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PROCEDURE - Trial judge’s duties - Charge or direction - Intent

Wednesday, September 18, 2019 @ 6:25 AM  

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Appeal by the accused J and M, brothers, from convictions for second degree murder. The victim, a gang member, was shot. The Crown argued that the appellants agreed shortly before the shooting that they would hunt down and kill the victim. They found him and chased him in J’s truck for several minutes, firing several shots. J admitted killing the victim and claimed that M had nothing to do with the killing. M testified that he had nothing to do with the shooting. At the time of the murder, the victim was trying to extort money from J and threatened his family. M knew nothing about the attempt to extort J and the threats against J and his family. Both appellants argued that the trial judge’s instructions read as a whole conflated the positions advanced by the appellants into a single defence position. This effectively treated the appellants as a single entity for the purposes of the jury’s deliberations thereby seriously undermining 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. M also argued 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.

HELD: Appeal allowed. The repeated use of the formulation J and/or M gave the instruction a tone which suggested to some extent that the cases for and against the two brothers stood or fell together. By leaving it open to the jury to conclude that J and M caused the victim’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 J and M together. The trial judge should have told the jury that they must first decide whether the Crown proved the identity of the shooter beyond a reasonable doubt. The jury should have been told to next consider the liability of the non-shooter as an aider or abettor. The way 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. 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 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. The trial judge should have separately described those elements of the offence of murder as they applied to the shooter and to the helper. 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. The trial judge not only undercut M’s actual defence, but further linked the fate of both appellants and invited the jurors to reach common verdicts. 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 even though it had no application to M. Although the trial judge referred to aiding while discussing the elements of the offence, he never explained what the Crown had to prove to establish liability for murder as an aider. The trial judge was wrong in suggesting that an aider’s liability must be the same as the perpetrator. The trial judge should have left manslaughter with the jury as a possible verdict in respect of the aider.

R. v. Josipovic, [2019] O.J. No. 3971, Ontario Court of Appeal, D.H. Doherty, C.W. Hourigan and A.L. Harvison Young JJ.A., July 31, 2019. Digest No. TLD-September162019009