Her Majesty the Queen v. Josipovic

[Indexed as: R. v. Josipovic]

Ontario Reports

Court of Appeal for Ontario

Doherty, Hourigan and Harvison Young JJ.A.

July 31, 2019

147 O.R. (3d) 346 | 2019 ONCA 633

Case Summary

Criminal law — Trial — Charge to jury — Parties

Brothers J and M convicted of second degree murder. Crown's theory being both accused guilty of first degree murder as result of joint venture. Defence position being that J shot victim but had defences of self-defence and provocation and that M accompanied J but had nothing to do with shooting. Appeal from conviction allowed. Trial judge erring by conflating accused into single entity when describing potential liability, application of defences and application of reasonable doubt. No basis for instruction that jury could conclude that J and M caused victim's death as was single shooter and no evidentiary support for guilt on basis of co-perpetrators. New trial ordered.

Criminal law — Trial — Charge to jury — Theory of liability

Accused tried for first degree murder but found J and M guilty of second degree murder. Crown's theory being both accused guilty of first degree murder as result of joint venture to plan and deliberate murder. Defence position being that J shot victim but had defences of self-defence and provocation and that M accompanied J but had nothing to do with shooting. Appeal from conviction allowed. Trial judge erring in his charge to jury by conflating J and M into single entity. No basis for instruction that jury could conclude that J and M caused victim's death as was single shooter and no evidentiary support for guilt on basis of co-perpetrators. Judge should have instructed jury that should first determine who shooter was and then determine liability based on liability under s. 21(1)(a) for person who commits offence. Jury should then have been instructed to determine liability for non-shooter based on whether proven that accused proven to be aider or abettor under s. 21(1)(b) or (c). Particularly important to instruct on need to assess liability for each accused separately as facts to prove guilt as perpetrator different from those required to prove aiding or abetting. Error in failing to separate issues regarding each accused impacting instruction regarding proof of causation for murder as well as mens rea. New trial required.

Facts

J and his brother M were charged with first degree murder and were convicted of second degree murder. It was accepted at trial that one of the accused killed the victim, who died of a single gunshot wound to the head, and that both accused were present when the victim was killed. The Crown's position was that the accused agreed that they would hunt down and kill the victim, that they chased him through the streets in J's truck, and that they caught and killed him. J testified that he was the shooter but raised the defences of self-defence and provocation. J denied that he and M had a plan to kill the victim. M testified that he had no involvement in the killing. M said that he tried to dissuade J from chasing the victim, and although he only wanted to go home, he felt that he could not abandon his brother. The accused appealed.

Held, the appeal should be allowed.

The trial judge erred in his charge to the jury by conflating J and M into a single entity and failing to instruct the jury that the case for and against each accused had to be assessed separately. He failed to draw a distinction between liability as a perpetrator and liability as an aider. His failure to clearly articulate the difference between the mens rea required for a perpetrator and the mens rea required of the aider or abettor invited the jury to consider the liability of the accused together as a single unit. The failure to delineate the separate bases for liability when describing the elements of the offence of murder was exacerbated by the fact that the trial judge left the defences of self-defence and provocation with the jury as available to both accused and did not distinguish between the two accused when explaining the defences. By assigning J's defences to M, who did not claim them, the trial judge not only undercut M's actual defence, but further linked the fate of both accused and invited the jurors to reach common verdicts. The trial judge also presented the accused as a unit rather than as individuals when explaining the operation of the burden of proof. Contrary to the trial judge's instructions, the jury was not required to accept the evidence of both accused to acquit either; nor was the jury required to have a doubt about the evidence of both accused to acquit either. Finally, the trial judge's instructions on the use the jury could make of after-the-fact conduct improperly presented the accused as a single entity. Assuming, without deciding, that J's after-the-fact conduct had some probative value on a live issue at trial as against J, it could not assist the jury in respect of the case against M.

The trial judge failed to adequately describe and distinguish potential liability as an aider from liability as a perpetrator. The trial judge should have instructed the jury that they first had to determine whether the Crown had proven who shot the victim. If they were satisfied that the shooter's identity was proven, then the jury should have been instructed to determine if the Crown had proven the elements required to convict that accused as a perpetrator pursuant to s. 21(1)(a). He never explained what the Crown had to prove to establish liability for murder as an aider. This was important as different facts had to be proven to convict an accused of being a perpetrator as opposed to an aider or abettor. The judge frequently conflated instructions about the accused as if they were a single person who would be found guilty or not guilty of the same level of liability. 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 accused was liable as an aider. The trial judge should have left manslaughter with the jury as a possible verdict in respect of the aider.

The curative proviso could not be applied to the trial judge's errors. While the case against both accused was formidable, the errors resulted in a significant disconnect between the manner in which the trial judge presented the case to the jury and the narrative revealed by the evidence. There was a real risk that the jury would approach the liability of the accused jointly, premised on instructions which focused almost exclusively on the legal liability of the perpetrator and erroneously presented the accused as potential co-perpetrators.

I. Overview

[1] John Josipovic ("John") and his younger brother, Mato Josipovic ("Mato"),¹ were charged with the first degree murder of James Louis Malone ("Malone"). The jury convicted both appellants of second degree murder. Each received a sentence of life imprisonment, without eligibility for parole for 13 years.

[2] Both appellants appeal their convictions. Mato appeals his sentence. There is no appeal by the Crown from the acquittals on the first degree murder charge.

[3] Most of the arguments on the conviction appeals focus on the trial judge's charge to the jury. For the reasons that follow, I am satisfied that two of those arguments should succeed. I would quash the convictions and order a new trial for both appellants on the charge of second degree murder.

II. The Positions of the Parties

[4] The deceased, Malone, was shot at point-blank range and killed as he lay on a street in the east end of Hamilton. It was accepted at trial that one of the appellants shot and killed Malone and that both appellants were present when Malone was killed.

[5] The Crown argued that the appellants had agreed shortly before the shooting that they would hunt down and kill Malone. They went looking for Malone in John's truck. They found him and chased him through the streets of the east end of Hamilton for several minutes, firing several shots. Eventually, they caught Malone and killed him.

[6] Various witnesses saw parts of the chase that culminated in the shooting of Malone. Some identified the passenger of the truck as the shooter. The Crown argued that the evidence supported the inference that Mato was the passenger and that John was driving his truck throughout the chase.

[7] The Crown submitted, however, that it did not matter, for the purposes of criminal liability, which brother actually fired the gun. The Crown argued that Malone's killing was the product of, and done in furtherance of, the brothers' plan to find and kill him. The Crown took the position that, whichever brother fired the fatal shot, both were guilty of first degree murder.

[8] John testified and admitted that he shot and killed Malone. He testified that he had the gun throughout and fired all of the shots. He denied any plan with Mato to find and kill Malone. According to him, his brother had nothing to do with the killing. John advanced the defences of self-defence and provocation.

[9] Mato also testified. He, too, indicated that John had the gun throughout the chase. Mato further testified that he saw John knock Malone to the ground with the shotgun, heard a shot as he exited the truck and then observed that Malone was deceased. Mato indicated that he was driving John's truck and doing the best he could to get John to stop the pursuit. Mato denied that he was party to any plan to murder Malone, and insisted he had no involvement in the killing of Malone. He only wanted to go home, but felt he could not abandon his brother.

III. The Facts

[10] The appellants had known Malone since childhood. They grew up in the same part of the east end of Hamilton. John and Malone had been good friends.

[11] Although the appellants had been in and out of trouble as young men, they had settled down, gotten good jobs, moved away from the old neighbourhood and started families. They lived beside each other in Grimsby, a town to the southeast of Hamilton. Neither had been in trouble with the criminal law for many years.

[12] Malone had remained in the old neighbourhood and had become firmly entrenched in the criminal underworld. He had a reputation for criminality, violence and intimidation. Malone had been a member of the Hell's Angels Motorcycle Club, but had been forced out when he physically attacked another member. At the time of the homicide, Malone was the head of a gang known as "Ruthless".

[13] Various witnesses, including the appellants, testified that they were aware of Malone's reputation for violence. The jury heard evidence of acts of serious violence committed by Malone over the years. They also heard that people who were victimized by Malone were afraid to go to the police.

[14] John testified that he made a loan to an acquaintance. When that person did not fully repay John, he demanded repayment. The person told John that he was in Malone's gang and intimated that John should not press him for payment. John told this person that he did not care about that person's relationship with Malone and that he wanted to be repaid.

[15] About a week before the homicide, Malone spoke to John over the phone. He told him that his demands for repayment of the loan had "insulted" Malone. Within the next few days, John became concerned, for various reasons, that Malone would harm him and his family. He offered to forget the debt. Malone demanded payment of a $9,200 "tax". Malone was well-known for using these kinds of extortion tactics.

[16] John and Malone met on one occasion in the week before the homicide. Malone's threats escalated to include John's family. He physically assaulted John.

[17] John saw no point in paying Malone the demanded "tax". He believed that Malone would only demand more money and continue to threaten John and his family. John also saw no value in going to the police. He believed they would have no interest in helping him, and that if he went to the police Malone would have yet another reason to harm him.

[18] John decided to do his best to protect himself and his family. He took certain defensive measures, including retrieving a shotgun from his parents' barn and putting it in his truck.

[19] Mato knew nothing about Malone's attempt to extort John and his threats against John and his family. On the night of the homicide, Malone called Mato at work, saying he wanted to speak to him about his brother. Mato agreed to meet with him later that evening. Mato phoned John to ask him about Malone's call, but ended the conversation without discussing the matter upon realizing his brother had been sleeping.

[20] Mato and Malone eventually met at a pool hall at around 12:15 a.m. on the night of the homicide. The meeting began cordially, but quickly descended into threats aimed at John, should he not pay the "tax" imposed by Malone. Malone told Mato that he would also be required to pay the "tax".

[21] Mato became concerned for his own safety and decided to leave the pool hall. As he was walking across the street, he was attacked by Malone and at least one other person. Mato was struck several times. During the attack, Malone put a gun against Mato's chest. Malone and the other assailant took Mato's keys and tried to force him into his truck. Mato escaped and fled to a nearby store. Malone took Mato's truck.

[22] Mato called John and told him what had happened. John immediately left his house and drove to get his brother. He had the shotgun with him.

[23] Mato waited at the store from which he had called his brother. While Mato was waiting, Malone called and threatened him. When John arrived at the store, Mato got into John's truck. John was in the driver's seat. Mato told his brother what had happened. John could see that Mato had been beaten. It was about 1:20 a.m.

[24] The brothers decided to look for Mato's truck. As they were driving around, they saw Malone walking his dogs. According to the brothers, this was a pure coincidence and they had not gone looking for Malone. The Crown maintained that the brothers were, in fact, searching for Malone, having decided to kill him and put an end to his assaults and threats.

[25] John drove up to Malone and spoke to him about attacking Mato that night. Malone responded with crude language, threatening to kill John's wife and son, as well as John and Mato.

[26] Immediately after Malone's threat, one of the appellants fired the shotgun at Malone, grazing his neck and tearing the collar of his jacket. Malone fled. A chase ensued. At times, both appellants were in the truck chasing Malone and at times one of the appellants was on foot and the other was in the truck. Malone was on foot throughout the chase.

[27] Eventually, the truck, with both appellants inside, caught up to Malone on the street. One of the brothers exited the truck, struck Malone across the head with the shotgun, knocking him to the ground and breaking the stock of the shotgun. That brother then shot Malone in the head at point-blank range.

[28] The jury heard considerable evidence about the chase that ended with the shooting of Malone. Much of the evidence came from persons who saw parts, but not all, of the chase. Not surprisingly, their evidence differed in many respects.

[29] John and Mato also described the events. Their evidence was consistent. On their evidence, John was initially driving the truck, but jumped from the driver's seat to fire the shotgun at Malone after the initial confrontation. According to John, he "snapped" when Malone threatened his family. Mato moved into the driver's seat.

[30] The appellants testified that after the initial encounter, Mato was driving the truck and John, armed with the shotgun, was either chasing Malone on foot or sitting in the passenger seat. According to both brothers, John fired all of the shots and John was the person who struck Malone across the head with the shotgun, and then shot him in the head, as he lay on the ground.

[31] Some of the evidence from the witnesses who saw parts of the chase supported the inference that Mato was the passenger and the shooter. Parts of their evidence were also consistent with the Crown's contention that the driver of the truck and the individual on foot with the gun were working in tandem in an effort to "corral" Malone. One witness also described what appeared to him to be an effort by the driver of the truck to run Malone over.

[32] Based on the timing of the 9-1-1 calls, the fatal shot was fired at 1:26 a.m., about three or four minutes after the initial shot was fired. In total, six shots were fired at Malone.

[33] After Malone was killed, the brothers immediately drove home to Grimsby. The police quickly identified John's truck as being at the scene of the shooting. They had John's home under surveillance by early the next morning. They saw John standing by a fire in the fire pit in his yard. Subsequent forensic examination of the fire pit revealed traces of clothing. The Crown theorized that John was burning the bloodstained clothing that either he or Mato was wearing at the time of the shooting.

[34] In his evidence, John acknowledged that he had removed the toolbox from the back of his truck shortly after the homicide. He said he did so because it was broken during the chase. The Crown argued that he removed the toolbox in an effort to change the appearance of his truck.

[35] John also testified that he threw the shotgun into a bin at a scrapyard. The gun was never recovered. The Crown argued that John threw the gun away in an attempt to destroy evidence relevant to the homicide.

IV. The Grounds of Appeal

[36] Both appellants submit that the trial judge's instructions, read as a whole, conflated the positions advanced by the appellants into a single defence position which effectively treated the appellants as a single entity for the purposes of the jury's deliberations. The appellants contend that in doing so, the trial judge adopted a perspective that strongly favoured the Crown's joint enterprise theory and seriously undermined each appellant's right to have their case considered individually on its own merits and independently of the merits of the case against the other appellant.

[37] Mato also submits that the trial judge failed to relate the principles applicable to liability as an aider to the elements of the offence of murder, or to the evidence in this case. Counsel argues that, apart from generic instructions on aiding, the trial judge put the case to the jury almost exclusively in terms of the potential liability of the shooter. Counsel contends that instead of instructing the jury on the elements of the offence of murder as they applied to an aider, the trial judge wrongly presented the jury with the option of finding that the appellants were liable for the murder as co-perpetrators. Counsel maintains that on the evidence, there could only be one perpetrator -- the shooter. The non-shooter's liability depended on an application of the aiding and abetting provisions in s. 21(1)(b), (c) of the Criminal Code, R.S.C. 1985, c. C-46.

[38] Counsel further submits that the trial judge wrongly instructed the jury that if they found the perpetrator guilty of murder and were satisfied that the other brother aided in the killing, they must convict the aider of murder as well. Counsel submits that this instruction is wrong in law and that the aider is not necessarily guilty of the same offence as the perpetrator.

[39] There is substantial merit to both arguments. To some extent, they are interrelated. The failure to adequately describe and distinguish potential liability as an aider from liability as a perpetrator contributed to the conflation of the cases for and against the two appellants.

A. The Conflation of the Appellants into a Single Entity

[40] Criminal liability is personal. In cases involving more than one accused, the jury must be told that the case for and against each accused must be assessed separately. This instruction is particularly important when the Crown puts forward a joint venture theory of liability and the accused testify and advance very different positions.

[41] The trial judge made reference to this fundamental principle early in his instructions:

It is important to remember, however, that although the accused have been charged and are being tried together, each is a separate individual who cannot be found guilty of any offence unless the evidence relating to him proves his guilt of that offence beyond a reasonable doubt. Each person is entitled to separate consideration in relation to this charge. Each is 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.

[42] Unfortunately, the rest of the trial judge's instructions do not reflect or apply this admonition. When the trial judge turned to the specific elements of the offence of murder and the defences available to the charge, he repeatedly used the phrase "John and/or Mato" when describing potential liability and the potential applicability of the defences. For example, in describing the elements of first degree murder, as applied to both appellants, the trial judge told the jury that they must be satisfied beyond a reasonable doubt that:

• John and/or Mato Josipovic caused the death of Louis Malone;
• John and/or Mato Josipovic caused the death of Louis Malone unlawfully;
• John and/or Mato Josipovic had the state of mind required for murder;
• the murder was not provoked; and
• John and/or Mato Josipovic's murder of Louis Malone was both planned and deliberate.

[43] After referring to the elements of the offence, the trial judge said:

If Crown counsel has not satisfied you beyond a reasonable doubt of each of these essential elements, you must find John and/or Mato Josipovic not guilty of first degree murder.

If Crown counsel has satisfied you beyond a reasonable doubt of each of these essential elements, you must find John and/or Mato Josipovic guilty of first degree murder.

[44] There were literally dozens of references to the phrase "John and/or Mato" in the jury instructions, particularly in respect of the elements of the offence of murder and the defences available. The terminology used by the trial judge was not, in and of itself, misleading or improper. Jury instructions must, however, be evaluated not by reference to the suitability of individual phrases and words, but rather by reference to the overall meaning conveyed, having regard to the context of the evidence and the trial as a whole: see R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 10.

[45] I would not go so far as the appellants would urge and find that the repeated use of the phrase "John and/or Mato" effectively neutered the trial judge's earlier instruction to the jury that they must consider the case against each appellant separately. I would, however, agree that the repeated use of that formulation gave the instruction a tone which suggested, at least to some extent, that the cases for and against the two brothers stood or fell together.

[46] In one respect, the trial judge's reference to "John and Mato" possibly causing Malone's death was potentially misleading and without foundation in the evidence. Malone died from a single gunshot to the head. There was one shooter and no basis upon which a jury could find that John and Mato, acting together, caused Malone's death as co-perpetrators: see Pickton, at para. 63 (per LeBel J. concurring). By leaving it open to the jury to conclude that "John and Mato" had caused Malone's death, the trial judge invited a finding of liability on a basis that had no support in the evidence, and improperly linked the liability of John and Mato together.

[47] It was essential that the trial judge tell the jury that in addressing the liability of the appellants, and in particular the elements of the crime of murder and the defences, the jury must consider the potential liability of each appellant separately. To properly do so, the trial judge should have told the jury that they should first decide whether the Crown had proved the identity of the shooter beyond a reasonable doubt. If so, the jury should consider the shooter's liability on the basis of the trial judge's instructions in respect of individuals who actually commit the crime (s. 21(1)(a)). The jury should have been told to next consider the liability of the non-shooter as an aider or abettor (s. 21(1)(b) and (c)) as the trial judge would explain those terms.

[48] Drawing a clear distinction between the legal basis for the perpetrator's liability and the bases for liability of the helper is important because the facts which the Crown must prove beyond a reasonable doubt are different depending upon whether liability flows as a perpetrator or as an aider. In a case in which liability for one accused flows as a perpetrator and liability for another flows as an aider or abettor, the trial judge must clearly draw that distinction.

[49] The manner in which the trial judge described the elements of the offence of murder did not make that distinction clear, but instead treated the two appellants as a single entity. In describing the causation requirement for the offence of murder, the trial judge told the jury that it must be satisfied that "John and/or Mato Josipovic caused the death of Louis Malone". As explained above, the causation requirement has application only to the perpetrator, not to an aider. One can aid in a murder without in any way causing the victim's death: see R. v. Dooley, 2009 ONCA 910, [2009] O.J. No. 5483, at paras. 117-124.

[50] The trial judge's instruction on the mens rea requirement for murder also failed to draw the distinction between liability as a perpetrator and liability as an aider. The trial judge's instructions tracked the mens rea requirement in s. 229(a). That requirement applies to the perpetrator. The aider's mens rea is different. To be guilty of murder, the aider must know that the perpetrator had the requisite intent and the aider must intend to assist the perpetrator in the homicide: see R. v. Zoldi, 2018 ONCA 384, [2018] O.J. No. 2380, at paras. 21-22; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 16-18. The trial judge's failure to clearly articulate the difference between the mens rea required for a perpetrator and the mens rea required of the aider invited the jury to consider the liability of the appellants together as a single unit.

[51] The trial judge should also have told the jury that even if they could not identify the shooter beyond a reasonable doubt, there was an alternative basis upon which they could convict either or both appellants. The jury could convict if satisfied beyond a reasonable doubt that either or both appellants had participated in the killing, in the sense that the brother had either shot Malone or aided or abetted his brother in the killing of Malone. If the jury reached that conclusion with respect to either brother, that brother was guilty of murder and it was unnecessary for the jury to decide the exact nature of the brother's participation in the killing. For example, if the jury accepted the Crown's theory that the brothers agreed to hunt down and kill Malone, and that he was killed in furtherance of that plan, both were participants in the murder, regardless of who fired the shot: see R. v. Portillo, [2003] O.J. No. 3030, 176 C.C.C. (3d) 467 (C.A.), at para. 71; R. v. Suzack, [2000] O.J. No. 100, 141 C.C.C. (3d) 449 (C.A.), at paras. 152-156.

[52] On the basis of liability described above, the jury did not have to make a finding as to which brother was the shooter or the aider. The jury still, however, had to consider the case against each appellant separately by reference to the evidence admissible against each appellant.

[53] The failure to delineate the separate bases for liability when describing the elements of the offence of murder was exacerbated by the trial judge's treatment of the defences of self-defence and provocation. He left both defences as available to both appellants and did not distinguish between the two appellants when explaining the defences.

[54] Mato did not advance either the defence of self-defence or provocation. In my view, there was no air of reality to the defence of self-defence as applied to Mato.² It is also doubtful that there was any air of reality to the defence of provocation, as applied to Mato. Both defences were in direct contradiction to the defence Mato advanced in his evidence. He contended that he did not participate in the killing and throughout the events which culminated in Malone's death, he only wanted to go home.

[55] By assigning John's defences to Mato as well as John, the trial judge not only undercut Mato's actual defence, but further linked the fate of both appellants and invited the jurors to reach common verdicts.

[56] The difficulties created by the improper linking of the defences to both appellants are clear in the trial judge's explanation of the elements of self-defence. When instructing the jury on the requirement that the conduct of "John and/or Mato" be reasonable in the circumstances, the trial judge said:

The issue is quite simple: was it reasonable for the accused to shoot Lou Malone in response to the alleged threats of force he had made to John and his family during the previous week; and to them both and their families that night on Robins Avenue, just prior to the first shot being fired? Was it reasonable to continue to chase Lou Malone after the first shot was fired and fire four more times before the fatal shot while he lay on the sidewalk?

You also heard the evidence of John and Mato Josipovic that, in their opinion, the police were not an option with Lou Malone; and their evidence that they felt they had no other option but to do what they did, because if they did not stop Lou Malone, he would get them and their family.

[57] In the first paragraph of the above-quoted passage, the trial judge told the jury to consider the reasonableness of the brothers' conduct as if the various threats and assaults by Malone had been made to both brothers jointly. He also told them to approach the brothers' conduct on the basis that they were acting jointly in the chase that led to the fatal shot. The trial judge's assumption of joint conduct, for the purpose of considering the reasonableness of the appellants' conduct as an element of the self-defence charge, was consistent with the Crown's case, but entirely inconsistent with the evidence presented by the appellants.

[58] In the second paragraph of the above-quoted extract, the trial judge attributed to Mato evidence that he never gave. Mato did not testify that he saw "no other option but to do what they did". To the contrary, Mato testified that there was a clear option -- they could leave. According to him, he urged his brother to leave the area. Once again, the manner in which the trial judge instructed the jury on the elements of the defence of self-defence suggested that both brothers were jointly advancing that defence. They were not.

[59] In fairness to the trial judge, near the end of his instructions, he fairly and thoroughly set out the individual positions of the appellants. I am not satisfied, however, that his instructions in respect of the defence arguments would overcome the very strong impression created by the rest of his instructions that the appellants stood or fell together on the murder charge.

[60] The trial judge also presented the appellants as a unit rather than as individuals when explaining the operation of the burden of proof to the evidence of an accused as described in R. v. W. (D.), [1991] 1 S.C.R. 742. The trial judge told the jury:

If you accept the evidence of John and Mato Josipovic in this case, then you must find them not guilty. Even if you do not necessarily accept their evidence, but conclude that it leaves you with a reasonable doubt, you must find them not guilty. Thirdly, even if you reject their evidence, you must still go on and decide whether on the basis of the evidence you do accept, has the Crown proven their guilt beyond a reasonable doubt?

(Emphasis added)

[61] The trial judge repeated this instruction, as applied specifically to self-defence, later in his instructions:

I repeat this instruction to you: If you accept the evidence about self-defence of John and Mato Josipovic in this case, then you must find them not guilty. Even if you do not necessarily accept their evidence, but conclude that it leaves you with reasonable doubt, then you must find them not guilty. Thirdly, even if you reject their self-defence evidence, you must still go on and decide if, on the basis of the evidence that you do accept, has the Crown proven their guilt beyond a reasonable doubt?

[62] The jury was not required to accept the evidence of both appellants to acquit either. Nor was the jury required to have a doubt about the evidence of both appellants to acquit either. For example, if Mato's evidence left the jury with a reasonable doubt about his participation in the homicide, he was entitled to an acquittal, regardless of what the jury made of John's evidence. The trial judge wrongly collapsed what should have been separate W. (D.) instructions applicable to each appellant into a single instruction clearly suggesting to the jury that the reasonable doubt standard should be applied to the appellants' evidence considered together.³

[63] The trial judge's instructions on the use the jury could make of the after-the-fact conduct also improperly presented the appellants as a single entity. He referred to the after-the-fact conduct (summarized above, at paras. 33-35) as "things that John and/or Mato are alleged to have done". The trial judge proceeded to accurately review the evidence and then said:

You may use this evidence, along with all the other evidence in this case, in deciding whether the Crown has proven John and/or Mato Josipovic's guilt beyond a reasonable doubt. However, you must not infer John and/or Mato Josipovic's guilt from this evidence unless, when you consider it along with all the other evidence, you are satisfied that it is consistent with their guilt and is inconsistent with any other reasonable conclusion.

[64] Assuming, without deciding that the after-the-fact conduct had some probative value on a live issue at trial as against John, it could not assist the jury in respect of the case against Mato. There was simply no evidence that he had anything to do with the fire, the removal of the toolbox from the back of John's truck, or the disposal of the shotgun by John. The argument that, because there was evidence that John and Mato acted in concert in killing Malone, it could be inferred that the common design extended to the destruction of the evidence, thereby making the destruction of the evidence admissible as evidence of joint involvement in the killing, suffers from a fatal circularity. In my view, unless there was evidence that Mato was somehow involved in, or at least had knowledge of, his brother's after-the-fact conduct, no inferences against Mato could be drawn from that evidence.⁴

[65] The trial judge should have told the jury that the after-the-fact conduct evidence had no relevance to Mato's liability. Instead, he continued to link the appellants by inviting the jury to consider evidence of after-the-fact conduct against both appellants, even though it had no application to Mato.

B. The Instructions on Liability as an Aider

[66] I have canvassed the instructions on aiding to some extent in my analysis of the first ground of appeal. I have explained that in outlining the essential elements of the crime of murder, the trial judge should have separately described those elements as they applied to the shooter and to the helper. As articulated in R. v. Huard, 2013 ONCA 650, [2013] O.J. No. 4912, at para. 64:

Since the actus reus and mens rea of aiding and abetting are different from the corresponding elements of the principal offence, jury instructions in a case in which an accused is alleged to have participated in the commission of an offence as an aider or an abettor should not only explain the essential elements in aiding or abetting, but should also link those elements to the essential elements of the offence charged, so that the jury understands what the Crown must prove to establish an accused's liability for the specific offence as an aider or an abettor.

[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.

[68] The decision trees provided to the jury for each appellant to assist them in their deliberations also described liability exclusively from the perspective of the perpetrator. They could provide no assistance to the jury when considering liability as an aider.

[69] Mato's counsel at trial submitted that the decision trees should also explain liability as an aider. The trial judge declined to do so as he was of the view that:

If they are parties, either joint or aiders, then it's going to be the same answer on both decision trees. If they are acting separately, it may be different answers on each decision tree.

[70] A decision tree expressly outlining the route to liability as an aider could well have been helpful to the jury. The trial judge was wrong in suggesting that an aider's liability must be the same as the perpetrator.

[71] As it turns out, the jury asked a question about liability as an aider and the use of the decision tree. Counsel for Mato submitted that the jury should be told that the aider was not necessarily guilty of the same offence as the shooter. The trial judge disagreed. He told the jury:

If you are satisfied beyond a reasonable doubt that one defendant aided the other defendant, as explained to you in section 20 of my charge, then whatever decision you make with regard to the defendant who is not the aider applies equally to the aider.

[72] An aider is not necessarily guilty of the same offence as the perpetrator. An aider may not know that the perpetrator intends to commit murder. In that case, the aider is guilty of manslaughter, even if the perpetrator is guilty of murder: see R. v. Jackson, [1993] 4 S.C.R. 573, at pp. 581-83 S.C.R.; R. v. Chambers, 2016 ONCA 684, [2016] O.J. No. 4802, at para. 66.

[73] The trial judge should have left manslaughter with the jury as a possible verdict in respect of the aider. I do not think, however, that, standing alone, this non-direction would vitiate the convictions for second degree murder. On this evidence, it is very doubtful that if the jury was satisfied that one of the brothers aided the other in the killing, the jury would have had a doubt as to whether the aider knew that the shooter, who was chasing Malone through the streets for three or four minutes, firing several shots at him, had the intention to kill Malone.

[73] The failure to leave manslaughter as a possible verdict with respect to the aider does, however, add further fuel to the appellants' claim that the trial judge treated the appellants as a single unit for the purposes of the instructions, and implicitly invited the jury to return the same verdicts with respect to each appellant.

V. Conclusion

[75] The curative proviso cannot be applied to the legal errors described above. While it is fair to characterize the case against both appellants as formidable, the errors in the trial judge's instructions are not minor or insignificant: see Zoldi, at para. 53.

[76] Considered cumulatively, the errors resulted in a significant disconnect between the manner in which the trial judge presented the case to the jury and the narrative revealed by the evidence. I think there was a very real risk that the jury would approach the liability of the brothers jointly, premised on instructions which focused almost exclusively on the legal liability of the perpetrator and erroneously presented the appellants as potential co-perpetrators.

[77] I would allow the appeal, quash the convictions and order a new trial for both appellants on the charge of second degree murder.

Appeal allowed.

Notes

¹ Mato is sometimes referred to as "Mike".

² There is also a strong argument that there was no air of reality to the defence of self-defence as it applied to John. The Crown, however, argues only that the defence should not have been left in respect of Mato. As I would order a new trial, it will be for the trial judge at the new trial to determine whether there is an air of reality to John's self-defence claim: see R. v. Phillips, 2017 ONCA 752, [2017] O.J. No. 5022, at para. 98; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 130 (per Binnie J. concurring).

³ Because the defences of provocation and self-defence both have an objective/subjective component, the usual W. (D.) instruction would have to be modified: see R. v. Sadiqi, 2013 ONCA 250, [2013] O.J. No. 1796, at para. 21; R. v. Reynolds, 2013 ONCA 433, [2013] O.J. No. 2933, at para. 9; R. v. Reid, 65 O.R. (3d) 723, at paras. 72-73.

⁴ The Crown does not argue that the after-the-fact conduct of John could be admissible against Mato as conduct in furtherance of the agreement to kill Malone: see R. v. Baron and Wertman, 14 O.R. (2d) 173, at pp. 197-99 O.R.

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