from police amounted to active resistance.