Lindsay E. Trevelyan

Two brothers were convicted of second degree murder in the shooting death of a gang member.

The Crown's theory was that the brothers acted pursuant to a joint venture to hunt down and kill the victim.

One brother testified he was the shooter and raised defences of self-defence and provocation; the other testified he had no involvement in the killing.

The trial judge's jury instructions improperly conflated the two accused into a single entity by repeatedly using the phrase "John and/or Mato" when describing elements of the offence and defences, failing to distinguish between liability as a perpetrator and liability as an aider or abettor, and assigning the shooter's defences to the non-shooter.

The Court of Appeal allowed the appeal and ordered a new trial, finding the cumulative errors created a significant risk that the jury would approach the liability of the brothers jointly rather than separately.

The appellant appealed his conviction for sexual assault of his then 17-year-old niece, arguing that the trial judge erred by failing to provide a proper curative instruction to the jury in response to Crown counsel's closing remarks.

Crown counsel had commented that the complainant was not asked about abrasions to her genitals or the presence of male DNA on her body.

The appellant argued this violated the rule prohibiting questions about other sexual activity.

The Court of Appeal found that the trial judge's instructions adequately addressed the issue by explaining the legal prohibition on such questions and reiterating the Crown's burden of proof.

The court also dismissed the appellant's request for leave to appeal his sentence, which was imposed pursuant to a joint submission.