Court of Appeal for Ontario

Date: 2022-07-18 Docket: C66280

Rouleau, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Don Johnson Appellant

Counsel: Dirk Derstine and Jennifer Penman, for the appellant Susan L. Reid, for the respondent

Heard: February 28, 2022 by video conference

On appeal from the conviction entered on February 16, 2018 by Justice Brian P. O’Marra of the Superior Court of Justice, sitting with a jury.

George J.A.:

Introduction

1The appellant was charged with two counts of first-degree murder. His first trial resulted in a mistrial. At his retrial, a jury found him guilty on both counts. He appeals his conviction raising these three grounds: 1) The application judge erred by dismissing the application to admit hearsay, which was the basis of his third-party suspect application; 2) the trial judge failed to give a sufficient corrective instruction to the jury regarding the Crown’s prejudicial closing argument; and 3) the trial judge erred by charging the jury on party liability, which had no factual foundation.

Evidence at Trial

2On February 20, 2012, two brothers – Justin Waterman (“Justin”) and Jerome Waterman (“Jerome”) (collectively “the brothers”) – were shot at 325 Bogert Avenue in Toronto (“325 Bogert”). Neither survived. Justin was shot more times than Jerome. Only the appellant was charged in their deaths.

3The appellant and the brothers were friends.

4325 Bogert is an apartment building and is where the appellant’s mother lived. The appellant stayed there from time to time. The brothers were shot multiple times, by a semi-automatic 9 mm pistol, in a basement stairwell. While the building had surveillance cameras, none captured the stairwell. Surveillance footage did feature prominently at trial. Several clips, from various locations at the complex, were tendered as evidence. I will return to these in a moment.

5Toronto Police Sergeant Gawain Jansz testified. He was qualified as an expert and permitted to give opinion evidence on urban street language, codified language, the “code of silence” and street weaponry. According to him, this code is the understanding that, within the criminal subculture, to “rat” or “snitch” on someone will attract varying degrees of retribution. Put another way, speaking to the police and giving them information about someone else committing an offence would be a serious violation of the code and, depending on the circumstances and who you “ratted” on, will attract various forms of revenge. For instance, to “rat” on a close friend would be more significant and likely attract a harsher form of punishment.

6In February 2012, after a time apart, the appellant renewed his friendship with the brothers. In the days leading up to February 13, 2012, they exchanged text messages. In one message – dated February 10 – the appellant wrote to Justin: “I hav a eat for a few stacks n pifff its one [n---] easy ting get ur bro…. This eat is between only us 3”. The appellant testified that in this text, he was proposing that he, Jerome and Justin rob a drug dealer. Sgt. Jansz testified that, based on his understanding of urban and coded language, this was the appellant proposing to the brothers that they rob a drug dealer, and that only the three of them would be involved.

7On February 13, 2012, building surveillance cameras captured the appellant and brothers at 325 Bogert. At trial, the Crown argued that it showed the appellant scouting the location. At one point, the appellant is seen, alone, walking toward the general area where the brothers were shot and killed a week later. The three exchanged text messages throughout the day. One video shows the appellant, again alone, extending his arms straight out as if pointing something, followed by him lowering his right arm by his side. This, the Crown argued, was the appellant holding a gun rehearsing what he planned on doing to the brothers. The Crown further argued that he planned a robbery with the brothers, and brought them along and showed them 325 Bogert on February 13, to gain their confidence, making it easier to do what he ultimately planned to do on February 20, which was kill them. It is not clear whether they in fact robbed someone on February 13. There is nothing in the surveillance videos that would suggest they had.

8Justin’s girlfriend, Samantha Cowe-Tomlinson (“Cowe-Tomlinson”), testified. She advised that in the days leading up to February 20 she was aware of his plan, along with the appellant, to rob someone. She said, up to that point, the plan kept falling through but, to her understanding, they still wanted to do it. She said that the plan was to rob a “white guy”. She said she received a call from Justin on February 19, 2012, at around 3:00 p.m. or 4:00 p.m. to tell her that he was going to go meet up with the appellant. She further testified that, during the late hours of February 19 – the night before the brothers were killed – she contacted the appellant to inquire about Justin’s whereabouts. The appellant told her via text that he had not seen Justin at all that day and did not know where he was.

9Late on February 19, the appellant texted his girlfriend, Elisha Jolly (“Jolly”), after Cowe-Tomlinson contacted him asking if he knew where Justin was. The appellant told Jolly not to tell anyone that he had been with Justin, if asked. He also told her to “erase [their] text msgs”.

10On February 20, the appellant sent text messages to someone named Joel Edwards (“Edwards”). In one text, he wrote: “These r_tz are hard to cach family”. Sgt. Jansz testified that this was a reference to Justin “ratting” or snitching on the appellant. Later, the appellant wrote Edwards again to tell him to “dele this convo”.

11During cross-examination of Sgt. Janz, the appellant’s counsel suggested that “r_tz” was in reference to “ratchetz”, a misogynistic word meaning “ghetto girls”, and that “hard to catch” meant “hard to control”. While Sgt. Jansz agreed that “ratchets” is a term sometimes used to describe women, he disagreed that it was codified language. He further testified that “hard to catch” is not codified language and that, in any event, it did not mean “hard to control”. The appellant testified that “r_tz” referred to “ratchets” and “hard to catch” meant “hard to put in place”, and that he was referring to Cowe-Tomlinson, who he described as being controlling in relation to Justin. He testified that “dele this convo” meant “scratch this conversation”.

12The appellant sent text messages to Jerome on the morning of February 20, including “Quik money ting…. Yo get ur bro”. Shortly after, he texted Jerome, “A yutes cumin to buy a ting he has da loot stik up ting basement”. The appellant testified that these texts referred to a robbery of a man named Doug, which they planned to carry out in the basement of 325 Bogert.

13Further clips from the surveillance footage capture the appellant and the brothers together on the afternoon of February 20. At 3:23 p.m., the appellant, brothers, and a fourth man who the appellant testified was Marcus Cumsille (“Cumsille”), were in the basement area of 325 Bogert. All four men walked down the previously mentioned hallway which leads to the hallway directly off the stairwell to the underground parking garage, which is where the brothers were shot. There were no security cameras in the stairwell. The surveillance footage does capture the appellant and the fourth man running back up the hallway from the direction where the brothers were shot, at 3:44 p.m.

14The last outgoing call from the appellant’s phone was at 2:03 a.m. on February 20. The last text messages from this phone were sent/received at 3:06 p.m. And the last instant message from his phone was sent at 3:13 p.m. (to Jolly, the appellant’s girlfriend). The appellant started using a different phone after the shooting and testified that he asked Cumsille to dispose of his old phone.

15The surveillance footage from February 20 shows the appellant wearing a blue Los Angeles Dodgers jacket. When the police searched the appellant’s residence, they did not locate this jacket. The Crown argued that the appellant had disposed of it.

Motive

16The Crown’s theory was that the appellant murdered Justin as retribution for implicating him in a previous crime. In other words, this was a revenge killing; punishment for violating the “code of silence”. This theory has the appellant killing Jerome in order to prevent him from avenging his brother’s death. The appellant testified at his trial, and denied this. He said that, on the date in question, he and the brothers were planning on robbing a drug dealer named “Doug”; that the brothers were to carry out the robbery; and that he and Cumsille were mere lookouts. On his account, there was no plan to kill anyone. This was a robbery gone awry, and “Doug” must have killed the brothers.

17To better understand the Crown’s theory, consider Justin’s supposed breach of the code. On January 2, 2010, the appellant and Justin were both charged with possessing a firearm. Each told the police that the gun belonged to the other. Justin went further and explained that the appellant was going to use it to rob a marijuana grow operation, which led the police to charge the appellant with conspiracy to commit robbery. The appellant pleaded guilty to the firearm offence. The conspiracy charge was eventually withdrawn. According to the Crown, revenge was not exacted until two years later as the appellant was in and out of jail during that time.

18The Crown argued that there was evidence the appellant engaged in inculpatory after-the-fact conduct by disposing of his cell phone and the Dodgers jacket, and by contemplating flying to Israel (where he holds citizenship), which he discussed with his father via text on February 22, 2012. In this text message to his father, he mentioned that he had the funds to pay for a flight to Israel and suggested that he might do so. There is no evidence that he in fact attempted to carry out that plan or otherwise flee the country.

19The appellant explained that he pleaded guilty to the firearm charge in 2010 because the evidence against him was strong, and that he did not think too much about the conspiracy allegation because he knew it was untrue. In any case, while he became aware of Justin’s statement to the police, he denied holding any ill will towards him.

20He further testified that his initial plan to rob the “white guy” fell through, which led Justin to suggest robbing his marijuana dealer Doug, under the pretext of selling him a gun. He said that, on February 19, he spent the night with Justin. The appellant testified that on February 20, Justin used the appellant’s burner phone to arrange the meeting with Doug. According to the appellant, Justin then contacted Jerome, told him of the plan, and asked him to attend and to bring a firearm. The appellant testified that he never met Doug, but that the new plan was for Justin and Jerome to meet Doug to rob him.

21The appellant said that he spoke with Cumsille on the phone at around 1:30 p.m., which is when he told him of the planned robbery. He suggested to Cumsille that he attend and join them. According to the appellant, Cumsille knew both brothers. The appellant denied the Crown’s suggestion that Cumsille came to help him murder them.

22Danuta Polujanska (“Polujanska”) also testified. She lived in the basement of 325 Bogert near where the shootings took place. Later in the day on February 20, she heard a loud noise that led her to open her front door and look into the hallway. She testified that she saw two men running towards her down the hallway and then turn and proceed down another hallway. She did not see their faces and could not describe them except to say they were wearing black. She did not recall seeing either of them wearing a Dodgers jacket.

Doug as a Third-Party Suspect

Patrisha Hogan

23Patrisha Hogan (“Hogan”) gave two statements to the police – one verbal and one video recorded – in which she said that a man named “Doug” confessed to murdering the brothers. However, when she testified at the preliminary inquiry, she claimed to have no memory of Doug’s confession to her nor of giving her police statements. At some point, the Doug she was referring to was identified as Doug Windebank (“Windebank”). Windebank provided a police statement in which he denied murdering the brothers. He denied confessing to it. He acknowledged knowing Jerome but said he had never met Justin. He denied ever being involved in drug dealing with either of them. He provided an alibi to the police, advising that at the time of the murders on February 20, 2012 he was at the movies with his wife. The police investigated the location of Windebank’s phone on February 20 and learned, according to cell tower records, that it was nowhere near 325 Bogert at the relevant time. Windebank is not seen in any of the surveillance footage from 325 Bogert.

24At the time she gave her statements, Hogan was in custody awaiting trial on outstanding charges. When she first spoke to the police, she was hopeful to strike a deal and secure her release on bail. She offered to “wear a wire” and to speak to “Doug” again.

25At the preliminary inquiry, Hogan explained her inability to recall her statement by pointing to her heavy drug use at the time. While she held out the possibility that she told the police the truth, she testified that she was confused about when the murders took place. She acknowledged having a criminal record, with entries for crimes of dishonesty, but testified that, for some, she was not guilty and had only pleaded guilty for convenience.

26The evolution of Hogan’s testimony prompted the appellant to, at his first trial, seek the admission of her police statement detailing Windebank’s confession. This was the basis for the appellant’s third-party suspect application. In order to adduce third-party suspect evidence, the appellant had to satisfy the application judge that there was an air of reality to the defence position, namely that there was a sufficient connection between the third party and the offence for which the appellant was charged. If Hogan’s statement to police was deemed admissible (either as a traditional exception to the hearsay rule, or under the principled approach), this would constitute a sufficient connection. However, if Hogan’s statement was deemed inadmissible Windebank could not be put to the jury as an alternate suspect.

Decision Below

27The application judge found that – in light of Hogan’s inability to recall the confession and her statement, and given Mr. Windebank’s denial – necessity was met for both their statements. However, the application judge found that Hogan’s statement was not sufficiently reliable to warrant admission, as the circumstances in which it came about did not provide sufficient confidence in its truth and accuracy, given her extensive criminal record, heavy drug use, discrepancies between her initial verbal statement to police and subsequent video recorded statement, and apparent motive to lie (i.e., to get bail). He found that Windebank’s alleged confession was not admissible as a declaration against penal interest. Further, he found that Windebank’s alleged confession was not sufficiently reliable to warrant admission under the principled exception, as the circumstances did not provide sufficient confidence in its truth and accuracy, given Windebank’s long criminal record, and that many of the details about the murders in his purported statement were known to the public at the time. The application judge also declined to use his discretion to relax the strict rules of evidence in favour of the defence, as the statements’ cumulative unreliability was an insurmountable bar to admissibility. The application judge did note that the appellant was free to call either Hogan or Windebank as a witness at trial.

28Having failed to establish the admissibility of this evidence, the appellant was not permitted to argue that Windebank may have been the killer. The decision rendered on this issue at the first trial applied at the retrial.

Issues

29This appeal gives rise to these three issues:

i) Did the application judge err by dismissing the request to admit hearsay, which was the basis of the appellant’s third-party suspect application? ii) Did the trial judge err by failing to give a sufficient corrective instruction to the jury in respect of the Crown’s closing address? iii) Did the trial judge err by charging the jury on party liability?

30I will address each in turn.

Discussion

Issue #1 – Did the application judge err by dismissing the appellant’s request to admit hearsay on the third-party suspect application?

31The appellant submits that the application judge erred by finding that Hogan and Windebank’s statements did not meet the requirements for threshold reliability. He argues that the application judge erred by placing too much weight on certain factors while failing to consider others, and that he placed too high a burden on the determination of threshold reliability. He further submits that the application judge erred by not relaxing the evidentiary rules for the admission of defence evidence.

32What the appellant sought to introduce was a double hearsay statement. It was a purported confession by Windebank to Hogan, as told by Hogan to a police officer.

33I see no merit to this argument. The application judge’s decision was correct, and his reasons explaining it, sufficient. He analyzed Hogan’s statement and Windebank’s statement separately. Regarding Hogan’s statement, she was in the nature of a “jailhouse informant”, which made anything she had to say inherently fraught with danger: see R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 129, per Binnie J. (concurring). Hogan was an entirely incredible and unreliable witness.

34In considering Hogan’s statement under the principled exception, the application judge concluded that necessity was met. On reliability, the application judge wrote this at paras. 33 and 36 of his reasons:

Here the accused must rely on the first basis for meeting the reliability requirement, and not the second. While Hogan’s statement was given under oath, it was at a time when no one had been arrested for these murders, and the police had had no opportunity to investigate the credibility of Hogan’s allegations. Quite clearly there has been no opportunity for the Crown to meaningfully question her about it, far less cross-examine her on it. It cannot possibly be said that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested. They cannot really be tested at all. As a result, in this case, the reliability requirement will be met if the circumstances in which the statement came about provide sufficient confidence in its truth and accuracy: see Khelawon, at para. 67. As Lamer C.J. put it in R. v. Smith, [1992] 2 S.C.R. 915, at p. 933:

If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of trustworthiness is established.

In this case, I can only conclude that the argument that this statement satisfies the reliability branch of the principled exception to the hearsay falls woefully short of the mark.

35The application judge then went on to list those factors which, in his words, “overwhelmingly” weighed in favour of a finding of unreliability, including Hogan’s motivation to secure her release from custody, her lengthy criminal record (including convictions for crimes of dishonesty), her “very serious” drug problem, the differences between her verbal and recorded statements, doubtful details from her statement, and the Crown’s inability to test the account given Hogan’s inability to recall making the statement, or hearing Windebank’s confession. Further, the application judge considered two factors in support of reliability: First, that the statement was under oath (albeit by a person who was unlikely to be troubled by an oath at that time), and second, that some of the details Hogan provided, allegedly from Windebank, were accurate (although the passage of time was such that Hogan might have heard this information from someone other than Windebank). However, the application judge concluded that, overall, Hogan’s statement was not reliable and not admissible under the principled exception.

36Regarding Windebank’s statement, the application judge considered whether it was admissible as a declaration against penal interest. The application judge found that the factors to be considered, from R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at para. 88, were not met. The application judge also considered whether Windebank’s statement was admissible under the principled exception, and found that it did not meet the reliability requirement, given Windebank’s criminal record, the circumstances of the alleged confession, and the fact that most of the details in the alleged confession were known to the public and those that were unknown, were not entirely accurate.

37The admissibility of hearsay evidence is a question of law, but the factual findings underpinning that determination are entitled to deference: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; R. v. Young, 2021 ONCA 535, 407 C.C.C. (3d) 265, at para. 30. An application judge is well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards: Youvarajah, at para. 31. Absent an error in principle, an application judge’s determination of threshold reliability is entitled to deference: Youvarajah, at para. 31. No deference is owed if the trial judge materially misapprehended evidence that is central to the ultimate assessment of the admissibility of the hearsay statement: Young, at para. 30. The application judge’s reasons are detailed; there is no misapprehension of evidence; and the correct legal tests were cited and applied. I see no reason to interfere.

38The application judge also addressed the request that he relax the strict rules of evidence in favour of the defence, but declined to do so in large part because of his earlier finding of unreliability. This is a discretionary call and to be afforded deference: R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at para. 43. I see no reason to interfere.

39I would therefore reject this ground of appeal.

Issue #2 – Did the trial judge err by failing to give a sufficient corrective instruction to the jury in respect of the Crown’s closing address?

40The appellant submits that the Crown’s closing address undercut his defence and led to an unfair trial. First, the Crown argued that Doug was a fabrication, which, the appellant says, was problematic because the Crown knew about the existence of Doug Windebank. Second, the appellant argues that the problem was compounded when the Crown suggested that he tailored his evidence to the disclosure, which was to turn his constitutional right to make full answer and defence as a “sword against him”. Third, the appellant argues that the Crown undermined the testimony of Polujanska by speculating as to why she did not observe either of the two males running down the corridor wearing the appellant’s distinctive Dodgers jacket. Lastly, the appellant argues that the Crown led a theory of motive to kill Jerome which was not put to the appellant, which runs afoul of the rule in Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.). The appellant submits that the cumulative effect of the Crown’s statements was to improperly denigrate his defence of a robbery gone awry, and that the trial judge’s failure to provide a sufficient corrective instruction, deprived him of a fair trial.

Doug as a fabrication

41In closing submissions, Crown counsel submitted on four occasions that Doug was a fabrication, stating that “there is no Doug” and that Doug “is a complete fabrication”. The appellant’s counsel objected and requested as a remedy reopening the trial, entering an an agreed statement of fact, or declaring a mistrial. The trial judge declined to grant any of the proposed remedies. He held that the third-party suspect ruling was not a close call and that the Crown had a good faith basis to submit that Doug was a fabrication. Further, the appellant had repeatedly transgressed the third-party suspect ruling by insinuating that Doug’s full name was known to himself and counsel, which operated unfairly to the Crown. Thus, the defence request to reopen the trial or present an agreed statement of fact related to Doug would be a further transgression of the ruling. Finally, he held that the Crown’s suggestion of fabrication only repeated its position that was put to the appellant over several days. The appellant raises the issue of the Crown’s statement that “Doug” was a fabrication again on appeal.

42I see no merit to this ground of appeal. The Crown was entitled to argue that “Doug” was a fabrication. There was no admissible evidence of Doug.

43On this point, context is important. Throughout the appellant’s testimony he repeatedly suggested that there was another suspect in the killing, at one time referencing the fact that “legal issues” were preventing him from saying more. This was a violation of the ruling on the third-party suspect application. It had reached the point where the trial judge cautioned the appellant that if he did it again, he would admonish him in the jury’s presence. Remember that the appellant had testified that the plan was to rob a man who thought he was buying a firearm. With that, the appellant was permitted to testify about what he alleged Justin had told him, which was that he had arranged to meet with someone named Doug and that his brother was going to bring the firearm. This is important because the appellant never sought to introduce Justin’s statements to him for the truth of their contents. As such, he was only permitted to reference this as part of the narrative. At the risk of repeating myself, what this meant was that there was no admissible evidence about Doug. The Crown’s theory was that there was no robbery plan, and therefore Doug was a fabrication. The Crown repeatedly suggested to the appellant in cross-examination that there was no robbery plan. Further, the Crown suggested to the appellant twice in cross-examination that Doug was a fabrication. Therefore, the Crown’s submission that Doug was a fabrication was a proper submission, and would have come as no surprise to the appellant.

44The trial judge addressed these concerns, just not in the way the appellant wanted. He found that there was no unfairness to the appellant. Of note, at no point in his final charge did the trial judge even reference the Crown’s fabrication argument. The trial judge otherwise laid out for the jury the Crown’s position that there was a plan to lure the brothers under the pretext of a robbery. He further referenced “Doug”, in that same context, when discussing the defence theory. In the circumstances, I see no reason to interfere with the trial judge’s ruling.

Appellant tailoring evidence to Crown disclosure

45I see no merit to the argument that the Crown improperly suggested that the appellant had tailored his evidence to the disclosure. It is an error of law for a trial judge to discount the credibility of an accused’s evidence on the basis that it was tailored to fit Crown disclosure, or evidence heard in court prior to the accused testifying: R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14, at paras. 25, 45; R. v. B.L., 2021 ONCA 373, at para. 45. Drawing the inference that advance notice of the case against an accused led them to tailor their evidence undermines the right to be present at their trial and to make full answer and defence: B.L., at para. 45; G.V., at paras. 24-25. However, in this case nothing was said by the Crown about the appellant’s access to disclosure, and it would have been clear to the jury that the Crown’s position was that the appellant was lying about what transpired at 325 Bogert. What the Crown did do, which was entirely appropriate, was suggest that the appellant had changed his evidence as given in the previous trial to align with the surveillance footage that was entered at the second trial (i.e., the February 13th clip which showed what the Crown argued was the appellant rehearsing the murder). It was open for the Crown to advance this argument, and it was for the jury to accept it or not, which had nothing to do with the disclosure and the appellant’s access to it. Further, the Crown had put this proposition to the appellant in cross-examination. This was not a case where the appellant had no opportunity to respond to the suggestion that he had tailored his evidence: R. v. Peavoy (1994), 34 O.R. (3d) 620 (C.A.), at p. 625. I note also that the appellant’s trial counsel did not propose corrective language. While there was an objection by counsel after the Crown’s closing submissions, after the trial judge attempted to address his concerns, counsel simply said that he was not satisfied with what was being proposed, stating that he would propose alternative language later, which he never did. In his charge to the jury, the trial judge did not provide an instruction regarding the Crown’s submissions about the surveillance footage. After the charge was read to the jury, appellant’s counsel did not seek to revisit the issue or propose alternative language.

46In the circumstances of this case, there was simply no risk that the jury would have used the appellant’s access to disclosure as a means to discredit him.

Evidence of Polujanska

47I also see no merit to the appellant’s submission that the Crown invited speculation in its closing submission in relation to Polujanska’s evidence. Polujanska testified that the two men she observed running in the hallway around the time of the murders were wearing black, and that neither were wearing a Dodgers jacket. In closing submissions, the Crown noted that the appellant was wearing his jacket open, with a black hoodie underneath, and suggested that running might have caused his jacket to fly open and fall off his shoulders, showing more of his black hoodie, and that the jacket would not have been visible given the dim lighting in the hallway. The appellant objected and the trial judge advised the jury that it should not speculate in relation to Polujanska’s evidence. The trial judge referred to this portion of the Crown’s closing and instructed the jury as follows:

You should not speculate. You should consider all of the relevant evidence on this issue, including the following. Ms. Polujanska was not asked to describe the lighting in the hallway. The time and duration of the events that she observed. How long it took, and in what space of time. Ms. Polujanska’s ability to observe, recall, and recount accurately what she saw. The two video clips taken after the fact in the hall in question. And the evidence of Don Johnson.

48The charge on this issue was adequate. Further, there was an evidentiary foundation for the Crown’s submissions. The jury could view the surveillance videos and make an assessment of the lighting in the hallway, as well as the appellant’s clothing and the fact that his jacket was slightly off his shoulders as he ran. In fact, the appellant testified that the video revealed him running with his jacket “kind of pulled back.” I would not give effect to this submission.

Appellant’s motive to kill Jerome

49I would also reject the appellant’s argument that the Crown’s theory of motive for the killing of Jerome lacked a foundation. First, this would have come as no surprise when the Crown delivered its closing, as it had been put to the appellant during cross-examination. Second, the alleged motive was not speculative. It was grounded in the evidence, including the fact that Justin had broken the “code of silence”, and that the brothers were both a part of the criminal subculture. The Crown vigorously examined the appellant on motive and suggested to him that what he did was retribution for Justin providing the police a statement about him. The Crown also cross-examined the appellant on his motive for killing Jerome, suggesting that he did so to ensure he did not seek retribution for Justin’s death. Consider this exchange between the Crown and the appellant:

Q. I’m suggesting that you actually did kill them. You brought them down to the basement area. You took them to an area that looked like a dead end and that’s where you shot Justin four times and Jerome twice, because Jerome would have been the person who would have sought revenge for the death of Justin. That’s my suggestion to you.

A. That’s wrong. I had no involvement in the killings of my friend and his brother, so I disagree with you.

50This theory was put to the appellant and, as indicated, there was a basis for doing so given the history between the appellant and Justin, and the appellant’s text messages, which were interpreted by Sgt. Jansz.

51I would reject this ground of appeal.

Issue #3 - Did the trial judge err by charging the jury on party liability?

52The appellant argues that it was an error to leave party liability with the jury.

53In this case, while two people were alleged to be involved in the commission of the offence, only one of them was before the court and on trial. In addition, there is no direct evidence as to the role played by each when the firearm was discharged nor of the intent of the other potential perpetrator, alleged by the appellant to be Cumsille.

54In instances like these, it is not necessary to prove who the principal was, or the precise part played by each in order to prove an accused’s guilt as a party: R. v. Cowan, 2021 SCC 45, at para. 31. R. v. Sparrow (1979), 51 C.C.C. (2d) 443 (Ont. C.A.), is also instructive. In Sparrow, at p. 458, this court found that:

[I]t is also appropriate, where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code [party liability], even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain.

55The Supreme Court of Canada adopted this passage from Sparrow as a correct statement of law: R. v. Isaac, [1984] 1 S.C.R. 74, 5 D.L.R. (4th) 193, at p. 81. It was therefore open to the trial judge to leave party liability with the jury even though Cumsille’s exact role in the commission of the offence was unknown, and even if it was uncertain that the fourth person was in fact Cumsille.

56Before addressing the charge on this issue, I will set out what the Crown said in its closing about its primary position that the appellant was the shooter:

You might be wondering about that gap in time from when we see the group of four disappearing down that block 10 hallway, at 1523, until we see Mr. Johnson and the person he identifies as Marcus running away. So that’s approximately 20 minutes in time. I don’t want to speculate about what might have been happening down that hallway during that period of time. We really don’t know very much about what might have been going on other than the evidence of Sergeant Cowan (ph) that when he came to the scene he smelled marihuana in that area where Justin and Jerome’s bodies were located. That’s all that we know for sure.

But I’d ask you to consider the following questions: If you accept that Mr. Johnson had a motive to kill Justin because he ratted him out two years earlier, and if he had decided that he was going to take Jerome down with him, do you think that Mr. Johnson would just shoot them and run off? Or would he want to give Justin a piece of his mind and get his resentment off his chest? We don’t know.

I’d ask you to remember the evidence, though, of the pathologist, Dr. Toby Rose. She testified that Justin was shot between four to six times, whereas Jerome was only shot twice. I suggest that you can use this evidence to infer that Justin was the primary target of the homicides, more so than Jerome.

57The Crown went on to argue that – while it was unlikely that anyone who was a same day recruit, like Cumsille, would be the shooter – the jury could still find the appellant guilty as a party to first degree murder. The appellant testified that he had recruited Cumsille to assist with the robbery the day of, and that Cumsille was the fourth person on the surveillance videos at 325 Bogert. This is what the Crown said to the jury on this issue:

Is it possible that the fourth party was the shooter? If you are not satisfied that Mr. Johnson was the actual shooter I expect that His Honour will tell you that he can, if you are so satisfied, be found guilty to first degree murder as a party.… And I suggest to you that you can find that Mr. Johnson’s involvement as a party included coming up with false robbery plans to lure Justin and Jerome to 325 Bogert Avenue, scouting out and directing the victims to the scene where the murders happened, supplying a firearm as the murder weapon and providing apartment 147 as a place to hide out after the murders were committed. It makes no difference if Mr. Johnson actually fired the shots or not if you find that he was a party to the murders.

58As was discussed at the pre-charge conference, the trial judge instructed the jury on the elements of aiding, and separately reviewed the evidence in the case.

59The appellant submits that there was no factual basis for party liability and that a finding of guilt on the basis of aiding was not open to the jury. He points out that there is very little evidence about the role Cumsille played in the murders, highlighting the grainy surveillance footage, limited camera views, and the fact that the shooting itself is not captured on video and does not show us where Cumsille was at that time. He further submits that there is limited evidence about what Cumsille knew before arriving at 325 Bogert, and what he did at 325 Bogert, and no evidence at all about what motive he may have had to do harm to the brothers. Appellant counsel frames it this way in his written argument: “[T]here is no conceivable way that the jury could have a reasonable doubt that the appellant was the shooter, yet be convinced beyond a reasonable doubt that Mr. Cumsille was the shooter and the appellant aided him.”

60I disagree. First, there was no error with the charge as it was presented to the jury. Second, there was an evidentiary foundation that allowed the trial judge to put a charge of aiding to the jury. In any event, the charge as ultimately given was more in the nature of a charge for co-principal liability for which there was ample evidence.

The legal standard for aiding and co-principal liability

61The mens rea for an aider to murder requires the aider to know that the principal has the intent required for murder, and acts with the intention of assisting the principal in its commission: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at paras. 87-89, leave to appeal refused, [2007] S.C.C.A. No. 258. To meet the knowledge component of the fault requirement for aiding, a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): Maciel, at para. 88; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 17. To convict an accused of first degree murder on the basis of aiding, a jury must be satisfied beyond a reasonable doubt that the accused knew that the principal intended to murder the deceased, that the accused intended to, and did in fact, aid the principal in doing so, and that the murder was, to the accused’s knowledge, planned and deliberate: R. v. McIntyre, 2012 ONCA 356, 291 O.A.C. 359, at para. 15.

62Alternatively, where there is evidence that multiple people acted in concert, pursuant to a common motive, in the commission of an offence, it is open to the jury to convict the accused either as a co-principal or as an aider or abettor to the crime even if the extent of the individual participation in the violence is unclear: R. v. Wood (1989), 51 C.C.C. (3d) 201 (Ont. C.A.), at p. 220, leave to appeal refused, [1990] S.C.C.A. No. 73.

63Co-principal liability arises when two or more people actually commit an offence, or where two or more people together form an intention to commit an offence, are present at the commission of the offence, and contribute to it – although they do not personally commit all the essential elements of the offence: R. v. Kennedy, 2016 ONCA 879, 345 C.C.C. (3d) 530, at para. 23; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 181; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63.

The jury instructions

64In his instructions on aiding, the trial judge specified that “[i]f a person knows that someone intends to commit an offence and goes to, or is present at, a place when the offence is committed, for the purpose of helping the other person commit the offence, that person is an aider of the other’s offence and is guilty of it.” The trial judge properly indicated that under a theory of aiding, both Cumsille’s intention to commit the crime and the appellant’s intention to help Cumsille commit the crime must be made out to support a finding of the appellant’s guilt. He instructed that “[f]or Don Johnson to be an aider, the Crown must prove that before the shooting, he formed the intention to help the shooter commit the offences. In terms of knowledge, for Don Johnson to be an aider, the Crown must prove that he knew the gunman intended to commit the offences”. Read in the context of the charge as a whole, the jury would have understood that, in order to find the appellant guilty of murder as an aider, they would have to be satisfied beyond a reasonable doubt that the appellant knew that the other person planned to kill the two brothers and that the appellant acted with the intention of aiding and in fact aided that other person in the commission of that offence.

65Although the charge was for aiding, because the evidence was that both the appellant and the fourth person were seen together going to and from the scene of the killings, it was drafted more in the nature of instructions on co-principal liability or joint enterprise, where the perpetrators formed an intention to commit an offence, were present at the commission of the offence, and participated in it. The trial judge instructed that since the Crown relied on the common-sense proposition that if Mr. Johnson participated in the murders as part of a “joint endeavour” or “joint plan”, then Mr. Johnson could be found guilty of murder, whether or not he was the shooter. The trial judge instructed:

In order to find that Don Johnson participated in the unlawful acts that caused these deaths, you must be satisfied either that he pulled the trigger and shot Justin and Jerome, or that acting together with the shooter in a joint endeavour to kill Justin and Jerome, or as part of a joint plan to kill Justin and Jerome, he participated in the killings in some way. If you are satisfied beyond a reasonable doubt that Don Johnson was part of a joint endeavour to kill Justin and Jerome, or a joint plan to kill them, you must then go on to consider whether he either; 1., meant for that particular deceased to be killed, or 2., meant for bodily harm to be caused to that person that Don Johnson knew was likely to kill him and was reckless whether he died or not.

66While it would have been preferable had the trial judge instructed on co-principal liability in addition to aiding, it is clear that he was instructing the jury to consider whether a “joint endeavour” was formed. In fact, as indicated, these instructions conform with the language generally used when charging on co-principal liability. For example, in Watt’s Manual of Criminal Jury Instructions (Toronto: Thompson Canada, 2005), the “Final 101-A: Joint Principals” model instruction for co-principal liability reads: “[w]here a criminal offence is committed by two or more persons, each may play a different part. If they are acting together, as part of a joint plan or agreement to commit the offence, each may be found guilty of it”: at p. 252. The instruction also complied with the requirements articulated by this court in Kennedy. That is, the jury is to be instructed that they have to be convinced beyond a reasonable doubt that the appellant was part of a joint endeavour, that he participated in the killings in some way, and that he meant for the deceased to be killed or suffer bodily harm that he knew was likely to kill them.

67On the specific facts of this case, trial fairness was not compromised by the way the trial judge formulated the charge. The trial judge properly laid out the essential elements of a charge of co-principal liability. Should the jury conclude that the appellant was a co-principal, it would, in the circumstances, encompass aiding. None of the appellant’s defences at trial were undermined by the instructions. As will be explained further in these reasons, there was ample evidence to support the charge and much of the evidence, whether considered in the context of aiding or co-principal liability, was the same and was properly relayed to the jury.

68In the end, both aiding and co-principal liability were properly put to the jury. There was no error with the charge itself.

Evidentiary foundation to support party liability

69As I noted earlier, this is a case where two people were present when two people were shot and killed and there was no direct evidence as to who shot the deceased. Although the evidence strongly supports the appellant being the shooter, there was an adequate foundation to support the appellant’s guilt under a theory of party liability as co-principal or as aider. A theory of liability can be left with the jury if there is an “air of reality” in the evidence to that theory: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 141, leave to appeal refused, [2011] S.C.C.A. No. 119; R. v. Figliola, 2018 ONCA 578, 141 O.R. (3d) 662, at para. 28. As this court explained in R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 67, in the context of aiding and abetting, “[t]he aiding and abetting provisions are properly left as a basis for liability if there is evidence upon which a jury could conclude that an accused was an aider or abetter”. The requirement that a jury “could” conclude an accused was an aider indicates that for the basis of liability to be properly left with the jury, there must be a sufficient evidentiary foundation for the jury to make the factual findings sufficient to ground liability on this basis. In order to convict the appellant as a party, the jury needed to be satisfied beyond a reasonable doubt either that the appellant knew that Cumsille had the intention for murder, and the appellant acted with the intention of assisting him in its commission: Maciel, at paras. 87-89; or that the appellant and Cumsille acted in concert pursuant to a common cause: Wood, at p. 220.

As Co-principal

70When, as here, the accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, Sparrow and Cowan indicate that direct evidence about the identity or activity of the other party need not be led to find the accused liable under a theory of party liability. In this case there is evidence that the appellant and the fourth man were at the crime scene at the relevant time and were involved in the commission of the offence. Indeed, this court has found that “if there is evidence that both accused were at the scene and ‘somehow involved in the death of the deceased’, party liability should be left even if the jury may be ‘unable to determine the exact nature of each [accused person’s] participation in the homicide’”: R. v. Carter, 2015 ONCA 287, at para. 36, citing Portillo, at para. 70.

71This is not a case where Cumsille – if he indeed is, as the appellant says, the fourth person – just happened to be at the scene by accident. There is ample evidence to support the jury inferring that the appellant and Cumsille acted in concert pursuant to a common motive. This evidence includes:

• The appellant testified that he invited Cumsille as the fourth man on the day of the shootings and told Jerome not to invite anyone else when Jerome expressed interest in doing so. It was open to the jury to believe the appellant’s evidence on this point.
• The appellant did not ask either Justin or Jerome if inviting a fourth person to the crime scene was all right, despite telling Jerome that he could not bring his own friend.
• The appellant exchanged a series of phone calls with a number he testified was Cumsille’s on February 5, 6, 10, 11, 12, 14, 16, 19 and 20, 2012. This indicates that the appellant and Cumsille were in regular contact in the days leading up to the murders.
• The surveillance videos establish that the fourth person ran away from the scene with the appellant after the shooting. Polujanska also testified that she saw two men running toward her and away from the area where the deceased were found. In other words, a fourth person was there with, and left with, the appellant – the only other person to survive of the four who attended the scene.
• The appellant testified that he fled the scene to his mother’s apartment after the shootings. The fourth person was there, during this event, with him.
• There is no evidence that either the appellant or the fourth person called 911.
• Neither the fourth person nor the appellant stayed to assist the brothers after the shooting.

72From this evidence a jury could conclude that the appellant and Cumsille were operating in a joint enterprise under a theory of co-principal liability: see Portillo, at para. 67.

As Aider and Abettor

73In the circumstances of this case, there is little difference between aiding and co-principal liability, as the plan clearly involved execution of the endeavour by both persons together. Evidence in support of Cumsille’s intent to commit murder is the same as the evidence to suggest his liability as co-principal. There is ample evidence that the appellant intended to kill, and that same evidence could be said to show that he intended to assist Cumsille. As the trial judge recounted in his jury charge, the appellant was observed a week prior to the murders at 325 Bogert with what looks like a handgun, after proposing to Justin and Jerome that they rob a drug dealer, which indicates that he had a firearm close in time to the homicides and that it was available to be provided to a fourth person. The appellant recruited the fourth person on the day of the shootings. The appellant’s mother lived in the building, which meant he was able to scope out the location of the homicides in advance and provide his mother’s apartment as a safe hideaway afterwards for himself and the fourth person. And the appellant asked others to delete messages they received from him, and disposed of his phone containing incriminating messages after the shootings.

74As such, once the jury rejected the appellant’s story that this was a robbery gone awry – which it must have, given the guilty verdict – there was only one available inference in relation to the fourth person, and that is he was there for the same purpose as the appellant, which was to assist the appellant in one way or another in the killing of the brothers. And on the Crown’s alternative theory, the fourth person shot the brothers. He was, after all, one of only two people who could have.

75What of the trial judge’s failure to directly link the evidence relevant to party liability, to his instruction on party liability? The failure to relate the evidence to the elements required to prove party liability can constitute a legal error: R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445, at paras. 139-140. However, a trial judge’s charge is not held to a standard of perfection. The requisite test is whether the jury was properly, and not necessarily perfectly, instructed: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 62; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 9. This court had occasion to comment on the extent to which a trial judge must review the evidence in their charge in R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 73, leave to appeal refused, [2014] S.C.C.A. No. 13:

[A] trial judge is under no obligation to review every item of evidence adduced at trial. The obligation is to review the substantial features of the evidence and to relate that evidence to the critical issues in the case so that the jurors will appreciate the value and effect of the evidence. Where the same evidence relates to more than one issue, there is no need to review the evidence twice, where once will do. It is of no moment whether the evidence is direct or circumstantial. [Citations omitted.]

76The trial judge’s lengthy review of the facts was recited separately from his instruction on party liability, and the evidence reviewed included the evidence providing the foundation for the aiding charge. It was not necessary for the evidence to be repeated twice. The trial judge properly recounted for the jury the above evidence, including how the appellant invited Cumsille to the scene without input from the brothers and how the appellant told Jerome not to bring anyone else. Put simply, if Cumsille was only there at the appellant’s invitation (with no forewarning to or input from anyone else), surely he knew the real purpose, which was to kill the brothers. Otherwise, it would have made no sense to drag Cumsille into this.

77That being the case, it was open to the jury to find that Cumsille was the shooter, that the appellant knew Cumsille had the intention for murder, and that the appellant acted with the intention of assisting him in its commission; or that the appellant and Cumsille acted in concert pursuant to a common cause.

78The Crown’s theory was clear, as was the trial judge’s instruction to the jury, which is that they did not have to definitively conclude that one or the other was the shooter, and in the unique circumstances of this case, once the jury rejected the appellant’s testimony, common sense required a finding either that the appellant and the fourth man had a common intention, or that one aided the other in the planned and deliberate murder of the brothers.

79I would reject this ground of appeal.

Disposition

80For these reasons, I would dismiss the appeal.

“J. George J.A.”

“I agree. Paul Rouleau J.A.”

Nordheimer J.A. (dissenting):

81I have read the reasons of my colleague. I agree with his conclusion regarding the alternate suspect issue. I also agree with his conclusion regarding the issues surrounding the Crown’s closing, although I find the impugned portions of the closing to be more problematic than my colleague does, especially given that they emanated from Crown counsel. Consequently, I do not share my colleague’s view that there is no merit to that ground of appeal. I merely agree that it is not sufficient, on its own, to require a new trial.

82Where I part company with my colleague is over the issue of party liability. In my view, there was an insufficient evidentiary foundation to leave the route of party liability with the jury. Put another way, there was no “air of reality” to the suggestion that, if the appellant was not the shooter, he aided the actual shooter in the commission of the murders. Separate and apart from that error, the instructions that the trial judge gave on party liability were inadequate.

83While my colleague has set out the background facts, it is important for the consideration of this issue to set out how it arose. The suggestion that party liability should be put to the jury arose, for the first time, in the pre-charge conference. Crown counsel only then raised the issue that party liability should be put to the jury and asked that it be done in two ways. The first was under s. 21(2), that is, common intention. The second was under s. 21(1), that is, aiding and abetting.

84Defence counsel objected to either basis of party liability being put to the jury. Towards the conclusion of defence counsel’s submissions on the inapplicability of s. 21(2), Crown counsel conceded that liability under that route should not be put to the jury because there was no evidentiary foundation that would support it. The remaining issue was whether s. 21(1) (aiding and abetting) should be put to the jury. As the conference continued, it seems to have been accepted that abetting should not be put to the jury, thus leaving aiding as the only issue.

85The defence said that the only way that aiding could arise was if the other person present, whom the appellant had identified as Marcus Cumsille, was the shooter. It would then have to be established that the appellant aided Cumsille in shooting the deceased. However, defence counsel pointed out that there was no evidence to support that theory. He said: “And in my submission, there’s absolutely zero evidence which the jury could look at for the purpose of deciding that Mr. Cumsille was the shooter.”

86The trial judge then suggested that there could be another unknown person who was the shooter, and who was able to get to the scene of the shooting without being recorded on the security cameras. Defence counsel again responded that there was no evidence that would support that theory or provide a foundation for an instruction that the appellant might have aided that person in the commission of the offence. Crown counsel appears to have agreed that there was no evidence that another person, other than the person the appellant identified as Cumsille, was the other possible shooter, aided by the appellant.

87The discussion continued and defence counsel returned to the point that there was no evidence warranting an instruction on aiding. He told the trial judge:

There has to be an air of reality to the idea that the shooter was someone other than Johnson … There has to be a factual foundation that Cumsille was the shooter, in order to be able to make a 21(1) situation appropriate, in my submission. And in my submission, there is nothing to that, there is no motive, there is no indication that he was summoned for that purpose, nothing along those lines.

88Crown counsel then indicated what she saw as the specific evidence in support of aiding:

1. the appellant lured both deceased to the scene;
2. the appellant provided the firearm;
3. the appellant provided the location of the shooting because his mother lived in the building, and he had the opportunity to scout out the area in advance; and
4. the appellant provided his mother’s apartment as a safe hideaway after the shooting.

89Defence counsel responded and expressed concern about “the idea of confusing the jury by giving them multiple avenues when really there’s one avenue.” The discussion concluded with the trial judge indicating that his intention was to instruct the jury on aiding.

90The trial judge did ultimately instruct the jury on aiding as a route to conviction. In doing so, however, the trial judge did not adequately set out the requirements that had to be met to prove that route to a conviction beyond a reasonable doubt. My colleague excuses this failing by pointing out that a jury must only be properly instructed, not perfectly instructed. However, that principle does not solve the problem in this case because, as Strathy J.A. observed in R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at para. 63, while an accused person is not entitled to a perfect jury instruction, they are entitled to a legally accurate one.

91The instructions on aiding began well enough. For example, the trial judge told the jury:

It is not enough that what the aider does or does not do 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.

92The trial judge continued and correctly instructed the jury:

Aiding relates to a specific offence. An aider must do something or omit to do something for the purpose of helping the other person to commit the offence. The state of mind requirement expressed by the phrase “for the purpose” requires Crown counsel to prove both intent and knowledge.

93The trial judge then left the issue of party liability and proceeded to deal with the issue of whether the deaths of the deceased were caused unlawfully. It is at this point that the instructions relating to party liability falter. Rather than dealing with party liability as a separate route to conviction, which would have been preferable, the trial judge returned to the party liability issue time and again as he dealt with the other elements of the offence of first-degree murder. This approach only served to confuse the two different potential routes to conviction.

94This confusion becomes apparent when one gets to the concluding instructions that the trial judge gave on whether the deaths were caused unlawfully – a subject on which I would have thought there would have been no disagreement. In any event, the trial judge concluded on that issue by saying:

Finally, if you are satisfied beyond a reasonable doubt that the accused, Don Johnson, participated in the killing of Jerome Waterman on count 1, or Justin Waterman on count 2, it is not necessary for you to decide whether or not he was the one that fired the fatal shot. He and another person who participated in the killing with him would have both caused the deaths, even though you cannot determine which of them shot the bullets that killed the deceased. And it makes no difference if some of you conclude that you can determine who fired the fatal shots, and some of you cannot conclude, so long as you are all satisfied beyond a reasonable doubt that, whether or not Don Johnson fired the fatal shots, he participated in the killing of Jerome on count 1, and Justin on count 2, in the way I have defined it.

95This instruction is problematic because the trial judge had not, in fact, “defined” how the appellant might have “participated” in the killings. In that regard, it is important to remember that for a person to be found guilty as an aider, the prosecution must prove, beyond a reasonable doubt, that the accused intended to aid a specific offence, in this case, first-degree murder. The jury must have that requirement clearly drawn to their attention: 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.

96Regrettably, given the approach that the trial judge took to the instructions on party liability, he never clearly and separately told the jury that, in order to find the appellant guilty of first-degree murder as an aider, the jury had to be satisfied, beyond a reasonable doubt, that the appellant knew that the other person planned to kill the deceased, and that the appellant acted with the intention of aiding that other person in committing that offence: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 17.

97My colleague acknowledges this requirement for party liability based on aiding. However, he then seems to excuse the problem that arises with respect to the trial judge’s instructions on this route to party liability by saying:

While the trial judge indicated that his charge was for aiding, it conformed to the instructions on co-principal liability or joint enterprise, where the perpetrators formed an intention to commit an offence, were present at the commission of the offence, and participated in it.

98In other words, my colleague appears to excuse the flawed instruction on aiding by saying that the trial judge properly instructed on liability as co-principals, yet a third route to liability, and one that neither counsel had requested and that was not discussed in the pre-charge conference. It seems to me to be an extraordinary proposition to suggest that an error in instructing a jury on one route to liability can be cured by finding a proper instruction on a different route to liability, especially when we have no idea which route the jury took to their finding of guilt.

99The trial judge further confused the issue in the next section of his instructions when he dealt with the issue of the state of mind required for murder. Having properly set out the requirements for that state of mind, the trial judge then allowed for the possibility that the appellant “was not the shooter, or what if you are not sure whether he was the shooter or not?” In addressing that possibility, the trial judge told the jury:

In order to find that Don Johnson participated in the unlawful acts that caused these deaths, you must be satisfied either that he pulled the trigger and shot Justin and Jerome, or that acting together with the shooter in a joint endeavour to kill Justin and Jerome, or as part of a joint plan to kill Justin and Jerome, he participated in the killings in some way.

100As I have already observed, the trial judge has now provided an instruction on an entirely different basis for party liability, namely the appellant and the shooter as joint principals. This has nothing to do with aiding. In doing so, the trial judge opened yet another route for finding guilt in this case, and one which, as I have already said, neither side had asked for and that was also not grounded in the evidence.

101The trial judge moved on to the final element of first-degree murder, namely, whether the murders were planned and deliberate. He began his instructions on this element also in a problematic way. The trial judge said:

So, the question is: was Don Johnson’s murder of the deceased both planned and deliberate? And you will only get to this stage if you are satisfied beyond a reasonable doubt that he participated in the death of these two men as I have defined it.

102The problem with this instruction is that it once again confuses the two possible routes to conviction. If the appellant is the principal, that is, the shooter, then it is correct that the jury must decide if his killing of the deceased was planned and deliberate. However, if the appellant is not the shooter, then the questions that the jury had to answer were: (i) whether the shooter’s killing of the deceased was planned and deliberate; and (ii) whether the appellant knew of that plan and decided to aid the shooter in carrying it out. The instructions that were given ignore that critical difference. That is not the end of the problems, however. Indeed, it is at this point that the most fundamental problem with the instructions on aiding comes to be seen.

103That fundamental problem is that the trial judge did not, at any point in his instructions, tell the jury what the evidence was that related to the requirements for aiding. In other words, the trial judge never drew to the jury’s attention what evidence the Crown had led that might prove guilt on the part of the appellant as an aider. My colleague excuses this problem by saying that the trial judge had given a detailed account of the evidence earlier in his instructions and there was no obligation to repeat it. While that is true as a general proposition, it does not change the fact that a trial judge is obliged to relate the evidence to the elements of the offence. It is simply inadequate, even on a functional reading of the charge, for a trial judge to recite the evidence and the elements of the offence but not link the two. This is especially true when the facts that will support a finding of guilt will differ between the routes of liability advanced.

104In that regard, the trial judge committed the same error that this court dealt with in R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, where Doherty J.A. said, at para. 67:

Although the trial judge made reference to aiding in the course of discussing the elements of the offence, he never explained what the Crown had to prove to establish liability for murder as an aider. He did not relate the generic description of aiding to the specifics of this case, or the evidence that could assist the jury in determining whether either appellant was liable as an aider.

105In fact, in discussing the element of whether the murders were planned and deliberate, the trial judge committed the same error that he committed earlier by confusing liability as joint principals with liability as an aider. The trial judge told the jury on this element:

On this issue, the Crown relies on the common sense proposition that if Don Johnson participated in the killings, as part of a joint endeavour to kill Justin and Jerome, or as part of a joint plan to kill Justin and Jerome, then whether or not he was the shooter, his participation in the murder of the deceased was both planned and deliberate.

106The trial judge proceeded to the issue of motive and described the evidence that the prosecution put forward as establishing the appellant’s reason for killing these two men. This evidence, of course, only had relevance to the appellant as the shooter. It did not assist the jury in any way in deciding why another person (i.e., the fourth man), to whom the appellant allegedly provided his assistance, would have wanted to kill these two men.

107The only time that the trial judge made any reference to the evidence that might address liability as an aider is when the trial judge referred to the position of Crown counsel in his summary of the parties’ positions. In that summary, the same four points that Crown counsel set out in the pre-charge conference – that the appellant lured the deceased to the scene, provided the firearm, provided the location of the shooting, and provided a hideaway after the shooting – were mentioned. However, none of that evidence proved the necessary elements for a charge of first-degree murder if the other person was actually the shooter. It all relates to the appellant. More specifically, the Crown had not led any evidence of why this other person would have an intention to kill these two men or would have planned and deliberated their killings.

108Of some importance to that latter point is the fact that Crown counsel did not accept that the other person present, and therefore the other possible shooter, was Cumsille. The Crown’s position was that the identity of the person who might have been the other shooter was unknown. If the identity of the other shooter is unknown, it becomes even more difficult to discern the factual foundation that would establish the reason for the shootings or the fact that they were planned and deliberate. Indeed, if the fourth man is not Cumsille, then we have no evidence as to how or why that man was present for the shootings.

109I agree with my colleague that, in order to convict the appellant as a party, the jury needed to be satisfied beyond a reasonable doubt either that the appellant knew that the fourth man had the intention for murder, and the appellant acted with the intention of assisting him in its commission, or that the appellant and the fourth man acted in concert pursuant to a common cause. The problem is that there is no evidence which would support either of those theories nor did the Crown advance any such evidence. The Crown’s case throughout was that the appellant was the shooter. Further, and more importantly, there was no evidence led as to the role or involvement of the fourth man in the shootings. We simply do not know why the fourth man was present, if he was the shooter. Without that knowledge, there is no basis upon which the jury could reasonably conclude that the fourth man planned the shootings and that the appellant aided him in it. Simply put, there was no air of reality to this route to liability.

110The case should have been put to the jury as it was developed in the evidence – that the appellant shot the two deceased because he wanted revenge. Any verdict by the jury would then have been based on the evidence. However, Crown counsel overreached by suggesting to the trial judge that another route to liability was available, that is, aiding. In fact, Crown counsel’s overreach was broader than that, but it eventually narrowed to aiding alone. The trial judge should have resisted the Crown’s overreach but did not. Rather, the trial judge compounded the problem by suggesting that there might be yet another person involved.

111All of this speculation led to alternative routes to liability being left with the jury that were not based on the evidence. That resulted in the reasonable possibility that the jury, or some of them, convicted the appellant on a route to liability that was not properly left with them. Most dangerously, it permitted one or more jurors, who were not satisfied that the appellant was the shooter, to nonetheless convict the appellant on the basis that he was there and thus must have aided in the result. The verdict is, consequently, unsafe.

Conclusion

112I would allow the appeal, set aside the conviction, and order a new trial.