



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zoldi, 2018 ONCA 384

DATE: 20180419

DOCKET: C54289

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Zoldi

Appellant

Lance C. Beechener and Alexander M. Ostroff, for the
    appellant

Shawn Porter, for the respondent

Heard: January 11, 2018

On appeal from the conviction entered by Justice Bruce G.
    Thomas of the Superior Court of Justice, sitting with a jury, on May 7, 2011.

Fairburn J.A.:

A.

OVERVIEW

[1]

Richard Zoldi and Shane Huard were charged in the first degree murder of
    Troy Hutchinson. The appellant discharged his counsel after the first
    prosecution ended in a mistrial. This led to the Crown severing the accused.
    Huards trial proceeded first, followed by the appellants trial.
[1]
This appeal is from the appellants conviction for second degree murder.

[2]

The appellant advanced what are said to be four errors in the jury
    charge. He pursued two errors in oral argument, but focused on what he claims
    is an error in the charge relating to the
mens rea
for aiding or
    abetting murder. For the reasons that follow, despite an otherwise very well-organized
    and coherent charge, the jury was misdirected on the required state of mind for
    an aider or abettor to murder. As this is not an appropriate case in which to apply
    the curative proviso and a new trial is required, there is no need to address
    the other issues.

B.

BACKGROUND FACTS

[3]

On August 24, 2006, the appellant, Huard, and a third man tried to rob
    some local drug dealers. Things did not go as expected and the appellant
    suffered a stab wound to his shoulder.

[4]

Two days later, one of Huards neighbours left a .22 calibre Browning
    semi-automatic handgun at Huards residence. When the neighbour returned to
    Huards apartment later in the day, the appellant and Huard were present, but
    the gun was not. Shortly after denying knowledge of the guns whereabouts, Huard
    and the appellant were seen leaving Huards apartment with the appellant toting
    a bag in hand.

[5]

Susan Sladic used to purchase drugs from the man who stabbed the
    appellant. She was originally charged with Hutchinsons murder, but that charge
    had been withdrawn by the time of trial. She testified that in the lead up to the
    events resulting in Hutchinsons death, the appellant pointed a handgun at her
    and demanded that she set up a drug deal with the man whom the appellant thought
    was responsible for stabbing him. Sladic knew that the drug deal was a ruse to
    give the appellant access to that man. When Sladic made the call, another man named
    Hutchinson answered the phone. Hutchinson said that he would deliver the drugs.
    Although Sladic informed the appellant that Hutchinson would be doing the
    delivery, the appellant wanted to go ahead anyway. Sladic maintained that she thought
    that the appellant and Huard were only going to bust kneecaps.

[6]

The appellant, Huard, Sladic and two others drove to the meeting spot. Huard
    told Sladic to stay quiet and said: You aint seen nothin so dont say nothin.
    She saw the appellant put on a glove.

[7]

Hutchinson was shot in the stomach at close range. No one saw who shot
    him. Numerous witnesses saw two white males at the scene of the shooting, but were
    able to provide only very general descriptions of the males. After a shot was
    heard, Hutchinson called out murder and fell to the ground. The men were then
    seen assaulting Hutchinson, going through his pockets and running away.

[8]

The gun, a glove and a t-shirt were found close to the scene. The glove
    and t-shirt contained gunshot residue. Sladic could not identify the glove as
    the one she had seen the appellant place on his hand. The t-shirt contained the
    appellants DNA profile. As for the gun, it matched the description given by
    the man who had left the gun at Huards apartment. Not long after the shooting,
    the appellant told someone that they had got in a fight with somebody, beat
    someones ass.

C.

ANALYSIS

(i)


Trial
Counsels Positions on Aiding and Abetting

[9]

Throughout the appellants trial, the Crown (not Mr. Porter) was
    unwavering in the theory that the appellant was the actual shooter. Despite this
    position, the Crown insisted that, in addition to instructing the jury on the
    appellants potential liability as the principal actor, the jury should also
    receive instructions on aiding and abetting as possible ways in which the
    appellant participated in the crime.

[10]

At
    the outset of the pre-charge conference, the trial judge expressed some
    reservations about the Crowns position and asked the parties for input. Crown
    counsel expressed the view that because there was no direct evidence as to
    whether Zoldi or Huard had shot Hutchinson, the trial judge was duty bound to
    instruct the jury on principal actor, aiding and abetting routes to liability.
    As the trial Crown put it, I think the law requires you to.

[11]

Although
    the defence initially took the position that there was no air of reality to aiding
    or abetting, this position changed after some discussion during the pre-charge
    conference. In the end, all counsel agreed that aiding and abetting should be
    left for the jurys consideration. Counsel were provided with the opportunity
    to review the draft charge on those modes of participation. There were no
    objections to the instructions on aiding and abetting before, during or after
    the charge was delivered.

(ii)

The
Objection
on Appeal

[12]

The
    appellant maintains that the charge left an unconstitutional path to conviction
    arising from the failure to correctly instruct the jury on an aider or
    abettors knowledge of the principal actors intention for murder.
    Specifically, the appellant alleges that the instructions failed to impart to
    the jury that an aider or abettor to murder must know that the principal actor
    has subjective foresight of death. The appellant argues that this error was
    repeated on multiple occasions. He places particular emphasis on what he says
    was the culminating error, an incorrect answer to the jurys final question, a
    question that demonstrated confusion by the jury on the very point that is said
    to constitute reversible error.

[13]

Crown
    counsel fairly acknowledges that the charge contains the alleged erroneous instructions.
    However, Crown counsel encourages the court to read the charge as a whole. Viewed
    in context, and against the backdrop of the entire trial, the Crown submits that
    the jury would have properly understood what the Crown had to prove beyond a
    reasonable doubt in order to establish the appellants state of mind as an
    aider or abettor to murder.  Alternatively, even if the jury was labouring
    under a misapprehension as to the correct legal standard, the case against the
    appellant on second degree murder was so formidable that the curative proviso
    should apply to uphold the conviction.

(iii)

General
Structure
of the Charge

[14]

The
    trial judge was faced with a difficult task in charging the jury. He had to
    address multiple challenging issues, including providing directions on how to
    approach the evidence of highly unsavoury witnesses, post-offence conduct,
    continuity, expert and eyewitness identification evidence. The trial judge did
    an impressive job at bringing together a concise, comprehensive, yet
    comprehensible charge. Unfortunately, the charge took on an added layer of
    complexity when the appellants potential liability as an aider or abetter to
    the murder was placed into the mix.

[15]

Section
    21(1) of the
Criminal Code
provides for three modes of participation
    in a crime. Section 21(1)(a) governs principal parties: those who actually
    commit the crime. Sections 21(1)(b) and (c) govern aiders and abettors
    respectively. Those who help, through acts or omissions, or encourage others to
    commit crimes, may also be guilty of those crimes. Although different
    considerations are taken into account when assessing liability under the
    different modes of participation, principals, aiders, and abettors are equally
    culpable at law:
R. v. Briscoe,
2010 SCC 13, [2010] 1 S.C.R. 411, at
    para. 13.

[16]

About
    halfway through the charge, the trial judge introduced the different modes of
    participation. Two different decision trees were provided to the jury to look
    at as the modes were discussed, the first tree dealing with principals and the second
    with aiders and abettors.

[17]

The
    jury was first instructed on principal actor liability for murder, the form of
    liability that accorded with the Crowns theory that the appellant was the
    actual shooter. Under s. 229(a) of the
Criminal Code,
a person who commits
    murder as a principal actor must either (i) mean to cause death or (ii) mean to
    cause bodily harm knowing that it is likely to cause death, and be reckless
    whether death ensues.

[18]

The
    state of mind under s. 229(a)(i) is straightforward: did the person intend to
    cause death? The state of mind under s. 229(a)(ii) involves a somewhat more
    nuanced inquiry, involving three components: intent, knowledge, and
    recklessness. The questions are, did the principal actor: (a) intend to cause
    bodily harm; (b) know that the bodily harm would likely be fatal; and (c) show
    recklessness as to whether the victim died:
R. v. Moo,
2009 ONCA 645,
    247 C.C.C. (3d) 34, at para. 45.

[19]

Proof
    beyond a reasonable doubt of the subjective foresight of death was raised to
    the level of a constitutional requirement in
R. v. Martineau,
[1990] 2
    S.C.R. 633, at p. 646. The intention under s. 229(a)(ii) must be to cause
    bodily harm that is so grave and serious that the person inflicting the harm
knows
that the harm will likely kill the victim:
Moo,
at para. 46. Requiring
    subjective foresight of death ensures that the principal actors moral
    responsibility is commensurate to the serious stigma and life sentence attaching
    to a murder conviction:
Martineau,
at p. 646.  Accordingly, the
    principal actor must have subjective intent to cause bodily harm and subjective
    knowledge that the harm is of a nature that is likely to result in death:
R.
    v. Cooper,
[1993] 1 S.C.R. 146, at p. 155. Recklessness merely involves
    having a deliberate disregard for the death that the appellant knows is likely
    to result from his actions.

[20]

It
    is agreed that the instructions pertaining to the
mens rea
for the
    actual shooter  the principal actor  were generally correct.
[2]
After instructing the jury on this mode of participation, the trial judge moved
    on to aiders and abettors under ss. 21(1)(b) and (c). It is here that the trial
    judge is said to have erroneously dropped the need for the aider or abettors
    knowledge of the principals subjective foresight of death.

(iv)

The
Impugned
Instructions on Aiding
    and Abetting

[21]

The
    instructions on aiding and abetting commenced with reference to the second decision
    tree. The first box on the decision tree focuses on the
actus reus
for
    aiding and abetting, often referred to as the conduct component:
R. v.
    Maciel,
2007 ONCA 196, 219 C.C.C. (3d) 516, at paras. 86-87. To fulfill this
    requirement, an aider must do or omit to do something that assists the
    principal in committing the offence and an abettor must encourage the principal
    to do so.

[22]

The
    jurors were instructed that if they determined that the conduct component was
    met, then they would move on to consider the
mens rea
for an aider or
    abettor to murder, often referred to as the fault component:
Maciel,
at
    paras. 86-87. An aider or abettor must have both knowledge and intention. He or
    she must know that the principal actor intends to commit the offence and must
    intend to assist or encourage the principal actor in committing it:
Briscoe,
at paras. 16-17;
Huard,
at para. 63. Accordingly, as noted in
Briscoe,
at para. 18, the aider or abettor must be:

armed with
knowledge
of the perpetrators intention
    to commit the crime, [and act] with [the]
intention
of assisting the perpetrator in its commission. It is only in this sense that
    it can be said that the aider and abettor must intend that the principal
    offence be committed. [Italics in original, underline added.]

[23]

Requiring
    that an aider or abettor know the principals intention under s. 229(a)(i) or
    (ii), including knowledge of the subjective foresight of death under s.
    229(a)(ii), ensures that murder convictions do not flow to aiders and abettors
    where there is diminished moral responsibility.

[24]

The
    second box on the aiding and abetting decision tree dealt with the required
    mental state for this mode of participation. It posed the following problematic
    question:

That when ZOLDI did the act
    that helped or encouraged HUARD to commit the unlawful act that caused the
    death of the deceased, did ZOLDI:

(a)know that HUARD intended to kill the
    deceased, or
intended to cause him bodily harm likely to result in death,
and be reckless whether he died or not?  [Emphasis added.]

[25]

The
    appellant maintains that the question is flawed because it drops reference to
    the need for the aider or abettor to know that the principal actor  Huard 
    had the constitutionally required intention for murder under s. 229(a)(ii):
    subjective foresight of death. More specifically, the appellant submits that
    the question should have emphasized Huards foresight of death in the following
    way: Know that Huard intended to kill the deceased, or intended to cause [the
    deceased] bodily harm that Huard
knew
was likely to result in death
    .

[26]

The
    accompanying jury instructions are said to have aggravated the error. Although
    on a couple of occasions the
mens rea
was correctly stated, on at
    least seven occasions there was no reference to the need for the appellant to
    know that Huard knew that the bodily harm

would likely result in
    death. The following examples from the charge illustrate the objection on
    appeal:

Crown counsel must prove beyond a reasonable doubt that Richard
    Zoldi knew Shane Huard intended to kill Hutchinson
or cause him bodily harm
    likely to result in death
and be reckless whether death ensued and that
    Richard Zoldi intended to help Huard do so.

If  you are not satisfied beyond a reasonable doubt that
    Richard Zoldi knew that Shane Huard intended to kill Troy Hutchinson or
cause
    him bodily harm likely to result in death
, and was reckless whether death
    ensued or not, and that Richard Zoldi intended to help Huard do so, you must
    find him not guilty of second degree murder . [Emphasis added.]

[27]

Although
    knowledge of Huards intention under s. 229(a)(i) was properly described,
    knowledge of Huards intention under s. 229(a)(ii) was not. While there are multiple
    ways in which it could have been conveyed in the charge, the jury needed to
    understand that in order to have the required mental state as an aider or
    abettor to Hutchinsons murder, the Crown had to prove beyond a reasonable
    doubt that the appellant: (a)
knew
either (i) that Huard intended to
    cause Hutchinsons death or (ii) that
Huard meant to cause Hutchinson
    bodily harm that Huard knew was likely to cause Hutchinsons death
and be
    reckless whether death ensued or not; and (b) intended to help or encourage
    Huard in committing Hutchinsons murder.

[28]

When
    considering the impugned passages in isolation, Crown counsel acknowledges the
    error as alleged. This is a reasonable concession. By omitting reference to
    knowledge of Huards foresight of death, the challenged instructions conveyed
    to the jury that the required state of mind as an aider or abettor to murder could
    be based upon knowledge that Huard intended to cause bodily harm that would be
    objectively likely to result in Hutchinsons death.

[29]

This
    impugned language tracks almost exactly the impugned language in
R. v.
    McIntyre,
2012 ONCA 356, 291 O.A.C. 359, where this court ordered a new
    trial.  As
McIntyre
was decided after the jury charge was given in
    this case, the trial judge did not have the benefit of this courts reasoning. As
    noted in
McIntyre,
at para. 20, the error in the
mens rea
component
    of aiding and abetting laid out a roadmap to convict the appellant of aiding
    or abetting [the principal] to murder the deceased that did not require the
    jury to find that [the principal] had the subjective intention required for
    murder.

(v)

Do the
Erroneous
Instructions Constitute
    Misdirection?

[30]

Although
    Crown counsel does not shirk from the flawed aspects of the charge relating to
    the state of mind for an aider or abettor to murder, and acknowledges the significant
    symmetry between the instructions in
McIntyre
and this case, he
    maintains that
McIntyre
is distinguishable.

[31]

First,
    Crown counsel argues that the flawed
McIntyre
instruction is different
    in that the jury was instructed that the Crown must prove that the appellant
    knew that the principal intended to cause [the deceased] bodily harm that
    would likely kill [the deceased] . Crown counsel maintains that the instruction
    in this case, that the appellant had to know that Huard intended to cause [the
    deceased] bodily harm likely to result in death , uses a more active voice. Although
    there is a slight difference between how the
mens rea
for an aider or
    abettor was

conveyed in
McIntyre
and this case, neither instruction
    included reference to the requirement that the party must know about the
    principals actual foresight of death.

[32]

Second,
    Crown counsel makes the important observation that the
McIntyre
jury
    was only instructed on aiding and abetting. In contrast to
McIntyre
,
    the jury in this case also received instructions relating to principal actor
    liability. Not only were those instructions largely correct, but, the trial
    judge told the jury that they should think about those instructions whenever
    he spoke of the mental element or intention necessary to commit murder. Accordingly,
    Crown counsel maintains that the impact of the impugned aiding and abetting instructions
    was softened by the correct
mens rea
instructions given in the context
    of discussing principal actor liability.

[33]

Although
    different parts of a charge may convey different descriptions of the
    requirements of s. 229(a)(ii), the ultimate question is whether, having regard
    to the charge as a whole, the jury would have understood the correct legal test
    to apply:
R. v. Rodgerson,
2014 ONCA 366, 309 C.C.C. (3d) 535,

at
    paras. 22-26. See also:
R. v. Daley,
2007 SCC 53, [2007] 3 S.C.R. 523,
    at paras. 30-31. In other words, not every misinstruction amounts to a misdirection.

[34]

To
    determine the effect of a misinstruction, the charge must be considered as a
    whole and against the contextual backdrop of the entire trial. Having engaged
    in this exercise, I do not agree that the jury would have understood the
    correct legal principles to apply in considering whether the appellant was an
    aider or abettor to murder. I say this for three reasons: (a) the structure of
    the charge; (b) the definition given to recklessness; and (c) the answer given
    to the jurys final question.

(a)

The
    Structure of the Charge

[35]

The
    structure of the charge discouraged the jury from considering the legal
    principles applicable to principal actors, when considering aiders and
    abettors.

[36]

The
    trial judge delivered his instructions within very specific participation
    silos. The jury was instructed that two decision trees were being provided, one
    for principals and the other for aiders and abettors. The jury was told that
    this was being done because [t]he analysis is different. With reference to
    the applicable decision tree, the trial judge then delivered his instructions
    on principal actor liability, followed by aiding and abetting liability.

[37]

Given
    the structure of the charge, I am not satisfied that the jury would have
    transferred the
mens rea
for a principal actor into their
    deliberations regarding the mental state for an aider or abettor to murder. To
    be clear, the trial judge was right to tell the jury that the analysis between
    the modes of participation was different. Having had the required different
    analysis highlighted for them, though, the jury may have thought that, in the
    context of aiding and abetting, the absence of knowledge of the principals subjective
    foresight of death was by design.

(b)

The
    Definition Provided for Reckless Whether Death Ensues or Not

[38]

Even
    if the jury thought that the instruction on the mental element for a principal
    was transportable to the aiding and abetting context, there was a misstep in the
    definition provided for the words reckless whether death ensues or not in s.
    229(a)(ii).  This definitional misstep served to aggravate the deficiency in
    the mental element for aiding and abetting.

[39]

Recklessness
    under s. 229(a)(ii) was only defined once in the charge: [f]or your purposes
    reckless means that Richard Zoldi saw the
risk
that Troy Hutchinson
could
die from the injury to be inflicted upon him but he went ahead anyway and took
    the chance (emphasis added). The parties agree that this definition is
    incorrect.

[40]

The
    recklessness component within s. 229(a)(ii) requires proof of knowledge that death
    will
likely
result and a deliberate disregard for this consequence by
    going ahead anyway:
R. v. MacDonald,
2008 ONCA 572, 236 C.C.C. (3d)
    269,

at para. 46, 47, 49;
Moo,
at paras. 63-65. Defining the
    recklessness component within s. 229(a)(ii) as it was in this case, as a risk
    that death could ensue, creates a danger that the jury may proceed on the basis
    of something less than subjective foresight of death:
MacDonald,
at
    para. 46.

[41]

This
    erroneous instruction is not uncommon and iterations of it have been given in
    various charges:
R. v. Czibulka
(2004), 189 C.C.C. (3d) 199 (Ont.
    C.A.), at paras. 66-68, leave to appeal refused, [2004] S.C.C.A. No. 502;
Moo
,
    at paras.
54-55, 63-65;
R. v. Patterson
(2006), 205
    C.C.C. (3d) 171 (Ont. C.A.), at paras.
36, 52. Standing alone, the error
    has rarely proved fatal because it is typically accompanied by a proper instruction
    relating to the need for subjective foresight of death. When accompanied by a
    proper instruction relating to the intention and knowledge components of s.
    229(a)(ii)  intention to cause bodily harm knowing that the bodily harm will
    likely be fatal  there is less risk that a jury will be misled by recklessness
    being erroneously defined.

[42]

Once
    the Crown establishes the principals intention to cause such grave and serious
    bodily harm that he knows it is likely to result in death, recklessness follows
    as almost a matter of course:
R. v. Nygaard
, [1989] 2 S.C.R. 1074, at
    p. 1088. See also:
Cooper
, at p. 154-155;
Rodgerson
, at para.
    23, aff'd on other grounds, 2015 SCC 38, [2015] 2 S.C.R. 760;
Moo
,
    at para. 63. This is why being reckless whether death ensues or not is often
    referred to as an afterthought.

[43]

If
    the misstep in the definition of recklessness was the only difficulty in
    relation to the instructions regarding the required mental state for murder, it
    may well have been inconsequential to the result of this case. The difficulty
    is that, in the context of aiding and abetting, the error in the definition of
    recklessness was not lessened by a correct instruction regarding the
    appellants need to know Huards subjective foresight of death. Instead the
    definitional error only served to compound the deficiency in the instructions.

(c)

The
    Jurys Final Question

[44]

The
    final jury question, and answer provided, also sheds light on this issue.

[45]

The
    jury deliberated for almost two full days. In response to the first number of
    questions, the jury received correct instructions about the
mens rea
for
    a principal actor. In their final question, question five, the jury asked about
    decision tree two  the aiding and abetting tree. As the jury had been earlier instructed
    that they should only consider decision tree two if they had failed to reach a unanimous
    verdict of guilty as a principal to first degree murder, the question conveyed
    that at least one juror had a reasonable doubt that the appellant was the shooter
    in a first degree murder.

[46]

The
    jurys question was directed at boxes two and three on decision tree two, the
    boxes pertaining to state of mind and planning and deliberation. The jury
    asked:

Tree 2

Box 2 v.s. Box 3

- what is the difference b/w knew Huard intended to kill/cause
    bodily harm likely to result in death

and

- knew Huard intended to commit planned & deliberate murder

is this a distinction b/w the 2 definitions of what constitutes
    murder?

ie Intent to kill

vs.

intent to cause bodily harm

or is it a distinction b/w planned
    & deliberate murder?

[47]

Notably,
    the question fails to refer to the need for Huards subjective foresight of
    death: what is the difference b/w knew Huard intended to kill/
cause bodily
    harm likely to result in death
, reinforcing the view that the jury was
    very possibly, if not likely, deliberating under a misapprehension about
    whether the appellants knowledge of Huards subjective foresight of death was
    required.

[48]

The
    trial judge started answering the question by repeating the content of box two
    on the aiding and abetting decision tree, which erroneous content has been previously
    discussed. Then, the jury was instructed as follows:

If you find that in fact Richard Zoldi when he aided or abetted
    Shane Huard to cause the death of Troy Hutchinson
knew
that Huard
    intended to kill the deceased or
intended to cause him that serious bodily
    harm with recklessness
and knew and intended to help Shane Huard do that,
    then Richard Zoldi would be guilty of second degree murder.

[instruction on planning and deliberation]

So let me back up a little bit and tell you again this. If,
    when Richard Zoldi did the act that helped or encouraged Shane Huard to commit
    the unlawful act that caused the death of the deceased,
Richard Zoldi
    either did not know that Huard intended to
kill the deceased or
cause
    him that

serious bodily [harm]
or did not intend to help or
    encourage Huard to do so, hes guilty of manslaughter and not murder. [Emphasis
    added.]

[49]

This
    answer allowed the jury to convict the appellant as an aider or abettor to
    murder, without a finding that the appellant knew that Huard had the subjective
    intention for murder. This difficulty was magnified by virtue of the earlier
    instruction provided for the meaning of recklessness.

[50]

Jury
    questions demonstrate that the jury is struggling with something and that they
    require direction. The answer to such questions must provide correct legal
    assistance. As noted by Cory J. in
R. v. S.(W.D.),
[1994] 3 S.C.R.
    521, at p. 530: The jury has said in effect, on this issue there is confusion,
    please help us. That help must be provided. See also:
R. v. Austin
(2006),
    214 C.C.C. (3d) 38 (Ont. C.A.), at para. 15.

[51]

The
    jury was demonstrating some confusion. They needed assistance. Unfortunately,
    the answer served to repeat the error that had already been repeated on
    multiple occasions in the charge. In the end, read in the context of the entire
    charge, I am not satisfied that the jury properly understood the knowledge
    component of the mental element for an aider or abettor to murder.

(vi)

The
Curative
Proviso

[52]

Crown
    counsel maintains that, even if this court concludes that the jury instructions
    were in error, the conviction should be upheld under the curative proviso, s.
    686(1)(b)(iii) of the
Criminal Code
,

which states that an
    appeal may be dismissed when, notwithstanding an error of law, the court is of
    the opinion that  no substantial wrong or miscarriage of justice has
    occurred.

[53]

The
    curative proviso applies where errors are so minor, harmless or insignificant,
    that they could not have affected the verdict. Equally, convictions may be
    upheld where, while serious, the errors do not give rise to a miscarriage of
    justice because the case against the accused is so overwhelming that a
    conviction would have been inevitable:
R. v. Van,
2009 SCC 22, [2009]
    1 S.C.R. 716, at paras. 35-36;
R. v. Jaw,
2009 SCC 42, [2009] 3 S.C.R.
    26, at para. 42. Crown counsel draws on the second category for the application
    of the curative proviso, claiming that this was an overwhelming case of second-degree
    murder as a principal party and, accordingly, that the conviction should be
    maintained.

[54]

I
    accept that the case against the appellant as the shooter was a strong one. The
    appellant had the motive; he asked for the meeting to take place (albeit with
    the man who had stabbed him two days earlier); the appellant was carrying the
    bag that may have contained the gun when he and Huard left Huards apartment;
    the appellant pointed a gun at Sladic; his DNA was found on the t-shirt close
    to where Hutchinson was shot, a t-shirt that also had gunshot residue on it. And,
    if the appellant was the shooter, then it seems self-evident that when he shot
    Hutchinson at close range in the stomach, he had the intention for murder,
    specifically, the intention to kill.

[55]

The
    difficulty with applying the curative proviso on the theory of principal
    liability, though, is that this is one of those rare cases where we know that
    the jury actually considered the appellants liability as an aider or abettor. 
    The jury was instructed not to consider aiding and abetting unless there was a
    lack of unanimity regarding the appellant as a principal to the first degree
    murder of Hutchinson. The fifth and last question that the jury asked before
    convicting was rooted directly in aiding and abetting, meaning that at least
    one juror was not satisfied beyond a reasonable doubt that the appellant was
    the shooter in a planned and deliberate murder.

[56]

Crown
    counsel attempts to blunt the force of question five. He does so by reminding
    the court that the jury was instructed that anything short of unanimity on
    first degree murder required that they consider aiding and abetting. Based upon
    this instruction, Crown counsel maintains that the jury may have found the
    appellant guilty as a principal to second degree murder and only moved over to
    consider aiding and abetting because one or more jurors had a reasonable doubt
    about him being a principal to a planned and deliberate first degree murder.
[3]


[57]

The
    fact is that we do not know why the jury moved on to consider aiding and
    abetting. Bearing in mind the question asked, it cannot be said with any level
    of confidence that the jury only moved on to decision tree two because a juror
    or jurors had a reasonable doubt on planning and deliberation. Question five is
    simply too nebulous in nature. It could mean that the jury was having
    difficulty with the mental element for an aider or abettor, or difficulty with
    planning and deliberation for an aider or abettor, or both. It would be at best
    speculative to try and figure out why the jury was considering aiding and
    abetting.

[58]

Staying
    with what is certain, if the jury followed the trial judges instructions, an
    assumption that I proceed upon, they considered the appellants liability as an
    aider or abettor. In these circumstances, it cannot be concluded that a
    conviction was inevitable.

[59]

While
    it is a reasonable inference that, even as an aider or abettor, the appellant
    knew a gun was being brought to the scene, this would not necessarily mean that
    he knew Huard had the intention to kill or cause bodily harm that Huard knew was
    likely to result in death. Nor is it clear that, as an aider or abettor, the
    appellant intended to help or encourage a murder. In this regard, I note
    Sladics evidence about her conversation with the appellant prior to attending
    at the scene. He only made mention of kneecaps. She understood the appellant
    to mean that he was gonna bust [Hutchinsons] kneecaps. This evidence could
    have raised a doubt about what the appellant knew was going to occur and what
    he intended to happen. If Huard was the shooter, Huards intention for murder
    could have been formed quickly, after arrival at the scene and without the
    appellants knowledge.

[60]

I
    am not satisfied that the case against the appellant as an aider or abettor was
    so overwhelming that any other verdict was impossible to obtain:
Van,
at
    para. 34.

[61]

As
    for the absence of an objection to the charge, although it demonstrates a
    failure to give the trial judge the assistance that he and the administration
    of justice deserved, it does not mean that the error played little to no role
    in the resolution of the trial. Nor can the failure to object be seen as a
    strategic decision on the part of counsel. In the circumstances of this case,
    given the nature of the erroneous instruction, the failure to object does not
    inform the result.

[62]

This
    is not an appropriate case for the application of the curative proviso.

D.

CONCLUSION

[63]

I
    would grant the appeal, quash the conviction for second degree murder, and, as
    the appellant was acquitted of first degree murder, and that acquittal was not
    appealed, order a new trial on second degree murder.

Released: April 19, 2018

Fairburn J.A.

I agree John Laskin
    J.A.

I agree G.T. Trotter
    J.A.





[1]
Huard was convicted of first degree murder:
R. v. Huard,
2013 ONCA 650,
    302 C.C.C. (3d) 469.



[2]
The reference to generally correct relates to a
misstep in
    the definition for recklessness. The impact of this erroneous definition will
    be discussed later.



[3]
The appropriateness of this instruction was not raised on appeal.


