Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 2022-03-01 DOCKET: C67754 & C67755
Lauwers, Paciocco and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Darko Stojanovski Appellant
AND BETWEEN
Her Majesty the Queen Respondent
and
Daniel Stojanovski Appellant
Counsel: Jennifer K. Penman, for the appellants Hannah Freeman, for the respondent
Heard: December 8, 2021
On appeal from the convictions entered on May 30, 2018 and the sentences imposed on July 6, 2018 by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a jury, with reasons reported at 2018 ONSC 4243.
Introduction
1The appellants Darko Stojanovski (“Darko”) and Daniel Stojanovski (“Daniel”) each appeal their convictions for attempted murder. Each also seeks leave to appeal their 18-year sentences. For the reasons that follow, I would dismiss the conviction appeals, grant leave to appeal the sentences, but dismiss the sentence appeals.
The Evidence at Trial
2On May 10, 2016, Darko and his twin brother Daniel met Nassundu Williams (“Nassundu”) to purchase marijuana. Darko, Daniel and Nassundu had known each other for years.
3Darko and Nassundu began to argue about politics and the verbal altercation turned into a physical fight. Both men ended up on the ground in the parking lot. They were separated by others but continued to trade insults as Darko and Daniel walked back to their vehicle. There were at least seven people in the parking lot.
4Moments later, Nassundu was shot in the shoulder and then the back in the parking lot.
5Darko and Daniel were both charged with attempted murder and discharge of a firearm with the intent to endanger life.
6The central issue at trial was the identity of the shooter(s).
7The Crown’s theory was that both brothers shot Nassundu. The Crown’s alternative theory was that Darko aided his brother Daniel to shoot Nassundu. The appellants’ theory was that neither brother shot Nassundu and that someone else intervened to shoot him.
8Nassundu testified that Darko and Daniel got into their vehicle after the altercation and pulled out of the parking spot. The vehicle then stopped. Nassundu said that the passenger side of the vehicle was closest to him and that Darko occupied the passenger seat. Daniel, whom Nassundu identified as the driver, stood over the car, while Darko rolled down the window and pointed a gun from the passenger seat. Nassundu said he believed that both brothers shot at him, but he was not sure if they shot at him with two guns, or if Darko shot first and then passed the gun to Daniel, who continued to shoot at him. Nassundu said the firearm looked like a “9 mm or police gun”.
9Nassundu’s friend Junior Bailey (“Junior”) was also present at the scene. His testimony at the preliminary inquiry, which was entered into evidence at trial, was that after the group separated them, the “white guy, the chubby one” [Darko] lifted his shirt and showed Junior that he had a gun. Junior said “let’s not do this” and walked him to his car. The other “white guy” [Daniel] walked over and both got into the car. Junior said “the chubby one” [Darko] was in the passenger seat.
10Junior said they drove up “towards where [Nassundu] was” and they were still “yelling back and forth”. After the yelling, Junior said “I seen the white guy pull out the gun and start shooting at [Nassundu].” Junior said that the first shooter was the driver, whom he identified as Daniel. Then the other guy, Darko “stretch over the car and start shooting”. The car was a silver or grey two-door Cadillac. Junior said he then went over to Nassundu “to see if he got hit”. Nassundu was face down on the ground and had been shot.
11There was evidence at trial that within an hour of the shooting, the appellants went to their parents’ apartment building and exchanged the silver Cadillac they had been driving for a blue Mazda owned by their mother.
12After the appellants’ arrest, police found four restricted firearms, six empty magazines, two scopes and four red bullets that were not live, in the appellants’ apartment. Because the barrel and slides had been removed from the two firearms, a firearms expert from the Centre of Forensic Sciences could not test whether any particular shell casing came from those firearms.
13Darko testified that he was the driver. As he drove out of the parking lot with his brother Daniel in the passenger seat, he heard gunshots but continued driving. He denied firing any shots, or having any firearm. Daniel did not testify. The firearms expert from the Centre of Forensic Sciences confirmed that all four shell casings found at the scene were fired from the same gun and that the gun must have been a “.40 calibre”.
14Swabs were taken of the interior of the appellants’ vehicle but they were never tested for gunshot residue.
15A jury found each of the appellants guilty of attempted murder of Nassundu, and of discharging a firearm with intent to endanger Nassundu’s life. The sentencing judge stayed the discharge firearms convictions based on the principle from R. v. Kienapple, [1975] 1 S.C.R. 729. The sentencing judge held that this shooting in a populated public place, which jeopardized the lives of others and resulted in Nassundu being confined to a wheelchair with no use of his legs, justified a sentence of 18 years for each appellant.
The Issues
16The issues raised on this appeal are:
- Whether the jury instruction on party liability (aiding), in respect of Darko, was adequate;
- Whether the trial judge took reasonable steps to mitigate the prejudice caused to the appellants by the introduction, only in the Crown’s jury submissions of the alternative theory that Darko aided Daniel to commit the offence of attempted murder;
- Whether the trial judge should have instructed the jury that Detective Constable Ditlof's hearsay evidence obtained from Nassundu in the hospital the morning after the shooting, could not be relied on for the truth of its contents;
- Whether the trial judge erred in her instruction to the jury on Junior’s preliminary hearing evidence; and
- Whether the sentencing judge erred in her analysis of the aggravating factors or failed to consider the appellants’ rehabilitative prospects such that the sentences should be reduced.
Analysis and Conclusions
The First Issue: The Jury Instruction on Party Liability
17The appellants claim the trial judge’s instruction about aiding was deficient in that (1) it did not apply the evidence to the legal instruction on aiding, and (2) it did not connect the instruction on aiding to the essential elements of the offences. The appellants claim the trial judge therefore committed an error of law that adversely affected the deliberation process and verdict. Although the jury was only charged on party liability with respect to Darko, the appellant Daniel argues that this ground of appeal affects him as well because, had party liability been properly left with the jury for him, he could have been convicted of a lesser offence.
The Law Respecting Jury Instructions and Party Liability
18There are two means by which a party may be found liable for an offence: primary liability, which refers to the person who actually committed the offence, or secondary (or party) liability, which includes those who aid another to commit the offence. Both primary and secondary liability are set out in s. 21 of the Criminal Code. The accused can be convicted of the substantive offence either as the perpetrator or the aider: R. v. Cowan, 2021 SCC 45, at paras. 29-30; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 51, per LeBel J. (concurring); R. v. Thatcher, [1987] 1 S.C.R. 652, at p. 694.
19A jury must be instructed as to the factual issues to be resolved, the law to be applied, the parties’ positions and the relevant evidence: R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at para. 63. The essential elements of aiding and abetting should be linked to the essential elements of the offence at issue: R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 64, leave to appeal refused, [2014] S.C.C.A. No. 13; R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at para. 66. The distinction between liability as a perpetrator and liability as an aider must be clearly articulated: Josipovic, at para. 48.
20Where there are two accused, the trial judge must instruct the jury that in addressing the liability of each accused, the jury must consider the case against each accused separately by reference to the evidence admissible against each: Josipovic, at paras. 47, 52.
21On appeal, the standard of review of a jury charge is adequacy, not perfection: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The adequacy of a jury charge is assessed “not in isolation, but in the context of the trial as a whole”, including the closing submissions of counsel: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58. The functional question an appellate court must ask is whether the jury was “left with a sufficient understanding of the facts as they relate to the relevant issues”: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 14; see also Newton, at para. 13 and whether the jury would “adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”: R. v. Cooper, [1993] 1 S.C.R. 146, at p. 163; see also Newton, at para. 13.
The Trial Judge’s Jury Instruction
i. The Charges
22The trial judge told the jury that because Darko and Daniel were each charged with attempted murder and discharging a handgun with intent to endanger life, a separate verdict must be rendered for each accused on each charge.
ii. The Necessary Elements of Aiding Another to Commit an Offence
23The trial judge then outlined the definition of aiding, telling the jury that, “A person may be found guilty of an offence because he helped somebody else to commit it.”
24She explained the elements of aiding as follows:
An aider may help another person commit an offence by doing something. It is not enough that what the aider does has the effect of or resulted in helping the other person commit the offence. The aider must intend to help the other person commit the offence. Actual assistance is necessary. This is the conduct requirement.
It is not enough that the other person was simply there when the crime was committed by someone else. In other words, just being there does not make a person guilty as an aider. Sometimes, people are in the wrong place at the wrong time.
On the other hand, if a person knows that someone intends to commit an offence and goes to or is present at a place where the offence is committed, to help the other person commit the offence, then that person is an aider of the other’s offence and he is equally guilty of it.
Aiding relates to a specific offence. An aider must do something or give assistance for the purpose of helping the other person commit the offence. The state of mind requirement expressed by the term “purpose”, requires Crown counsel to prove both intent and knowledge.
For intent, Crown counsel must prove that Darko Stojanovski intended to help Daniel Stojanovski to commit the offences, although Crown counsel need not prove that Darko Stojanovski desired the successful commission of the offences.
For knowledge, Crown counsel must prove that Darko Stojanovski knew that Daniel Stojanovski intended to commit the offences, although Crown counsel need not prove that Darko Stojanovski knew precisely how Daniel Stojanovski would commit the offences. [Emphasis added.]
25Later in the charge, the trial judge advised the jury,
“I remind you that Daniel Stojanovski and Darko Stojanovski are each entitled to have his case decided on the basis of his own conduct and state of mind and from the evidence that may apply to him.”
iii. The Necessary Elements of Attempted Murder
26Then, the trial judge outlined the necessary elements of the offence of attempted murder. She also applied those elements to each of the two appellants, because the only real issues were whether either or both of the appellants shot Nassundu and if so, whether either or both intended to kill Nassundu:
For you to find Daniel Stojanovski and Darko Stojanovski guilty of attempted murder, Crown counsel must prove beyond a reasonable doubt:
- that they meant to kill Mr. Williams by wounding him with a firearm; and
- that they fired a gun to wound Mr. Williams.
In dealing with each accused separately, the first question is: Did Daniel Stojanovski mean to kill Mr. Williams? Did Darko Stojanovski mean to kill Mr. Williams?
This element has to do with their state of mind at the time they fired the gun.
The crime of attempted murder requires proof of a particular or specific state of mind. Crown counsel must satisfy you beyond a reasonable doubt that when they fired the gun, they meant to kill Mr. Williams.
To determine whether Daniel Stojanovski and Darko Stojanovski meant to kill Mr. Williams, consider all the evidence, including what they did or did not do; how they did or did not do it; and what they said or did not say. Consider what they said and did before, at the time and after they fired the handgun. All these things and the circumstances in which they occurred may shed some light on their state of mind at the time.
You may conclude that as a matter of common sense that a person usually knows what the predictable consequences of his actions are and means to bring them about. You may, but do not have to reach that conclusion. You must not do so if, on the evidence as a whole, you have a reasonable doubt whether Daniel Stojanovski and Darko Stojanovski meant to kill Mr. Williams.
The second question is: Did Daniel Stojanovski fire the gun? Did Darko Stojanovski fire the gun? This element has to do with their conduct. They are alleged to have fired the gun to wound Mr. Williams.
If you are satisfied beyond a reasonable doubt that Daniel Stojanovski fired the gun to wound Mr. Williams, this conduct amounts to an attempt to kill Mr. Williams.
If you are satisfied beyond a reasonable doubt that Darko Stojanovski fired the gun to wound Mr. Williams, this conduct amounts to an attempt to kill Mr. Williams. [Emphasis added.]
27After explaining the elements of attempted murder, the trial judge explained to the jury that, if they were not satisfied that either appellant had the requisite state of mind for attempted murder, they could convict the appellants of the lesser included offence of aggravated assault:
After considering all of the evidence, if you are not satisfied beyond a reasonable doubt that Daniel Stojanovski meant to kill Mr. Williams, you must find him not guilty of attempted murder.
If you are not satisfied beyond a reasonable doubt that Daniel Stojanovski meant to kill Mr. Williams, but you are satisfied beyond a reasonable doubt that he intended to shoot Mr. Williams, then you must find him not guilty of attempted murder, but guilty of aggravated assault.
If you are satisfied beyond a reasonable doubt that Daniel Stojanovski meant to kill Mr. Williams, you must find him guilty of attempted murder on Count One.
After considering all of the evidence, if you are not satisfied beyond a reasonable doubt that Darko Stojanovski meant to kill Mr. Williams, you must find him not guilty of attempted murder.
If you are not satisfied beyond a reasonable doubt that Darko Stojanovski meant to kill Mr. Williams, but you are satisfied beyond a reasonable doubt that he intended to shoot Mr. Williams, then you must find him not guilty of attempted murder, but guilty of aggravated assault.
If you are satisfied beyond a reasonable doubt that Darko Stojanovski meant to kill Mr. Williams, you must find him guilty of attempted murder on Count One. [Emphasis added.]
iv. The Necessary Elements of Discharging a Firearm with Intent to Endanger Life
28The trial judge then went through the same exercise with respect to the other charge faced by the appellants: discharging a firearm with intent to endanger life. She reminded the jury that they must decide the case regarding each appellant separately. She explained the essential elements of the offence, namely, (1) the intentional discharge of a firearm at Nassundu, (2) with the intent to endanger his life. Again, the trial judge posed questions to the jury for each element of the offence, asking the question separately for each appellant. She correctly articulated the intent requirement for this offence, including that the discharge of the firearm must be intentional and that there must have been intent to endanger Mr. Williams’s life, that is, the intent to put him at risk of losing his life.
v. The Trial Judge’s Summary of the Evidence
29This was followed by the trial judge’s summary of the evidence.
30Among other things, she reminded the jury of the Crown’s evidence. She reminded them that Nassundu testified that he told police that both Darko and Daniel each fired two or three shots at him “even if they did not have two guns and they used one gun.” Nassundu testified that he told the police Darko shot him in the shoulder and then gave his brother the gun, and that Nassundu then began to run. He collapsed and was shot in the back. Nassundu testified that, “I know who shot me. I am not making an assumption.”
31The trial judge also reminded the jury that Officer Nicholas Ditlof spoke to Nassundu at the hospital the morning after the shooting. Nassundu was in a lot of pain, his speech was muffled, and he was gasping for air. Officer Ditlof made notes of their conversation as follows, although they were not verbatim.
Q. Who shot you? A. Darko, two twins, white, 20's, Croatian, look alike, one heavier than the other. Q. How did they leave? A. Drove a Cadillac CTS, silver, two-door, new.
32The trial judge reminded the jury of Junior’s evidence. Junior said he saw Nassundu with two white guys, they got into an argument and one of them grabbed Nassundu from the back and they fell on the ground. After he and others separated the two men, the chubbier white guy lifted up his shirt, revealing a gun. The two white men got into their vehicle and drove to where Nassundu was standing. The chubbier white guy and Nassundu continued to yell at each other. The chubbier guy on the passenger side pulled out a gun and started shooting at Nassundu. The other white guy stood up and stretched over the car and started shooting. Then they drove onto Bergamot in a silver or grey two-door Cadillac. He said there was a rapid succession of shots. He was shown a photo lineup but was unable to identify Darko or Daniel.
33The trial judge also reminded the jury of the evidence proffered by Darko. Darko testified that Nassundu had been his marijuana dealer for some time, and on the day in question, he and Nassundu started to argue and it became a physical fight. He said Nassundu lunged at him with a knife and, after being led away by someone else, Nassundu came at him with the knife and said he was going to kill him. Police found a knife near Nassundu when he was found. Darko said that when he got to his car, he looked for his brother and they both got into the car. He and Nassundu were still yelling and swearing at each other. Darko said he drove out of the parking lot and, as he turned onto Bergamot Avenue, he heard gunshots. He did not know where they were coming from and kept driving. (Daniel did not testify.)
vi. The Trial Judge’s Repetition of the Necessary Elements of Aiding
34After her reminder that it was the jury’s recollection of the evidence not hers that mattered, and her summary of the evidence, the trial judge repeated a second time, the elements of aiding in the commission of an offence:
[I]f a person knows that someone intends to commit an offence and goes to or is present at a place where the offence is committed to help the other person commit the offence, then that person is an aider of the other’s offence and he is equally guilty of it.
Aiding relates to a specific offence. An aider must do something or give assistance for the purpose of helping the other person commit the offence. The state of mind requirement expressed by the term “purpose” requires Crown counsel to prove both intent and knowledge.
For intent, Crown counsel must prove that Darko Stojanovski intended to help Daniel Stojanovski to commit the offences, although Crown counsel need not prove that Darko Stojanovski desired the successful commission of the offences.
For knowledge, the Crown must prove that Darko Stojanovski knew that Daniel Stojanovski intended to commit the offences, although Crown counsel need not prove that Darko Stojanovski knew precisely how Daniel Stojanovski would commit the offences. [Emphasis added]
Analysis and Conclusion Respecting the Adequacy of the Charge
35For the reasons that follow, I find the charge was adequate.
36First, contrary to the appellants’ suggestion, the trial judge did not treat Daniel and Darko as a single entity throughout her instructions. She carefully and repeatedly instructed the jury to treat each appellant separately, and she framed the questions facing the jury in terms of each appellant.
37The trial judge explained to them the requirements for aiding and that the aiding theory of liability related only to Darko. In this respect, this case is distinguishable from Josipovic, relied on by the appellants. The trial judge here did not treat the appellants as a single unit, and she clearly distinguished between liability as an aider and liability as a principal.
38Neither did the trial judge lump together the charges faced by the appellants. Before her initial instruction on aiding, the trial judge instructed the jurors that the appellants were charged with attempted murder and discharge of a firearm with the intent to endanger life. She then informed the jury, “Aiding relates to a specific offence.” She defined the conduct requirement for aiding as follows: “An aider must do something or give assistance for the purpose of helping the other person commit the offence.” She then explained the purpose requirement for aiding being that Darko must have intended to assist Daniel in the commission of “the offences” and must have known that Daniel intended to commit “the offences”. Although the trial judge referred to “the offences” when discussing the purpose requirement for aiding, she was clear that aiding relates to a specific offence. Further, she correctly instructed the jury on the distinctions between the two charges they each faced.
39Second, the jury would not have been confused as to how the legal instructions on aiding applied to the offence of attempted murder. The charge on aiding was not an afterthought, as submitted by the appellant.
40Each of the two accused was charged with the same two offences. After reminding the jurors that the charges were attempted murder and discharge of a firearm with the intent to endanger life, she correctly explained the three necessary elements of party liability being (i) doing something to aid another to commit the offence, (ii) knowing the other meant to commit the offence; and (iii) intending to help the other commit the offence: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-17.
41The trial judge made it clear that liability as an aider relates to a specific offence, and that in order to find Darko guilty of aiding Daniel to commit an offence, the jury must find that Darko knew Daniel intended to commit the offence, that he intended to help Daniel commit the offence, and that he did something to further the commission of the offence.
42The trial judge then correctly articulated the legal requirements to find Darko guilty of attempted murder, those being that, (1) he meant to kill Nassundu by wounding him with a firearm; and (2) he fired a gun to wound Nassundu. She also correctly articulated the intent required for the lesser included offence of aggravated assault and the essential elements of discharging a firearm with intent to endanger life.
43The appellants acknowledge that her instructions on the elements of the offences are error-free.
44Then, after providing her summary of the evidence presented at trial, the trial judge repeated the three required elements of party liability.
45In her second instruction on aiding, she again instructed the jurors that liability as an aider relates to a specific offence. She advised that in order to find Darko guilty of aiding, the jury must find that Darko knew Daniel intended to commit the offence, that he intended to help Daniel commit “the offences”, and that he did something to further the commission of “the offences”.
46I am reminded that on appeal, the standard of review is adequacy, not perfection and that “[a]n appellate court’s approach is ‘functional’. It assesses the adequacy of the charge in the light of its purpose”: Newton, at para. 13. In this case, the trial judge (a) correctly explained the law of aiding, (b) she instructed the jury that aiding applies to a specific offence, (c) there were only two offences in this case one of which was attempted murder and, (d) in explaining the required elements of attempted murder, she instructed the jury that attempted murder requires an intention to kill.
47Reading the charge as a whole, the jury would have understood that in considering Darko’s liability for aiding, they would have to relate aiding to one of the two specific offences and conclude that Darko knew that Daniel intended to commit that offence and intended to help him commit it. In the circumstances of this case, the main distinguishing feature between the offences charged was the intent element the Crown was required to prove. The same conduct, shooting Nassundu with a firearm, grounded each charge. It was in this context that the jury was asked to consider whether the Crown had proven beyond a reasonable doubt that Darko knew that Daniel intended to commit a specific offence, intended to help him commit it, and did something for the purpose of assisting him to commit that offence.
48As the respondent submitted, the jury would have understood that to convict Darko of attempted murder as an aider, they would need to find that he did something to aid Daniel to commit the attempted murder, he knew that Daniel intended to kill Nassundu, and he intended to help Daniel commit the attempted murder.
49While the trial judge could have provided a more detailed instruction, the jury was adequately equipped to understand the legal issues they were to consider in respect of aiding.
50Third, the jury would not have been confused about the application of the evidence to the legal tests as the evidence in this case was not complicated. There was no dispute that:
i. Darko and Nassundu knew one another; ii. Darko and Daniel went to the parking lot; iii. Darko got into a physical altercation with Nassundu; iv. Darko and Daniel went to their Cadillac and began to drive the vehicle; and moments later, v. Nassundu was shot multiple times at close range, causing him serious injury.
51The live issues on the attempted murder charge were (1) who shot Nassundu and (2) whether the shooter intended to kill Nassundu, and relatedly, whether the person aiding the shooter knew that the shooter intended to kill Nassundu and intended to assist the shooter. The live issues on the charge of discharging a firearm with intent to wound were similarly (1) the identity of the shooter and (2) whether the shooter intended to endanger the life of Nassundu, and relatedly, whether anyone aiding the shooter knew that the shooter intended to endanger Nassundu’s life and intended to assist the shooter.
52The exercise of applying the law that had been clearly articulated to the evidence was not a complex exercise for the jury to perform.
53Fourth, the Crown’s failure to address the purpose element of aiding at one point in closing submissions and the trial judge’s repetition of the Crown’s position on aiding, when viewed in the context of the charge as a whole, do not render the charge inadequate warranting a retrial.
54In closing submissions, the Crown articulated its alternate theory that Darko acted to aid Daniel to commit attempted murder but failed to address the knowledge and intent requirements that Darko knew Daniel intended to kill Nassundu and intended to assist him to commit the offence. The Crown said:
[E]ven if Darko Stojanovski didn’t fire his gun, because he didn’t want to hit his brother, didn’t want to hit people who were around Mr. Williams, someone other than his target, you should still find that he aided his brother by driving his brother, Daniel Stojanovski, up to within feet of Mr. Williams and then stopping the car so that his brother could shoot Mr. Williams. In that scenario, you should still find both guilty of attempted murder.
55In her summary of the Crown’s position, the trial judge also failed to address the purpose requirement for aiding. The trial judge summarized the Crown’s position on aiding as “even if Darko Stojanovski did not fire the gun because he did not want to hit his brother or anyone other than his target, he aided Daniel Stojanovski by driving him within feet of Mr. Williams and stopping his car so that his brother could shoot Mr. Williams.”
56However, this was not a legal instruction, this was a summary of the Crown’s position.
57The trial judge had twice given a clear legal instruction to the jury that in order to find an accused guilty of attempted murder, the perpetrator must have the intent to kill, and that for Darko to be convicted on the basis of aiding, he had to know that Daniel intended to commit the offence, he must have intended to help Daniel commit the offence, and he must have done something to help Daniel commit the offence.
58Fifth, counsel’s failure to object to the instruction may be taken into account on appellate review: Daley, at para. 58; R. v. Flores, 2011 ONCA 155, 269 C.C.C. (3d) 194, at paras. 95, 100. Neither of the appellants’ trial counsel voiced any objection about these issues to the trial judge.
59For these reasons, I find the charge, viewed as a whole:
i. Correctly outlined the legal requirements for the charge of attempted murder and aiding another to commit attempted murder; ii. Adequately linked the essential elements of aiding to the essential elements of the offences at issue; iii. Distinguished between liability as a perpetrator and as an aider; iv. Provided a sufficient understanding of the evidence that related to those issues; and v. Reminded the jury to consider the case against each appellant separately.
60I therefore find the trial judge connected her instruction on aiding to the essential elements of attempted murder and outlined the evidence to enable the jury to apply the evidence to her legal instruction about aiding in the commission of an offence. As such, this ground of appeal fails.
61In any event, this ground of appeal can have had no impact on the appellant Daniel, who was convicted by the jury as a principal. There is no basis to think that failing to leave the jury with aiding as a route to liability for Daniel had any impact on his conviction.
The Second Issue: Whether the Trial Judge Erred in Her Approach to the Crown’s Alternative Theory
62As noted above, the Crown’s primary theory of liability (based on the evidence of Nassundu and his friend Junior) was that both Daniel and Darko shot Nassundu. The Crown’s alternative theory was that Darko aided his brother Daniel to shoot Nassundu.
63The appellants submit that they were not given the opportunity to respond to the alternative theory. They claim that the trial judge should have “made reasonable inquiries with counsel and implemented any course of action that would have remedied the prejudice created by the inability of the defence to properly respond to the Crown’s new alternative theory.” The appellants claim the trial judge could have allowed the defence to reply orally or make additional submissions in writing on the alternative theory, which could have been incorporated into the jury charge.
The Law Regarding the Presentation of Alternative Theories
64There is nothing unfair in the Crown relying on different or alternate theories of liability that satisfy the specific allegation made in the charge alleged, as long as each alternative theory is rooted in the evidence: R. v. Kelly, 2017 ONCA 920, 138 O.R. (3d) 241, at para. 31. However, this general rule is circumscribed by the overriding need to ensure trial fairness and, specifically, the accused's right to make full answer and defence: Kelly, at para. 31; R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.), at para. 134; R. v. R.H., 2022 ONCA 69, at paras. 23-24.
65The Crown is entitled to rely on any basis of liability for the offence charged that is available on the evidence: Kelly, at para. 30; see also Pickton, at para. 19. In Kelly, at para. 34, Doherty J.A. held, “It is incumbent on the defence to demonstrate prejudice, justifying the limiting of the Crown's case to a particular theory.” If the defence intends to rely on the fact that the Crown's case is limited to the theory advanced by the Crown in shaping the defence, the defence must take steps to properly limit the Crown's case. This can be done through a request for formal particulars, or by seeking a clear and unqualified statement from the Crown that it is relying exclusively on the factual basis advanced in its theory of the case: Kelly, at para. 35.
66That said, there can be circumstances in which the defence, based on particulars provided by the Crown, specific representations made by the Crown, or the conduct of the trial, is justifiably led to believe that the accused's potential liability is limited to a specific theory and conducts the defence accordingly. In those circumstances, the defence may be successful in arguing that any departure from the specific basis of liability advanced, especially after the evidence is complete, would unfairly prejudice the accused's ability to make full answer and defence: Kelly, at para. 32; R. v. Pawluk, 2017 ONCA 863, 357 C.C.C. (3d) 86, at para. 30.
67In Ranger, for example, the defence had every reason to believe, up to the point of the jury charge, that the jury would be told that liability depended on the Crown proving that the accused was in the house when the murders occurred: at paras. 141-154, 162. However, the trial judge, in his instructions to the jury, put an additional theory of liability to the jury that did not require that the jury find that the accused was in the house: Ranger, at paras. 127, 155-162. This court concluded that the defence was materially prejudiced by the introduction of this new theory of liability in the trial judge's charge, without notice to counsel before closing submissions, and therefore allowed the appeal: Ranger, at para. 162.
Analysis of the Issue of the Crown Presentation of an Alternative Theory
68In this case, the appellants at trial did not ask for the opportunity to address the alternative Crown theory of aiding or to make additional submissions. Nor is there any suggestion of ineffective assistance of counsel.
69Moreover, both of the Crown’s theories were consistent with the evidence adduced at trial.
70The Crown’s primary theory was that both appellants had shot at Nassundu from their car. This theory was consistent with the evidence of Nassundu and Junior that both Daniel and Darko were shooting. Further, it was consistent with the fact that the appellants had removed and disposed of the barrels and slides from two firearms, one of which was registered to Daniel and the other to Darko.
71However, only four shell casings were found at the scene and the firearm expert from the Centre of Forensic Sciences opined that all four had been shot by the same firearm. Darko agreed that he and his brother were present in the parking lot, he and Nassundu had fought, and he and his brother left in his Cadillac. Darko testified that he drove the Cadillac out of the parking lot, that it was his vehicle, and that he had keys to the vehicle. He was the registered owner according to a Ministry of Transportation license plate search.
72As such, the Crown’s alternative theory arose from the evidence, including Darko’s own evidence. The Crown submitted that, in the alternative, Darko drove the vehicle, both brothers pulled their guns out, Daniel began firing but Darko did not have a clear shot to Nassundu and did not shoot because he did not want to hit his brother or other bystanders.
73The jury could accept Darko’s evidence that he drove the vehicle but reject his evidence that neither he nor his brother were involved in the shooting.
74Second, the appellants were aware of the alternative theory because the Crown gave notice of the alternative theory in the pre-charge conference, by flagging the need for an instruction on party liability. Crown counsel advised that: “It is a reasonable possibility that the jury can conclude that the two accused drove up, both pulled out their guns, but that only one ended up shooting, given that the four shell casings come from one gun. So, they need to be charged on the aiding portion of 21 – of Section 21, given that again it’s possible that Darko Stojanovski essentially delivered his brother to [Nassundu], his brother gets out and shoots [Nassundu]. So, I don’t expect that to be controversial, the party liability charge.”
75Darko’s counsel submitted: “[W]ith respect to my friend’s request on the charge for party liability, I – I’m in agreement that the… aiding provisions would be most applicable here and would be what would – what would apply. That is – certainly would be consistent with my friend’s theory. That’s why I don’t – I don’t take any issue with that.”
76Daniel’s counsel submitted, following Darko’s counsel’s submissions, “I have nothing to add to that.” This happened before any of the parties gave their closing submissions.
77When the trial judge sought clarification from the Crown about the alternate theory, following Crown submissions, the appellants’ counsel did not object. The following morning, midway through the jury charge, the Crown sought to clarify the theory on aiding, as Crown counsel was concerned his earlier answers were not clear. The Crown pointed out that there were “only two possibilities, in the Crown’s submission and theory” that “either they’re both shooting and the shell casings from one gun are not found, or only Daniel is shooting.”
78The trial judge confirmed the theory, stating “even if Darko did not fire his gun, he aided Daniel by driving him within feet of [Nassundu] and stopping his car so that his brother could shoot.” The Crown affirmed that this was correct. Darko’s counsel said that the Crown’s clarification on this issue had “alleviated my concerns” about the Crown’s articulation of the theory of aiding the previous day, and that it “accords with – with my memory as to how my friend presented his closing submission to the jury.” No further objection was raised.
79In sum, the theories of liability presented to the jury were those outlined in the pre-charge conference: that either Darko and Daniel both shot Nassundu, or that Daniel shot Nassundu and Darko aided him. This is not a case like Ranger, where defence counsel was materially prejudiced by the introduction of a new ground of liability in the jury charge, without prior notice.
80I therefore see no prejudice to the appellants’ right to make full answer and defence to the alternative theory that Darko aided Daniel.
The Third Issue: Use of Officer Ditlof’s Note That Nassundu Identified the Appellants as the Shooters
81In his trial testimony, Nassundu identified the appellants as the shooters. However, he was unable to confirm whether he had previously identified them as the shooters. Officer Ditlof was permitted to testify that on the day of the shooting, Nassundu told him that he was shot by “Darko, two twins”.
82The appellants claim the trial judge erred by not giving a limiting instruction that this statement by Nassundu to Officer Ditlof could not be relied on for the truth of its contents. The appellants submit that because Nassundu did not adopt his prior identification of the appellants, his statement to Officer Ditlof was not admissible as prior identification evidence. The appellants submit that a limiting instruction was important because the appellants alleged that Nassundu and Junior colluded and, absent such an instruction, Nassundu’s statement would serve to support the Crown’s assertion that Nassundu had identified the appellants before speaking with Junior.
The Law Regarding Use of a Prior Consistent Statement to Help Identify an Accused
83Evidence of out-of-court statements of identifications made by a witness constitute prior consistent statements made by that witness: R. v. Tat (1997), 35 O.R. (3d) 641 (C.A.), at p. 656.
84Generally, evidence of a prior consistent statement by a witness is excluded as irrelevant and self-serving: Tat, at p. 656. However, in Tat, at pp. 656-657, Doherty J.A. held that:
If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.
Where a witness identifies the accused at trial, evidence of prior identifications made and prior descriptions given by that witness do not have a hearsay purpose. In his influential article, Evidence of Past Identification, supra, Professor Libling explains the admissibility of the out-of-court statements where the witness makes an in-court identification in this way, at pp. 271-72:
There is no hearsay problem with this kind of evidence. It is not admitted to prove the truth of the earlier identification, but to add cogency to the identification performed in court…. [E]vidence of previous identification strengthens the value of the identification in court by showing that the witness identified the accused before the sharpness of his recollection was dimmed by time. Furthermore it is important, in assessing the weight of the identification in Court, to know whether the identifying witness was able to identify the accused before he was aware that the accused was the person under suspicion by the police.
Analysis of the Use of a Prior Consistent Statement to Help Identify an Accused
85In this case, Nassundu’s statement was admissible to enhance the credibility of Nassundu’s in-dock identification. Nassundu identified the appellants at trial and his earlier identification to Officer Ditlof can be used to test the reliability of the identification of the appellants as the shooters at trial.
86Although Nassundu did not recall making the statement to police when he testified at trial, he did testify that each time he spoke with the police, he was telling the truth, and the appellants’ counsel had the opportunity to cross-examine him about the basis for his identification, how and why he believed the appellants shot him, and whether he was influenced by others or making assumptions based on information from others. Moreover, Officer Ditlof testified and could be cross-examined about the circumstances in which the statement was made, the accuracy of his notes and the circumstances in which he found Nassundu when he gave the statement including the fact that he was in considerable pain.
87This evidence was also relevant given the appellants’ assertion that Nassundu and Junior had colluded to identify the appellants as the shooters. (I note that although the appellants contended that Nassundu and Junior colluded, this is belied by the fact that Junior was unable to identify either of the appellants from the photo lineup.)
88Moreover, trial counsel made no objection to this reference in the jury charge.
89As such, I find this evidence of identification was properly left to the jury for consideration.
The Fourth Issue: The Trial Judge’s Instruction About How Junior’s Evidence Could be Used
90The appellants submit that the trial judge erred in her instructions to the jury regarding Junior’s evidence. The appellants claim the jury ought to have been cautioned about relying on evidence that might have been the result of collusion. Moreover, the appellants claim the trial judge should have given the jury an instruction regarding how Junior’s failure to testify as a witness at trial affected his credibility, particularly given the importance of his evidence. When summarizing Officer Ellis’ evidence, the trial judge did not summarize the evidence about his attempts at service.
91The adequacy of a jury charge is assessed “in the context of the trial as a whole”, including the closing submissions of counsel: Daley, at para. 58.
92The trial judge is not required to review all the evidence upon which the defence relies: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 125, leave to appeal refused, [2010] S.C.C.A. No. 460 & [2011] S.C.C.A. No. 119. The trial judge’s role is to “decant and simplify”: Jacquard, at para. 13; Largie, at para. 125. This court held in Largie, at para. 125, “It can nearly always be said that a trial judge could have reviewed the evidence in greater detail. But that is not the test. The standard is adequacy, not perfection.”
93In this case, the trial judge did advert to the fact that Junior evaded service and the possibility that he colluded with Nassundu when she summarized the parties’ positions.
94The trial judge summarized the Crown position that Junior evaded service because he did not want to have anything to do with the criminal justice system, and the defence position that Junior colluded with Nassundu and evaded service because he realized he made the wrong assumption about who shot Nassundu. The trial judge also noted Junior’s criminal record.
95The Crown and both appellants’ counsel had reviewed the possibility of collusion and Junior’s evasion of service in their closing submissions. The Crown submitted that Junior evaded service because he did not want to participate in the justice system and that collusion was inconsistent with the evidence. The appellants’ counsel submitted that Junior colluded with Nassundu to identify the appellants as the shooters and that Junior evaded service because he did not want to get caught in his lies.
96Darko’s counsel also noted Junior’s criminal record, Officer Ellis’ multiple efforts to serve Junior, and the frailties of Junior’s evidence given that he did not testify at trial. Therefore, by the conclusion of the charge, the jury would have been aware of the possibility of collusion, Junior’s criminal record, and Junior’s evasion of service.
97Further, the appellants sought and obtained a mid-trial instruction, pursuant to R. v. Li, 2012 ONCA 291, 110 O.R. (3d) 321, at paras. 67-68, to explain that there might be tactical reasons why the defence might not attack the credibility of a witness at a preliminary inquiry, and therefore that the cross-examination at a preliminary inquiry might not have been as extensive as it would have been at trial.
98The trial judge cautioned the jurors before they heard Junior’s preliminary inquiry evidence, to “remember that you have not had the benefit of observing [Junior] testify. Consider, as well, where there is any real dispute about what [Junior] said in his evidence. Issues at a preliminary hearing are different than at trial, including the issue of credibility. Credibility is only determined by you, the jury. There are tactical reasons why defence counsel may not have conducted a full cross-examination of [Junior] at the preliminary hearing.” She repeated this instruction in the final charge.
99During the pre-charge conference, Darko’s counsel asked the trial judge to repeat her mid-trial instructions on Junior’s evidence in the final charge, which the trial judge indicated she would do. The appellants’ counsel did not seek further instruction or clarification on the issue, nor did the appellants’ counsel object to the instruction on Junior’s evidence in the final charge.
100It is expected that trial counsel will assist the trial judge on the content of jury instructions and identify any concerns they have with the jury charge: Daley, at para. 58; Largie, at para. 113. Failure to assist may be indicative of the seriousness of what is later said to be an error on appeal: Daley, at para. 58; Largie, at para. 113. The absence of any request for further instructions, in the pre-charge conference or as an objection to the charge “says something about… the overall accuracy of the jury instructions”: Jacquard, at para. 38. Again, there is no allegation of ineffective assistance of counsel.
101For these reasons, the trial judge did not err in her instructions in respect of Junior’s evidence, and this ground of appeal must fail.
The Fifth Issue: The Appropriateness of the Sentences
102The sentencing judge imposed an 18-year sentence on each of the two appellants.
103The appellants submit that the sentencing judge (1) erred in her analysis of the aggravating factors and (2) failed to address the rehabilitative potential of both appellants. The appellants claim that these constituted errors in principle that had an adverse effect on the sentences imposed.
104Sentencing judges are owed considerable deference in imposing sentences: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 48. An appellate court is only entitled to intervene where the sentence is demonstrably unfit, or where a sentencing judge erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor and this error had an impact on the sentence: Lacasse, at paras. 41-44, 48.
105The sentencing judge considered the following aggravating factors in respect of each of the two appellants:
i. Daniel and Darko were driving and walking in Toronto with loaded handguns and with obvious contempt for the lives and safety of others; ii. They fired their guns in a residential neighbourhood filled with families and children; iii. Before opening fire, they yelled at others to get out of the way; iv. There was a real possibility others would be hit and seriously wounded or killed; v. Their actions shattered the life of Mr. Williams; and vi. Daniel has a criminal record, albeit dated, for assault causing bodily harm.
106The appellants claim the sentencing judge misstated Daniel’s criminal record, stating that he had a dated record for assault causing bodily harm when in fact his conviction was for criminal negligence causing bodily harm. In so doing, the appellants submit that she overstated the appellants’ moral blameworthiness.
107I agree that the sentencing judge misstated the particulars of Daniel’s relatively minor criminal record, but this error did not have an impact on the sentence. The sentencing judge accorded little or no weight to this factor; she found that the fact Darko was a first offender was a mitigating factor, but then noted that, “given the gravity of the offence, the absence of a criminal record [for Darko] does not play a major role in his sentence.”
108Second, the appellants claim the sentencing judge considered the same aggravating factor twice when she stated that, “They fired their guns in a residential neighbourhood filled with families and children” and “There was a real possibility for others to be hit and seriously wounded or killed”. The appellants submit that these two factors are duplicate entries, and the sentencing judge thus erred by overemphasizing this factor.
109I disagree. The second factor considered that this daylight shooting in a residential neighbourhood violated community members’ sense of safety in the neighbourhood. The fourth factor, by contrast, considered that the other individuals present at the time of this shooting were put at risk of serious harm. As such, the factors are complementary, not duplicative. Both factors were relevant to sentencing.
110Third, the appellants claim the sentencing judge erred by considering a factor that was not properly an aggravating factor. The sentencing judge considered the fact that “Before opening fire, they yelled at others to get out of the way” as an aggravating factor. The appellants submit that this fact, when juxtaposed against the real possibility that others could be hit, reflected their desire to mitigate the risk of harm to the bystanders.
111I disagree. In listing this as an aggravating factor, the sentencing judge appreciated that the appellants chose to take the risk of firing in the direction of a group of bystanders. Thus, the appellants subjectively recognized the risk and took the risk nonetheless. This factor complemented the fact that there was an obvious possibility of inflicting harm, which recognized that the risk was objectively real. Therefore, the factor that the appellants yelled at others to get out of the way was appropriately considered an aggravating factor.
112The appellants also submit that the sentencing judge failed to appreciate Darko and Daniel’s rehabilitative potential, which she is obliged to do: R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at paras. 22, 25, 27 & 60.
113However, unlike the case in Disher, the sentencing judge did consider the appellants’ rehabilitative prospects. The sentencing judge listed the programs each of the appellants completed while incarcerated. She noted that Darko obtained his high school diploma and started a course in business management. He completed anger management and employment programs, and Bible courses. He was promoted to head server and cleaned the range. Darko’s long-term goal is to operate a delivery truck company with Daniel. Similarly, Daniel completed high school credits, and participated in workshops and Bible courses. He was also a server and cleaned the range.
114She noted that the appellants had taken “positive rehabilitative steps”, and she considered their “rehabilitative efforts”. However, she concluded that the “objectives of denunciation and deterrence are of primary importance in this case”, given that Daniel and Darko were convicted of firing guns in a populated public place, jeopardizing the lives of others, “out of rage and anger”, and with catastrophic consequences to the victim. This is consistent with this court’s comments in R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 78, that “our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms”, particularly in the Toronto area. See also R. v. Brown, 2009 ONCA 563, at para. 33.
115I see no error in principle in the sentencing judge’s consideration of the sentencing principles. Her conclusion is entitled to deference on appeal. I would therefore dismiss this ground of appeal.
Conclusion
116For the above reasons, as I noted at the outset, I would dismiss the conviction appeals, grant leave to appeal the sentences, but dismiss the sentence appeals.
“J.A. Thorburn J.A.”
“I agree. P. Lauwers J.A.”
Overview
117I agree with most of what my colleague, Thorburn J.A. says. I cannot agree, however, that the trial judge provided an adequate instruction on party liability – aiding – in respect of Darko Stojanovski (“Darko”). Specifically, the charge did not provide the jury with a functional understanding that in order to convict Darko of attempted murder by aiding, the jury had to find that Darko knew not only that Daniel Stojanovski (“Daniel”) intended to shoot Mr. Williams but that Daniel intended to kill Mr. Williams. I would therefore allow Darko’s appeal of his attempted murder conviction.
118The place to begin is in recognizing that a principal offender cannot be convicted of attempted murder unless he had a specific intent to kill. It is this intent, and nothing less, that furnishes the moral fault required for this offence: R. v. Ancio, [1984] 1 S.C.R. 225. Offenders may be convicted of murder based on constructive intention. But not of attempted murder. For attempted murder, the mens rea – the specific intention to kill – is “the principal ingredient of the crime”: Ancio, at p. 247.
119In my view, this same principle applies to the offence of attempted murder by aiding or abetting. Put otherwise, where the victim of an attempted murder survives, the principal ingredient that warrants the kind of conviction and sentence that Darko received in this case, is intentionally aiding the assailant, with the knowledge that the assailant intends to cause the victim’s death.
120When instructing the jury on the charge of attempted murder, this principal ingredient escaped mention. The trial judge never once directed the jury that they had to find that Darko knew that Daniel intended to kill Mr. Williams in order to convict him of attempted murder for having driven Daniel to the victim. In fact, when read as a whole, the charge erroneously suggests that Darko could be convicted of attempted murder by aiding even if he only intended to assist Daniel to shoot Mr. Williams.
121My colleague effectively concludes that the jurors would have been able to glean the specific intent mens rea requirement for attempted murder by aiding, from what they were told about the elements of attempted murder that apply to the principal offender, and from the instructions they received relating to the mens rea requirement for aiding more generally. With respect, I cannot agree.
122As I will detail below, on both occasions when the trial judge addressed criminal liability for aiding, the comments that she made were general and entirely susceptible to being interpreted to mean that if Darko drove the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams, and if Daniel committed attempted murder, Darko would also be guilty of attempted murder.
123This, on its own, would have been enough to prevent me from concluding that the charge provided the jurors with a functional understanding of the principal ingredient in an attempted murder by aiding charge. What drives this outcome home, in my view, is that elsewhere in her charge the trial judge reinforced the misconception that if Darko drove the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams, and if Daniel committed attempted murder, Darko would also be guilty of attempted murder. Specifically, the trial judge recounted for the jury, without any qualification or correction, the Crown’s legally erroneous and misleading statement that Darko would be guilty of attempted murder if “he aided Daniel … by driving him within feet of Mr. Williams and stopping his car so that his brother could shoot Mr. Williams”.
Analysis
124In elaborating on my position, I will first consider the trial judge’s charge on the elements of the offence of attempted murder, then I will examine the general comments the trial judge made about the elements of aiding, and then I will look more closely at the broader circumstances that require consideration on this appeal, including the trial judge’s direction relating to the Crown’s late-breaking theory of liability.
The Charge on the Offence of Attempted Murder
125In her jury charge, the trial judge correctly described the elements of attempted murder that apply to a principal of that offence. Of importance to the instant appeal, she explained that to be guilty of attempted murder, the assailant must have meant to kill the victim. This, of course, tells us what the mens rea requirement is for the assailant, but it tells us nothing about the mens rea requirement for an aider who assists the assailant in committing the offence of attempted murder. As McIntyre J. made clear in Ancio, at p. 247, “criminal attempt is itself an offence separate and distinct from the crime alleged to be attempted.” It follows, therefore, that the mens rea requirement for criminal attempt is necessarily separate and distinct from the crime alleged to be attempted.
The Charge on Aiding
126What, then, of the trial judge’s comments relating to the law of aiding? She directed the jury twice on the law of aiding, in identical terms. The material comments she made are as follows:
An aider may help another person commit an offence by doing something. It is not enough that what the aider does has the effect of or resulted in helping the other person commit the offence. The aider must intend to help the other person commit the offence. Actual assistance is necessary. This is the conduct requirement.
It is not enough that the other person was simply there when the crime was committed by someone else. In other words, just being there does not make a person guilty as an aider. Sometimes, people are in the wrong place at the wrong time.
On the other hand, if a person knows that someone intends to commit an offence and goes to or is present at a place where the offence is committed, to help the other person commit the offence, then that person is an aider of the other’s offence and he is equally guilty of it.
Aiding relates to a specific offence. An aider must do something or give assistance for the purpose of helping the other person commit the offence. The state of mind requirement expressed by the term “purpose” requires Crown counsel to prove both intent and knowledge.
For intent, Crown counsel must prove that Darko Stojanovski intended to help Daniel Stojanovski to commit the offences, although Crown counsel need not prove that Darko Stojanovski desired the successful commission of the offences.
For knowledge, Crown counsel must prove that Darko Stojanovski knew that Daniel Stojanovski intended to commit the offences, although Crown counsel need not prove that Darko Stojanovski knew precisely how Daniel Stojanovski would commit the offences”. [Emphasis added.]
127I will make two observations about this instruction. First, the trial judge provided this direction without distinguishing between the charged offence of attempted murder by aiding and the charged offence of discharging a firearm with intent to endanger life by aiding, and without instructing the jury on how the evidence applied to the elements of each, or either, offence. As a result, her comments about the elements of aiding remained general throughout the instruction and provided no specification as to what exactly the Crown needed to prove to secure a conviction of attempted murder by aiding.
128The trial judge was required to give that specification. As this court instructed in R. v. Huard, 2013 ONCA 650 at para. 64, leave to appeal refused, [2014] S.C.C.A. No. 13, a trial judge should link the essential elements to the offence at issue when instructing the jury. Yet nowhere does the trial judge do so in this case. Most critically, the trial judge’s direction gave no indication to the jurors that in order to be guilty of attempted murder by aiding, Darko would have to know when he aided Daniel that Daniel intended not just to shoot Mr. Williams, but to kill him. In my view, this was a non-direction amounting to a misdirection.
129Second, the direction that was given speaks variously about “the offence”, “an offence” and Daniel’s “offences”. This general language, coupled with the failure by the trial judge to identify the specific charges she was referring to, created confusion about what Darko’s precise mental state must be in order to be convicted of attempted murder by aiding. Indeed, when the comments the trial judge made about aiding are read as a whole, there is a very real prospect that the jury may have understood that if Darko intended to help Daniel commit any offence, such as a shooting, he would be equally guilty of any offence that Daniel ultimately committed, namely attempted murder. This risk is particularly pronounced given that this is an entirely plausible understanding of what the trial judge said in the third paragraph quoted above, which I have emphasized, in which the jury is invited to convict the aider of “the other’s offence” if the aider knows that the principal offender intended to commit “an offence”.
130My colleague finds solace in the trial judge’s instruction that “aiding relates to a specific offence”. With respect, I cannot agree. In my view, this general statement does not provide meaningful instruction about what Darko’s state of mind must be in order to be guilty of attempted murder as an aider. The trial judge does not explain the specific offence to which aiding must relate nor did she identify what kind of relationship she is referring to, or the significance of that relationship.
131I appreciate that in determining whether a charge provides a functional understanding we can safely infer that juries will apply common sense in interpreting what the trial judge has said. It is important to remember, however, that specific intention is a mens rea concept, a technical legal device for ensuring appropriate restraint in the allocation of the moral blame that the criminal law requires. It is asking too much of common sense to expect that the jurors in this case could reinterpret what the trial judge said in order to understand that before they could find Darko guilty of attempted murder by aiding, they would have to find that Darko knew specifically that Daniel intended not only to shoot Mr. Williams, but to kill Mr. Williams. Indeed, it would not grate against common sense to erroneously believe that if Darko intended to help Daniel shoot Mr. Williams, and if Daniel committed the offence of attempted murder in doing so, then both Daniel and Darko would be guilty of that offence. As the following discussion will demonstrate, even despite legal training, the Crown at trial was certainly labouring under this misconception, and it appears likely that the trial judge was as well. Quite simply, I see no basis upon which it can safely be inferred that the jury acquired a functional understanding of the mens rea element of the offence of attempted murder by aiding from the trial judge’s generic and confusing charge on aiding, even bearing in mind that they would have understood the mens rea element of attempted murder that would apply to the principal offender.
The Remaining Relevant Circumstances
132As indicated above, any prospect, however remote, that the jury may have gained a functional understanding of the specific intent required for the offence of attempted murder by aiding was destroyed entirely by the trial judge recounting to the jury the Crown’s position relating to Darko’s party liability for attempted murder. My colleague reproduces, in para. 53 above, the Crown’s misleading and erroneous representation to the jury that it could convict Darko of attempted murder by aiding if Darko drove the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams. When recounting the Crown’s position, the trial judge said to the jury:
The position of the Crown is that even if Darko Stojanovski did not fire the gun because he did not want to hit his brother or anyone other than his target, he aided Daniel Stojanovski by driving within feet of Mr. Williams and stopping his car so that his brother could shoot Mr. Williams. Thus, Daniel Stojanovski is guilty of attempted murder and Darko Stojanovski is equally liable of attempted murder.
133That, of course, is a direct invitation to the jury to commit the very error that the trial judge’s charge on aiding left open; if Darko drove the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams, and if Daniel committed the offence of attempted murder in doing so, then both Daniel and Darko would be guilty of attempted murder.
134Unlike my colleague, I take no solace in the fact that the trial judge was simply quoting the Crown’s position when she provided this misleading and erroneous description of the law to the jury. I say so for two reasons. First, if a party misstates the law, a trial judge should not repeat that mistaken position in the jury charge unless it is for the purpose of correcting the error. Quite naturally, a jury would infer absent such correction that the position being repeated before them by the trial judge is a correct one, available for them to accept. I have no doubt that the jury would have taken what the trial judge said when recounting the Crown position as an instruction that this is an acceptable path to conviction notwithstanding that this position is wrong in law. In my view, it was a misdirection.
135Second, at no other point in her direction did the trial judge instruct the jury on the application of the evidence to the elements of the offence of attempted murder by aiding. The trial judge’s rehearsal for the jury of the Crown’s mistaken position was the only guidepost provided to the jury in the charge on how the law should be applied to the material evidence. I am convinced that this eradicated even the remote prospect that the jury might somehow have correctly patched together what the law requires from the general comments the trial judge made relating to aiding and what she said about the elements of attempted murder when committed by the principal offender.
136My colleague relies in her decision on the fact that Darko’s trial counsel failed to object to the charge. In the circumstances of this case, the failure to object tells us nothing about the legal correctness of the charge, or its sufficiency, other than that Darko’s trial counsel may have been as unclear on what the law required as the Crown was and the trial judge appears to have been. There can be no suggestion that Darko’s trial counsel made a tactical decision not to seek an instruction on the principal ingredient of the crime of attempted murder by aiding. There would be nothing to gain by foregoing the benefit of this legal rule, and everything to lose. Nor can there be any realistic suggestion that Darko’s trial counsel’s failure to object amounts to an acknowledgement that the charge was legally correct and sufficient, or that any error it contained was unimportant. The trial judge’s inadequate and erroneous charge did not relate to a secondary consideration. It went to the core of what the law requires for conviction of attempted murder by aiding. In my view, the failure of Darko’s trial counsel to object to the fundamental errors that I have identified can have no bearing on the outcome of this appeal. That failure to object does not in any way relieve the trial judge of the obligation to correctly charge the jury.
137In fairness to the trial judge, the Crown’s theory of liability that led to the insufficient and erroneous charge was a late-breaking development in the trial. At the outset of the case, the Crown’s only theory of liability was that both Darko and Daniel shot Mr. Williams. The prospect that Darko aided Daniel by driving the car to the victim to facilitate the shooting was not available because the evidence of the Crown witnesses, including Mr. Williams, was that Daniel was the driver, not Darko. It was only after Darko testified in his defence and admitted to being the driver that this alternative theory of liability became available.
138The issue of party liability was raised, but only briefly, during the pre-charge conference prior to the jury submissions. In its jury submission, the Crown asked the jury to consider party liability, but the Crown’s submissions in that regard were unclear, and the trial judge subsequently told the Crown so. She then began to read her charge to the jury.
139The next day, the Crown sought to clarify its position before the charge resumed, apologizing for the confusion. The Crown told the trial judge that its position was that either both men shot Mr. Williams or only Daniel did. Still unsatisfied, the trial judge attempted to gain a clear articulation of the Crown’s position by paraphrasing her understanding of what the Crown was saying:
The Court: And then even if – even if Darko did not fire his gun, he aided Daniel by driving him within feet of [Mr.] Williams and stopping his car so that his brother could shoot. Mr. Arnold: Correct. The Court: That’s Daniel’s guilty of attempted murder and Darko is equally liable … Mr. Arnold: Correct. The Court: … of attempted murder. Mr. Arnold: Correct.
140Of course, it does not follow as a matter of law that if Darko drove Daniel within feet of Mr. Williams and stopped so that Darko could shoot him, that both Daniel and Darko would be equally guilty of attempted murder. Darko would not be guilty of attempted murder unless he drove Daniel within feet of Mr. Williams and stopped with the knowledge that Daniel intended to kill Mr. Williams. Hence the judge’s paraphrase, which she was later to repeat for the jury, is a dangerous misconception of the law. It is the fact that the trial judge twice uttered this inaccurate legal statement without correction or qualification that drives me to the conclusion that the trial judge does not appear to have understood what the law requires.
141It is also noteworthy that no doubt because the Crown’s attempted murder by aiding theory of liability was a late-breaking development, the trial judge provided the jury with a decision tree for the elements of attempted murder that would apply to the shooter or shooters, but did not provide a decision tree that would apply to Darko’s potential liability for attempted murder by aiding. It is also probable that it was the late-breaking change in the Crown’s theory of liability that contributed to the failure by the trial judge to discharge her obligation to explain to the jury how the evidence or facts relate to the elements of attempted murder by aiding: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 14; R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13.
142To be clear, I agree with my colleague that the Crown was entitled to raise this alternative theory of liability, and that Darko was not unfairly prejudiced by this late-breaking development. However, in my view, this case is a cautionary tale of the perils of late-breaking changes in theory. Where this occurs, the party initiating the change, and the trial judge, must find a way to ensure that they are properly prepared so that the kind of problems that I have identified in this jury charge do not arise.
Conclusion
143I have borne in mind that an appellant is not entitled to a perfect charge, only a functional and legally correct one that leaves the jury with a sufficient understanding of the facts as they relate to the relevant issues: Jacquard, at para. 14; Newton, at para. 13. But this charge was neither functional nor legally correct. As indicated, the trial judge failed to link the essential elements of aiding to the charged offence. And at no point did she tell the jury that to find Darko guilty of attempted murder by aiding they would have to find that he had specific knowledge that Daniel intended not only to commit an offence by shooting Mr. Williams, but that Daniel intended to kill Mr. Williams. Instead, she provided only general comments about the nature of aiding, employing variable references to “an offence”, “the offences” and Daniel’s “offences”. And she included a passage in her description of the law of aiding that, in its generality, would incorrectly support Darko’s guilt as an aider of attempted murder if he simply intended to help Daniel shoot Mr. Williams. Moreover, because of the late-breaking change in the Crown’s theory of liability, a decision-tree was not made available to assist the jury in understanding the elements of attempted murder by aiding. This alone would have been enough for me to find error. But, in my view, the inclusion by the trial judge in her charge of the Crown’s erroneous theory of liability was a complete coup de gras to any reasonable finding that a jury would be able to patch together an understanding of the specific intent requirement of attempted murder by aiding.
144I am persuaded that the charge relating to the mens rea required for attempted murder by aiding was not only insufficient. By leaving it open to the jury to accept the erroneous Crown theory of liability, the charge constituted a material error of law.
145I would allow Darko’s appeal and order a new trial. I agree with my colleague that Daniel’s appeal cannot be allowed. This error affected Darko alone. I would therefore dismiss Daniel’s appeal.
Released: March 1, 2022 “P.L.” “David M. Paciocco J.A.”
