



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stojanovski, 2022 ONCA 172

DATE: 20220301

DOCKET: C67754 & C67755

Lauwers, Paciocco and Thorburn
    JJ.A.

DOCKET: C67754

BETWEEN

Her Majesty the Queen

Respondent

and

Darko Stojanovski

Appellant

DOCKET: C67755

AND BETWEEN

Her
    Majesty the Queen

Respondent

and

Daniel
    Stojanovski

Appellant

Jennifer K. Penman,
    for the appellants

Hannah
    Freeman, for the respondent

Heard: December 8,
    2021

On appeal from the convictions entered
    on May 30, 2018 and the sentences imposed on July 6, 2018 by Justice Tamarin M.
    Dunnet of the Superior Court of Justice, sitting with a jury, with reasons
    reported at 2018 ONSC 4243.

Thorburn J.A.:

INTRODUCTION

[1]

The appellants Darko Stojanovski (Darko) and
    Daniel Stojanovski (Daniel) each appeal their convictions for attempted
    murder. Each also seeks leave to appeal their 18-year sentences. For the
    reasons that follow, I would dismiss the conviction appeals, grant leave to
    appeal the sentences, but dismiss the sentence appeals.

THE EVIDENCE AT TRIAL

[2]

On May 10, 2016, Darko and his twin brother
    Daniel met Nassundu Williams (Nassundu) to purchase marijuana. Darko, Daniel
    and Nassundu had known each other for years.

[3]

Darko and Nassundu began to argue about politics
    and the verbal altercation turned into a physical fight. Both men ended up on
    the ground in the parking lot. They were separated by others but continued to trade
    insults as Darko and Daniel walked back to their vehicle. There were at least seven
    people in the parking lot.

[4]

Moments later, Nassundu was shot in the shoulder
    and then the back in the parking lot.

[5]

Darko and Daniel were both charged with
    attempted murder and discharge of a firearm with the intent to endanger life.

[6]

The central issue at trial was the identity of
    the shooter(s).

[7]

The Crowns theory was that both brothers shot
    Nassundu. The Crowns alternative theory was that Darko aided his brother
    Daniel to shoot Nassundu. The appellants theory was that neither brother shot
    Nassundu and that someone else intervened to shoot him.

[8]

Nassundu
testified that Darko
    and Daniel got into their vehicle after the altercation and pulled out of the
    parking spot. The vehicle then stopped. Nassundu said that the passenger side
    of the vehicle was closest to him and that Darko occupied the passenger seat. Daniel,
    whom
Nassundu
identified as the
    driver, stood over the car, while Darko rolled down the window and pointed a
    gun from the passenger seat. Nassundu said he believed that both brothers shot
    at him, but he was not sure if they shot at him with two guns, or if Darko shot
    first and then passed the gun to Daniel, who continued to shoot at him. Nassundu
    said the firearm looked like a 9 mm or police gun.

[9]

Nassundus friend Junior Bailey (Junior) was
    also present at the scene.
His testimony at the
    preliminary inquiry, which was entered into evidence at trial, was that after
    the group separated them, the white guy, the chubby one [Darko] lifted his
    shirt and showed Junior that he had a gun. Junior said lets not do this and
    walked him to his car. The other white guy [Daniel] walked over and both got
    into the car. Junior said the chubby one [Darko] was in the passenger seat.

[10]

Junior said they drove up towards where [Nassundu]
    was and they were still yelling back and forth. After the yelling, Junior
    said I seen the white guy pull out the gun and start shooting at [Nassundu]. Junior
    said that the first shooter was the driver, whom he identified as Daniel. Then
    the other guy, Darko stretch over the car and start shooting. The car was a
    silver or grey two-door Cadillac. Junior said he then went over to Nassundu to
    see if he got hit. Nassundu was face down on the ground and had been shot.

[11]

There was evidence at trial that within an hour
    of the shooting, the appellants went to their parents apartment building and exchanged
    the silver Cadillac they had been driving for a blue Mazda owned by their
    mother.

[12]

After the appellants arrest, police found four
    restricted firearms, six empty magazines, two scopes and four red bullets that
    were not live, in the appellants apartment. Because the barrel and slides had
    been removed from the two firearms, a firearms expert from the Centre of
    Forensic Sciences could not test whether any particular shell casing came from
    those firearms.

[13]

Darko testified that he was the driver. As he drove
    out of the parking lot with his brother Daniel in the passenger seat, he heard
    gunshots but continued driving. He denied firing any shots, or having any
    firearm. Daniel did not testify. The firearms expert from the Centre of
    Forensic Sciences confirmed that all four shell casings found at the scene were
    fired from the same gun and that the gun must have been a .40 calibre.

[14]

Swabs were taken of the interior of the
    appellants vehicle but they were never tested for gunshot residue.

[15]

A jury found each of the appellants guilty of
    attempted murder of Nassundu, and of discharging a firearm with intent to
    endanger Nassundus life. The sentencing judge stayed the discharge firearms convictions
    based on the principle from
R. v. Kienapple
, [1975] 1 S.C.R. 729
. The sentencing judge held that this shooting in a populated public
    place, which jeopardized the lives of others and resulted in Nassundu being
    confined to a wheelchair with no use of his legs, justified a sentence of 18
    years for each appellant.

THE ISSUES

[16]

The issues raised on this appeal are:

1.

Whether the jury instruction on party liability
    (aiding), in respect of Darko, was adequate;

2.

Whether the trial judge took reasonable steps to
    mitigate the prejudice caused to the appellants by the introduction, only in
    the Crowns jury submissions of the alternative theory that Darko aided Daniel
    to commit the offence of attempted murder;

3.

Whether the trial judge should have instructed the
    jury that Detective Constable Ditlof's hearsay evidence obtained from Nassundu
in the hospital the morning after the shooting,
could not be relied on for the truth of its contents;

4.

Whether the trial judge erred in her instruction
    to the jury on Juniors preliminary hearing evidence; and

5.

Whether the sentencing judge erred in her analysis
    of the aggravating factors or failed to consider the appellants rehabilitative
    prospects such that the sentences should be reduced.

ANALYSIS AND CONCLUSIONS

The First Issue: The Jury Instruction on Party
    Liability

[17]

The appellants claim the trial judges
    instruction about aiding was deficient in that (1) it did not apply the
    evidence to the legal instruction on aiding,
and (2) it
    did not connect the instruction on aiding to the essential elements of the
    offences. The appellants claim the trial judge therefore committed an error of
    law that adversely affected the deliberation process and verdict. Although the
    jury was only charged on party liability with respect to Darko, the appellant
    Daniel argues that this ground of appeal affects him as well because, had party
    liability been properly left with the jury for him, he could have been
    convicted of a lesser offence.

The Law Respecting
    Jury Instructions and Party Liability

[18]

There are two means by which a party may be
    found liable for an offence: primary liability, which refers to the person who
    actually committed the offence, or secondary (or party) liability, which
    includes those who aid another to commit the offence. Both primary and
    secondary liability are set out in s. 21 of the
Criminal
    Code
. The accused can be convicted of the
    substantive offence either as the perpetrator or the aider:
R. v. Cowan,
2021 SCC 45, at paras.
    29-30;
R. v. Pickton,

2010 SCC 32, [2010] 2 S.C.R. 198,
at para.
    51, per LeBel J. (concurring);
R
. v. Thatcher
,
[1987] 1 S.C.R. 652, at p. 694
.

[19]

A jury must be instructed as to the factual
    issues to be resolved, the law to be applied, the parties positions and the
    relevant evidence:
R. v. Cadeddu
, 2013 ONCA 729, 304 C.C.C. (3d) 96, at
    para. 63. The essential elements of aiding and abetting should be linked to the
    essential elements of the offence at issue:
R. v. Huard,
2013 ONCA 650,
    302 C.C.C. (3d) 469, at para. 64, leave to appeal refused, [2014] S.C.C.A. No.
    13;
R. v. Josipovic,
2019 ONCA 633, 147 O.R. (3d) 346, at para. 66.
    The distinction between liability as a perpetrator and liability as an aider
    must be clearly articulated:
Josipovic,
at para. 48.

[20]

Where there are two accused, the trial judge
    must instruct the jury that in addressing the liability of each accused, the
    jury must consider the case against each accused separately by reference to the
    evidence admissible against each:
Josipovic
, at paras. 47, 52.

[21]

On appeal, the standard of review of a jury
    charge is adequacy, not perfection:
R. v. Newton,
2017 ONCA 496, 349
    C.C.C. (3d) 508, at para. 13. The adequacy of a jury charge is assessed
not in isolation, but in the context of the
    trial as a whole, including the closing submissions of counsel:
R. v. Daley
,
2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58. The
    functional question an appellate court must ask is whether the jury was left
    with a sufficient understanding of the facts as they relate to the relevant
    issues:
R. v. Jacquard
,
[1997]
    1 S.C.R. 314, at para. 14; see also
Newton
, at para. 13 and whether the jury would adequately
    understand the issues involved, the law relating to the charge the accused is
    facing, and the evidence they should consider in resolving the issues:
R. v. Cooper
,
[1993] 1 S.C.R. 146, at p. 163;
see also
Newton
, at para. 13.

The Trial
    Judges Jury Instruction


i.

The Charges

[22]

The trial judge told the jury that because Darko
    and Daniel were each charged with attempted murder and discharging a handgun
    with intent to endanger life, a separate verdict must be rendered for each
    accused on each charge.


ii.

The Necessary Elements of Aiding Another
    to Commit an Offence

[23]

The trial judge then outlined the definition of
    aiding, telling the jury that, A person may be found guilty of an offence
    because he helped somebody else to commit it.

[24]

She explained the elements of aiding as follows:

An aider may help another person commit an
    offence by doing something. It is not enough that what the aider does has the
    effect of or resulted in helping the other person commit the offence.
The
    aider must intend to help the other person commit the offence. Actual
    assistance is necessary. This is the conduct requirement
.

It is not enough that the other person was
    simply there when the crime was committed by someone else. In other words, just
    being there does not make a person guilty as an aider. Sometimes, people are in
    the wrong place at the wrong time.

On the other hand,
if a person knows that
    someone intends to commit an offence and goes to or is present at a place where
    the offence is committed, to help the other person commit the offence
, then
    that person is an aider of the others offence and he is equally guilty of it.

Aiding relates to a specific offence. An a
i
der must do something or give assistance for the
    purpose of helping the other person commit the offence. The state of mind
    requirement expressed by the term purpose, requires Crown counsel to prove
    both intent and knowledge
.

For intent, Crown counsel must prove that Darko
    Stojanovski intended to help Daniel Stojanovski to commit the offences,
    although Crown counsel need not prove that Darko Stojanovski desired the
    successful commission of the offences
.

For knowledge, Crown counsel must prove
    that Darko Stojanovski knew that Daniel Stojanovski intended to commit the offences,
    although Crown counsel need not prove that Darko Stojanovski knew precisely how
    Daniel Stojanovski would commit the offences
.
    [Emphasis added.]

[25]

Later in the charge, the trial judge advised the
    jury,

I remind you that Daniel Stojanovski and Darko
    Stojanovski are each entitled to have his case decided on the basis of his own
    conduct and state of mind and from the evidence that may apply to him.


iii.

The Necessary Elements of Attempted
    Murder

[26]

Then, the trial judge outlined the necessary
    elements of the offence of attempted murder. She also applied those elements to
    each of the two appellants, because the only real issues were whether either or
    both of the appellants shot Nassundu and if so, whether either or both intended
    to kill Nassundu:

For you to find Daniel Stojanovski and Darko
    Stojanovski guilty of attempted murder, Crown counsel must prove beyond a
    reasonable doubt:

1. that they meant to kill Mr. Williams by
    wounding him with a firearm; and

2. that they fired a gun
    to wound Mr. Williams.

In dealing with each accused sep
a
rately,
the first question is
: Did
    Daniel Stojanovski mean to kill Mr. Williams?
Did Darko Stojanovski mean to
    kill Mr. Williams?

This element has to do with their state of
    mind at the time they fired the gun.

The crime of attempted murder requires proof
    of a particular or specific state of mind.
Crown counsel must satisfy you
    beyond a reasonable doubt that when they fired the gun, they meant to kill Mr.
    Williams
.

To determine whether Daniel Stojanovski and
    Darko Stojanovski meant to kill Mr. Williams, consider all the evidence,
    including what they did or did not do; how they did or did not do it; and what
    they said or did not say. Consider what they said and did before, at the time
    and after they fired the handgun. All these things and the circumstances in
    which they occurred may shed some light on their state of mind at the time.

You may conclude that as a matter of common
    sense that a person usually knows what the predictable consequences of his
    actions are and means to bring them about. You may, but do not have to reach
    that conclusion. You must not do so if, on the evidence as a whole, you have a
    reasonable doubt
whether Daniel Stojanovski and
    Darko Stojanovski meant to kill Mr. Williams.

The second question is
: Did Daniel Stojanovski fire the gun?
Did Darko Stojanovski fire
    the gun? This element has to do with their conduct. They are alleged to have
    fired the gun to wound Mr. Williams
.

If you are satisfied beyond a reasonable doubt
    that Daniel Stojanovski fired the gun to wound Mr. Williams, this conduct
    amounts to an attempt to kill Mr. Williams.

If you are satisfied beyond a reasonable doubt
    that Darko Stojanovski fired the gun to wound Mr. Williams, this conduct
    amounts to an attempt to kill Mr. Williams. [Emphasis added.]

[27]

After explaining the elements of attempted
    murder, the trial judge explained to the jury that, if they were not satisfied
    that either appellant had the requisite state of mind for attempted murder,
    they could convict the appellants of the lesser included offence of aggravated
    assault:

After considering all of the evidence, if you
    are not satisfied beyond a reasonable doubt that Daniel Stojanovski meant to
    kill Mr. Williams, you must find him not guilty of attempted murder.

If you are not satisfied beyond a reasonable
    doubt that Daniel Stojanovski meant to kill Mr. Williams, but you are satisfied
    beyond a reasonable doubt that he intended to shoot Mr. Williams, then you must
    find him not guilty of attempted murder, but guilty of aggravated assault.

If you are satisfied beyond a reasonable doubt
    that Daniel Stojanovski meant to kill Mr. Williams, you must find him guilty of
    attempted murder on Count One.

After considering all of the evidence, if
    you are not satisfied beyond a reasonable doubt that Darko Stojanovski meant to
    kill Mr. Williams, you must find him not guilty of attempted murder
.

If you are not satisfied beyond a reasonable
    doubt that Darko Stojanovski meant to kill Mr. Williams, but you are satisfied
    beyond a reasonable doubt that he intended to shoot Mr. Williams, then you must
    find him not guilty of attempted murder, but guilty of aggravated assault.

If you are satisfied beyond a reasonable doubt
    that Darko Stojanovski meant to kill Mr. Williams, you must find him guilty of
    attempted murder on Count One. [Emphasis added.]


iv.

The Necessary Elements of Discharging
    a Firearm with Intent to Endanger Life

[28]

The trial judge then went through the same
    exercise with respect to the other charge faced by the appellants: discharging
    a firearm with intent to endanger life. She reminded the jury that they must
decide
the case regarding each appellant
    separately. She explained the essential elements of the offence, namely, (1) the
    intentional discharge of a firearm at Nassundu, (2) with the intent to endanger
    his life. Again, the trial judge posed questions to the jury for each element
    of the offence, asking the question separately for each appellant. She
    correctly articulated the intent requirement for this offence, including that
    the discharge of the firearm must be intentional and that there must have been
    intent to endanger Mr. Williamss life, that is, the intent to put him at risk
    of losing his life.


v.

The Trial Judges Summary of the
    Evidence

[29]

This was followed by the trial judges summary
    of the evidence.

[30]

Among other things, she reminded the jury of the
    Crowns evidence. She reminded them that Nassundu testified that he told police
    that both Darko and Daniel each fired two or three shots at him even if they
    did not have two guns and they used one gun. Nassundu testified that he told
    the police Darko shot him in the shoulder and then gave his brother the gun,
    and that Nassundu then began to run. He collapsed and was shot in the back. Nassundu
    testified that, I know who shot me. I am not making an assumption.

[31]

The trial judge also reminded the jury that
    Officer Nicholas Ditlof spoke to Nassundu at the hospital the morning after the
    shooting. Nassundu was in a lot of pain, his speech was muffled, and he was
    gasping for air. Officer Ditlof made notes of their conversation as follows,
    although they were not verbatim.

Q. Who shot you?

A. Darko, two twins, white, 20's, Croatian,
    look alike, one heavier than the other.

[]

Q. How did they leave?

A. Drove a Cadillac CTS, silver, two-door,
    new.

[32]

The trial judge reminded the jury of Juniors
    evidence. Junior said he saw Nassundu with two white guys, they got into an
    argument and one of them grabbed Nassundu from the back and they fell on the
    ground. After he and others separated the two men, the chubbier white guy
    lifted up his shirt, revealing a gun. The two white men got into their vehicle
    and drove to where Nassundu was standing. The chubbier white guy and Nassundu
    continued to yell at each other. The chubbier guy on the passenger side pulled
    out a gun and started shooting at Nassundu. The other white guy stood up and
    stretched over the car and started shooting. Then they drove onto Bergamot in a
    silver or grey two-door Cadillac. He said there was a rapid succession of
    shots. He was shown a photo lineup but was unable to identify Darko or Daniel.

[33]

The trial judge also reminded the jury of the
    evidence proffered by Darko. Darko testified that Nassundu had been his
    marijuana dealer for some time, and on the day in question, he and Nassundu
    started to argue and it became a physical fight. He said Nassundu lunged at him
    with a knife and, after being led away by someone else, Nassundu came at him
    with the knife and said he was going to kill him. Police found a knife near
    Nassundu when he was found. Darko said that when he got to his car, he looked
    for his brother and they both got into the car. He and Nassundu were still yelling
    and swearing at each other. Darko said he drove out of the parking lot and, as
    he turned onto Bergamot Avenue, he heard gunshots. He did not know where they
    were coming from and kept driving. (Daniel did not testify.)


vi.

The Trial Judges Repetition of the
    Necessary Elements of Aiding

[34]

After her reminder that it was the jurys
    recollection of the evidence not hers that mattered, and her summary of the
    evidence, the trial judge repeated a second time, the elements of aiding in the
    commission of an offence:

[I]f a person knows that someone intends to
    commit an offence and goes to or is present at a place where the offence is
    committed to help the other person commit the offence, then that person is an aider
    of the others offence and he is equally guilty of it.

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

For intent, Crown counsel must prove that Darko
    Stojanovski intended to help Daniel Stojanovski to commit the offences,
    although Crown counsel need not prove that Darko Stojanovski desired the
    successful commission of the offences
.

For knowledge, the Crown must prove that Darko
    Stojanovski knew that Daniel Stojanovski intended to commit the offences,
    although Crown counsel need not prove that Darko Stojanovski knew precisely how
    Daniel Stojanovski would commit the offences
. [Emphasis
    added]

Analysis and
    Conclusion Respecting the Adequacy of the Charge

[35]

For the reasons that follow, I find the charge
    was adequate.

[36]

First, contrary to the appellants suggestion,
    the trial judge did not treat Daniel and Darko as a single entity throughout
    her instructions. She carefully and repeatedly instructed the jury to treat
    each appellant separately, and she framed the questions facing the jury in
    terms of each appellant.

[37]

The trial judge explained to them the
    requirements for aiding and that the aiding theory of liability related only to
    Darko. In this respect, this case is distinguishable from
Josipovic
,
    relied on by the appellants. The trial judge here did not treat the appellants
    as a single unit, and she clearly distinguished between liability as an aider and
    liability as a principal.

[38]

Neither did the trial judge lump together the
    charges faced by the appellants. Before her initial instruction on aiding, the
    trial judge instructed the jurors that the appellants were charged with
    attempted murder and discharge of a firearm with the intent to endanger life. She
    then informed the jury, Aiding relates to a specific offence. She defined the
    conduct requirement for aiding as follows: An aider must do something or give
    assistance for the purpose of helping the other person commit the offence. She
    then explained the purpose requirement for aiding being that Darko must have
    intended to assist Daniel in the commission of the offences and must have
    known that Daniel intended to commit the offences. Although the trial judge
    referred to the offences when discussing the purpose requirement for aiding, she
    was clear that aiding relates to a specific offence. Further, she correctly
    instructed the jury on the distinctions between the two charges they each
    faced.

[39]

Second, the jury would not have been confused as
    to how the legal instructions on aiding applied to the offence of attempted
    murder. The charge on aiding was not an afterthought, as submitted by the
    appellant.

[40]

Each of the two accused was charged with the
    same two offences. After reminding the jurors that the charges were attempted
    murder and discharge of a firearm with the intent to endanger life,
she correctly explained the three necessary
    elements of party liability being (i) doing something to aid another to commit
    the offence, (ii) knowing the other meant to commit the offence; and (iii)
    intending to help the other commit the offence
:
R.
    v. Briscoe
, 2010 SCC 13,
    [2010] 1 S.C.R. 411, at paras. 14-17.

[41]

The trial judge
made it
    clear that liability as an aider relates to a specific offence, and that in
    order to find Darko guilty of aiding Daniel to commit an offence, the jury must
    find that Darko knew Daniel intended to commit the offence, that he intended to
    help Daniel commit the offence, and that he did something to further the
    commission of the offence.

[42]

The trial judge
then correctly
    articulated the legal requirements to find Darko guilty of attempted murder,
    those being
that, (1) he meant to kill Nassundu by
    wounding him with a firearm; and (2) he fired a gun to wound Nassundu. She also
    correctly articulated the intent required for the lesser included offence of
    aggravated assault and the essential elements of discharging a firearm with
    intent to endanger life.

[43]

The appellants acknowledge that her instructions
    on the elements of the offences are error-free.

[44]

Then, after providing her summary of the
    evidence presented at trial, the trial judge repeated the three required
    elements of party liability.

[45]

In her second instruction on aiding, she again instructed
    the jurors that liability as an aider relates to a specific offence. She
    advised that in order to find Darko guilty of aiding, the jury must find that
    Darko knew Daniel intended to commit the offence, that he intended to help
    Daniel commit the offences, and that he did something to further the
    commission of the offences.

[46]

I am reminded that o
n
    appeal, the standard of review is adequacy, not perfection and that [a]n
    appellate courts approach is functional. It assesses the adequacy of the
    charge in the light of its purpose:
Newton,
at para. 13. In this case, the trial judge (a) correctly explained the law of
    aiding, (b) she instructed the jury that aiding applies to a specific offence, (c)
    there were only two offences in this case one of which was attempted murder and,
    (d) in explaining the required elements of attempted murder, she instructed the
    jury that attempted murder requires an intention to kill
.

[47]

Reading the charge as a whole, the jury would
    have understood that in considering Darkos liability for aiding, they would
    have to relate aiding to one of the two specific offences and conclude that
    Darko knew that Daniel intended to commit that offence and intended to help him
    commit it. In the circumstances of this case, the main distinguishing feature
    between the offences charged was the intent element the Crown was required to prove.
    The same conduct, shooting Nassundu with a firearm, grounded each charge. It
    was in this context that the jury was asked to consider whether the Crown had
    proven beyond a reasonable doubt that Darko knew that Daniel intended to commit
    a specific offence, intended to help him commit it, and did something for the
    purpose of assisting him to commit that offence.

[48]

As the respondent submitted, the jury would have
    understood that to convict Darko of attempted murder as an aider, they would
    need to find that he did something to aid Daniel to commit the attempted
    murder, he knew that Daniel intended to kill Nassundu, and he intended to help
    Daniel commit the attempted murder.

[49]

While the trial
judge
could have provided a more detailed instruction, the jury was adequately
    equipped to understand the legal issues they were to consider in respect of
    aiding.

[50]

Third, the jury would not have been confused
    about the application of the evidence to the legal tests as the evidence in
    this case was not complicated. There was no dispute that:

i.

Darko and Nassundu knew one another;

ii.

Darko and Daniel went to the parking lot;

iii.

Darko got into a physical altercation with Nassundu;

iv.

Darko and Daniel went to their Cadillac and
    began to drive the vehicle; and moments later,

v.

Nassundu was shot multiple times at close range,
    causing him serious injury.

[51]

The live issues on the attempted murder charge were
    (1) who shot Nassundu and (2) whether the shooter intended to kill Nassundu, and
    relatedly, whether the person aiding the shooter knew that the shooter intended
    to kill Nassundu and intended to assist the shooter. The live issues on the
    charge of discharging a firearm with intent to wound were similarly (1) the
    identity of the shooter and (2) whether the shooter intended to endanger the
    life of Nassundu, and relatedly, whether anyone aiding the shooter knew that
    the shooter intended to endanger Nassundus life and intended to assist the
    shooter.

[52]

The exercise of applying the law that had been
    clearly articulated to the evidence was not a complex exercise for the jury to
    perform.

[53]

Fourth, the Crowns failure to address the purpose
    element of aiding at one point in closing submissions and the trial judges repetition
    of the Crowns position on aiding, when viewed in the context of the charge as
    a whole, do not render the charge inadequate warranting a retrial.

[54]

In closing submissions, the Crown articulated
its alternate theory that Darko acted to aid Daniel to commit
    attempted murder but failed to address the knowledge and intent requirements that
    Darko knew Daniel intended to kill Nassundu and intended to assist him to
    commit the offence. The Crown said
:

[E]ven if Darko Stojanovski didnt fire his
    gun, because he didnt want to hit his brother, didnt want to hit people who
    were around Mr. Williams, someone other than his target, you should still find
    that he aided his brother by driving his brother, Daniel Stojanovski, up to
    within feet of Mr. Williams and then stopping the car so that his brother could
    shoot Mr. Williams. In that scenario, you should still find both guilty of
    attempted murder.

[55]

In her summary of the Crowns position, the
    trial judge also failed to address the purpose requirement for aiding. The
    trial judge summarized the Crowns position on aiding as even if Darko
    Stojanovski did not fire the gun because he did not want to hit his brother or
    anyone other than his target, he aided Daniel Stojanovski by driving him within
    feet of Mr. Williams and stopping his car so that his brother could shoot Mr.
    Williams.

[56]

However, this was not a legal instruction, this
    was a summary of the Crowns position.

[57]

The trial judge had twice given a clear legal instruction
    to the jury that in order to find an accused guilty of attempted murder, the
    perpetrator must have the intent to kill, and that for Darko to be convicted on
    the basis of aiding, he had to know that Daniel intended to commit the offence,
    he must have intended to help Daniel commit the offence, and he must have done
    something to help Daniel commit the offence.

[58]

Fifth, counsels failure to object to the
    instruction may be taken into account on appellate review:
Daley,
at para. 58;
R. v. Flores,
2011 ONCA 155,

269 C.C.C. (3d) 194, at paras. 95, 100.
    Neither of the appellants trial counsel voiced any objection about these
    issues to the trial judge.

[59]

For these reasons, I find the charge, viewed as
    a whole
:

i.

Correctly outlined the legal requirements for
    the charge of attempted murder and aiding another to commit attempted murder;

ii.

Adequately linked the essential elements of
    aiding to the essential elements of the offences at issue;

iii.

Distinguished between liability as a perpetrator
    and as an aider;

iv.

P
rovided a sufficient
    understanding of the evidence that related to those issues; and

v.

Reminded the jury to consider the case against
    each appellant separately.

[60]

I therefore find the trial judge connected her
    instruction on aiding to the essential elements of attempted murder and
    outlined the evidence to enable the jury to apply the evidence to her legal
    instruction about aiding in the commission of an offence. As such, this ground
    of appeal fails.

[61]

In any event, this ground of appeal can have had
    no impact on the appellant Daniel, who was convicted by the jury as a
    principal. There is no basis to think that failing to leave the jury with
    aiding as a route to liability for Daniel had any impact on his conviction.

The Second Issue: Whether the Trial Judge Erred
    in Her Approach to the Crowns Alternative Theory

[62]

As noted above, the Crowns primary theory of
    liability (based on the evidence of Nassundu and his friend Junior) was that
    both Daniel and Darko shot Nassundu. The Crowns alternative theory was that
    Darko aided his brother Daniel to shoot Nassundu.

[63]

The appellants submit that they were not given
    the opportunity to respond to the alternative theory. They claim that the trial
    judge should have made reasonable inquiries with counsel and implemented any
    course of action that would have remedied the prejudice created by the
    inability of the defence to properly respond to the Crowns new alternative
    theory. The appellants claim the trial judge could have allowed the defence to
    reply orally or make additional submissions in writing on the alternative
    theory, which could have been incorporated into the jury charge.

The Law
    Regarding the Presentation of Alternative Theories

[64]

There is nothing unfair in the Crown relying on
    different or alternate theories of liability that satisfy the specific
    allegation made in the charge alleged, as long as each alternative theory is
    rooted in the evidence:
R. v. Kelly,
2017 ONCA
    920, 138 O.R. (3d) 241,
at para. 31. However, this
    general rule is circumscribed by the overriding need to ensure trial fairness
    and, specifically, the accused's right to make full answer and defence:
Kelly,
at para. 31;
R. v. Ranger

(
2003
)
, 67
    O.R. (3d) 1 (C.A.), at para.
134;
R. v. R.H.
, 2022 ONCA 69, at paras. 23-24.

[65]

The Crown is entitled to rely on any basis of
    liability for the offence charged that is available on the evidence:
Kelly,
at para. 30; see also
Pickton,
at para. 19. In
Kelly,
at
    para. 34, Doherty J.A. held, It is incumbent on the defence to demonstrate
    prejudice, justifying the limiting of the Crown's case to a particular theory.

If the defence intends to rely on the fact that the Crown's case is
    limited to the theory advanced by the Crown in shaping the defence, the defence
    must take steps to properly limit the Crown's case. This can be done through a
    request for formal particulars, or by seeking a clear and unqualified statement
    from the Crown that it is relying exclusively on the factual basis advanced in
    its theory of the case:
Kelly
, at para. 35.

[66]

That said, there can be circumstances in which
    the defence, based on particulars provided by the Crown, specific
    representations made by the Crown, or the conduct of the trial, is justifiably
    led to believe that the accused's potential liability is limited to a specific
    theory and conducts the defence accordingly. In those circumstances, the
    defence may be successful in arguing that any departure from the specific basis
    of liability advanced, especially after the evidence is complete, would
    unfairly prejudice the accused's ability to make full answer and defence:
Kelly,
at para. 32;
R. v. Pawluk
, 2017 ONCA 863, 357 C.C.C. (3d) 86, at
    para. 30.

[67]

In
Ranger
, for example, the defence had
    every reason to believe, up to the point of the jury charge, that the jury
    would be told that liability depended on the Crown proving that the accused was
    in the house when the murders occurred: at paras. 141-154, 162. However, the
    trial judge, in his instructions to the jury, put an additional theory of
    liability to the jury that did not require that the jury find that the accused
    was in the house:
Ranger,
at paras. 127, 155-162. This court concluded
    that the defence was materially prejudiced by the introduction of this new
    theory of liability in the trial judge's charge, without notice to counsel
    before closing submissions, and therefore allowed the appeal:
Ranger,
at
    para. 162.

Analysis of the
    Issue of the Crown Presentation of an Alternative Theory

[68]

In this case, the appellants at trial did not ask
    for the opportunity to address the alternative Crown theory of aiding or to make
    additional submissions. Nor is there any suggestion of ineffective assistance
    of counsel.

[69]

Moreover, both of the Crowns theories were
    consistent with the evidence adduced at trial.

[70]

The Crowns primary theory was that both
    appellants had shot at Nassundu from their car. This theory was consistent with
    the evidence of Nassundu and Junior that both Daniel and Darko were shooting.
    Further, it was consistent with the fact that the appellants had removed and
    disposed of the barrels and slides from
two

firearms, one of which was registered to Daniel and the other to
    Darko.

[71]

However, only four shell casings were found at
    the scene and the firearm expert from the Centre of Forensic Sciences opined
    that all four had been shot by the same firearm. Darko agreed that he and his
    brother were present in the parking lot, he and Nassundu had fought, and he and
    his brother left in his Cadillac. Darko testified that he drove the Cadillac
    out of the parking lot, that it was his vehicle, and that he had keys to the vehicle.
    He was the registered owner according to a Ministry of Transportation license plate
    search.

[72]

As such, the Crowns alternative theory arose
    from the evidence, including Darkos own evidence. The Crown submitted that, in
    the alternative, Darko drove the vehicle, both brothers pulled their guns out,
    Daniel began firing but Darko did not have a clear shot to Nassundu and did not
    shoot because he did not want to hit his brother or other bystanders.

[73]

The jury could accept Darkos evidence that he
    drove the vehicle but reject his evidence that neither he nor his brother were
    involved in the shooting.

[74]

Second, the appellants were aware of the
    alternative theory because the Crown gave notice of the alternative theory in
    the pre-charge conference, by flagging the need for an instruction on party
    liability. Crown counsel advised that: It is a reasonable possibility that the
    jury can conclude that the two accused drove up, both pulled out their guns,
    but that only one ended up shooting, given that the four shell casings come
    from one gun. So, they need to be charged on the aiding portion of 21  of Section
    21, given that again its possible that Darko Stojanovski essentially delivered
    his brother to [Nassundu], his brother gets out and shoots [Nassundu]. So, I
    dont expect that to be controversial, the party liability charge.

[75]

Darkos counsel submitted: [W]ith respect to my
    friends request on the charge for party liability, I  Im in agreement that
    the aiding provisions would be most applicable here and would be what would 
    what would apply. That is  certainly would be consistent with my friends
    theory. Thats why I dont  I dont take any issue with that.

[76]

Daniels counsel submitted, following Darkos
    counsels submissions, I have nothing to add to that. This happened
    before any of the parties gave their closing submissions.

[77]

When the trial judge sought clarification from
    the Crown about the alternate theory, following Crown submissions, the appellants
    counsel did not object. The following morning, midway through the jury charge, the
    Crown sought to clarify the theory on aiding, as Crown counsel was concerned his
    earlier answers were not clear. The Crown pointed out that there were only two
    possibilities, in the Crowns submission and theory that either theyre both shooting
    and the shell casings from one gun are not found, or only Daniel is shooting.

[78]

The trial judge confirmed the theory, stating even
    if Darko did not fire his gun, he aided Daniel by driving him within feet of [Nassundu]
    and stopping his car so that his brother could shoot. The Crown affirmed that
    this was correct. Darkos counsel said that the Crowns clarification on this
    issue had alleviated my concerns about the Crowns articulation of the theory
    of aiding the previous day, and that it accords with  with my memory as to
    how my friend presented his closing submission to the jury. No further
    objection was raised.

[79]

In sum, the theories of liability presented to
    the jury were those outlined in the pre-charge conference: that either Darko
    and Daniel both shot Nassundu, or that Daniel shot Nassundu and Darko aided
    him. This is not a case like
Ranger,
where defence counsel was materially prejudiced by the introduction
    of a new ground of liability in the jury charge, without prior notice.

[80]

I therefore see no prejudice to the appellants right
    to make full answer and defence to the alternative theory that Darko aided
    Daniel.

The Third Issue: Use of Officer Ditlofs Note
    That Nassundu Identified the Appellants as the Shooters

[81]

In his trial testimony, Nassundu identified the
    appellants as the shooters. However, he was unable to confirm whether he had
    previously identified them as the shooters. Officer Ditlof was permitted to
    testify that on the day of the shooting, Nassundu told him that he was shot by Darko,
    two twins.

[82]

T
he appellants claim the
    trial judge
erred by not
giving
    a limiting instruction that this statement by Nassundu to Officer Ditlof could
    not be relied on for the truth of its contents. The appellants submit that because
    Nassundu did not adopt his prior identification of the appellants, his
    statement to Officer Ditlof was not admissible as prior identification evidence.
    The appellants submit that a limiting instruction was important because the appellants
    alleged that Nassundu and Junior colluded and, absent such an instruction, Nassundus
    statement would serve to support the Crowns assertion that Nassundu had
    identified the appellants before speaking with Junior.

The Law
    Regarding Use of a Prior Consistent Statement to Help Identify an Accused

[83]

Evidence of out-of-court statements of identifications
    made by a witness constitute prior consistent statements made by that witness:
R. v. Tat
(1997)
,
35 O.R. (3d) 641
    (C.A.),
at p. 656.

[84]

Generally, evidence of a prior consistent
    statement by a witness is excluded as irrelevant and self-serving:
Tat,
at p. 656.
However, in
Tat
,
at
    pp. 656-657,
Doherty J.A. held that:

If a witness identifies an accused at trial,
    evidence of previous identifications made and descriptions given is admissible
    to allow the trier of fact to make an informed determination of the probative
    value of the purported identification. The trier of fact will consider the
    entirety of the identification process as revealed by the evidence before
    deciding what weight should be given to the identification made by the
    identifying witness. Evidence of the circumstances surrounding any prior
    identifications and the details of prior descriptions given will be central to
    that assessment.

Where a witness identifies the accused at
    trial, evidence of prior identifications made and prior descriptions given by that
    witness do not have a hearsay purpose. In his influential article,
Evidence
    of Past Identification
,
supra
, Professor Libling explains
    the admissibility of the out-of-court statements where the witness makes an
    in-court identification in this way, at pp. 271-72:

There is no hearsay problem with this kind
    of evidence. It is not admitted to prove the truth of the earlier
    identification, but to add cogency to the identification performed in court. [E]vidence
    of previous identification strengthens the value of the identification in court
    by showing that the witness identified the accused before the sharpness of his
    recollection was dimmed by time. Furthermore it is important, in assessing the
    weight of the identification in Court, to know whether the identifying witness
    was able to identify the accused before he was aware that the accused was the
    person under suspicion by the police.

Analysis of the
    Use of a Prior Consistent Statement to Help Identify an Accused

[85]

In this case, Nassundus statement was admissible
    to enhance the credibility of Nassundus in-dock identification. Nassundu
    identified the appellants at trial and his earlier identification to Officer
    Ditlof can be used to test the reliability of the identification of the
    appellants as the shooters at trial.

[86]

Although Nassundu did not recall making the
    statement to police when he testified at trial, he did testify that each time
    he spoke with the police, he was telling the truth, and the appellants counsel
    had the opportunity to cross-examine him about the basis for his
    identification, how and why he believed the appellants shot him, and whether he
    was influenced by others or making assumptions based on information from others.
    Moreover, Officer Ditlof testified and could be cross-examined about the
    circumstances in which the statement was made, the accuracy of his notes and
    the circumstances in which he found Nassundu when he gave the statement
    including the fact that he was in considerable pain.

[87]

This evidence was also relevant given the
    appellants assertion that Nassundu and Junior had colluded to identify the
    appellants as the shooters. (I note that although the appellants contended
    that Nassundu and Junior colluded, this is belied by the fact that Junior was
    unable to identify either of the appellants from the photo lineup.)

[88]

Moreover, trial counsel made no objection to this
    reference in the jury charge.

[89]

As such, I find this evidence of identification
    was properly left to the jury for consideration.

The Fourth Issue: The Trial Judges
    Instruction About How Juniors Evidence Could be Used

[90]

The appellants submit that the trial judge erred
    in her instructions to the jury regarding Juniors evidence. The appellants claim
    the jury ought to have been cautioned about relying on evidence that might have
    been the result of collusion. Moreover, the appellants claim the trial judge
    should have given the jury an instruction regarding how Juniors failure to
    testify as a witness at trial affected his credibility, particularly given the
    importance of his evidence.
When summarizing Officer
    Ellis evidence, the trial judge did not summarize the evidence about his attempts
    at service
.

[91]

The adequacy of a jury charge is assessed
in the context of the trial as a whole, including the closing
    submissions of counsel:
Daley,
at para. 58.

[92]

The trial judge is not required to review all
    the evidence upon which the defence relies:
R. v.
    Largie,
2010 ONCA 548, 101 O.R. (3d) 561, at para.
    125, leave to appeal refused, [2010] S.C.C.A. No. 460 & [2011] S.C.C.A. No.
    119. The trial judges role is to decant and simplify:
Jacquard,
at para. 13;
Largie,
at para. 125. This court held
    in
Largie
, at para.
    125, It can nearly always be said that a trial judge could have reviewed the
    evidence in greater detail. But that is not the test. The standard is adequacy,
    not perfection.

[93]

In this case, the t
rial
    judge did advert to the fact that Junior evaded service and the possibility
    that he colluded with Nassundu when she summarized the parties positions.

[94]

The trial judge summarized the Crown position
    that Junior evaded service because he did not want to have anything to do with
    the criminal justice system, and the defence position that Junior colluded with
    Nassundu and evaded service because he realized he made the wrong assumption
    about who shot Nassundu. The trial judge also noted Juniors criminal record.

[95]

The Crown and both appellants counsel had reviewed
    the possibility of collusion and Juniors evasion of service in their closing
    submissions. The Crown submitted that Junior evaded service because he did not
    want to participate in the justice system and that collusion was inconsistent
    with the evidence. The appellants counsel submitted that Junior colluded with Nassundu
    to identify the appellants as the shooters and that Junior evaded service because
    he did not want to get caught in his lies.

[96]

Darkos counsel also noted
    Juniors criminal record, Officer Ellis multiple efforts to serve Junior,
and the frailties of Juniors evidence given that he did not
    testify at trial. Therefore,
by the conclusion of the
    charge, the jury would have been aware of the possibility of collusion,
    Juniors criminal record, and Juniors evasion of service.

[97]

Further, the appellants sought and obtained a
    mid-trial instruction, pursuant to
R. v. Li,
2012 ONCA 291, 110 O.R. (3d) 321, at paras. 67-68, to explain that
    there might be tactical reasons why the defence might not attack the
    credibility of a witness at a preliminary inquiry, and therefore that the
    cross-examination at a preliminary inquiry might not have been as extensive as
    it would have been at trial.

[98]

The trial judge cautioned the jurors before they
    heard Juniors preliminary inquiry evidence, to remember that you have not had
    the benefit of observing [Junior] testify. Consider, as well, where there is
    any real dispute about what [Junior] said in his evidence. Issues at a
    preliminary hearing are different than at trial, including the issue of
    credibility. Credibility is only determined by you, the jury. There are
    tactical reasons why defence counsel may not have conducted a full
    cross-examination of [Junior] at the preliminary hearing. She repeated this
    instruction in the final charge.

[99]

During the pre-charge
    conference,
Darkos counsel asked the trial judge to
    repeat her mid-trial instructions on Juniors evidence in the final charge, which
    the trial judge indicated she would do. The appellants counsel did not seek further
    instruction or clarification on the issue, nor did the
appellants counsel object to the instruction on Juniors evidence in the final
    charge.

[100]

It is expected that trial counsel will assist the trial judge on the
    content of jury instructions and identify any concerns they have with the jury
    charge:
Daley,
at
    para. 58;
Largie,
at
    para. 113. Failure to assist may be indicative of the seriousness of what is
    later said to be an error on appeal:
Daley,
at para. 58;
Largie,
at para. 113. The absence of any request for further
    instructions, in the pre-charge conference or as an objection to the charge
    says something about the overall accuracy of the jury instructions:
Jacquard,
at para. 38. Again, there is
    no allegation of ineffective assistance of counsel.

[101]

For these reasons, the trial judge did not err in her instructions in
    respect of Juniors evidence, and this ground of appeal must fail.

The Fifth Issue: The Appropriateness of
    the Sentences

[102]

The sentencing judge imposed an 18-year sentence on each of the two
    appellants.

[103]

The appellants submit that the sentencing judge (1) erred in her
    analysis of the aggravating factors and (2) failed to address the
    rehabilitative potential of both appellants. The appellants claim that these constituted
    errors in principle that had an adverse effect on the sentences imposed.

[104]

Sentencing judges are owed considerable deference in imposing
    sentences:
R. v. Lacasse,
2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 48. An appellate
    court is only entitled to intervene where the sentence is demonstrably unfit,
    or where a sentencing judge erred in principle, failed to consider a relevant
    factor, or erroneously considered an aggravating or mitigating factor and this
    error had an impact on the sentence:
Lacasse,
at paras. 41-44, 48.

[105]

The sentencing judge considered the following aggravating factors in
    respect of each of the two appellants:

i.

Daniel and Darko were driving and walking in
    Toronto with loaded handguns and with obvious contempt for the lives and safety
    of others;

ii.

They fired their guns in a residential
    neighbourhood filled with families and children;

iii.

Before opening fire, they yelled at others to
    get out of the way;

iv.

There was a real possibility others would be hit
    and seriously wounded or killed;

v.

Their actions shattered the life of Mr.
    Williams; and

vi.

Daniel has a criminal record, albeit dated, for
    assault causing bodily harm.

[106]

The appellants claim the sentencing judge misstated Daniels criminal
    record, stating that he had a dated record for assault causing bodily harm when
    in fact his conviction was for criminal negligence causing bodily harm. In so
    doing, the appellants submit that she overstated the appellants moral blameworthiness.

[107]

I agree that the sentencing judge misstated the particulars of
    Daniels relatively minor criminal record, but this error did not have an
    impact on the sentence. The sentencing judge accorded little or no weight to
    this factor; she found that the fact Darko was a first offender was a
    mitigating factor, but then noted that, given the gravity of the offence, the
    absence of a criminal record [for Darko] does not play a major role in his
    sentence.

[108]

Second, the appellants claim the sentencing judge considered the
    same aggravating factor twice when she stated that, They fired their guns in a
    residential neighbourhood filled with families and children and There was a
    real possibility for others to be hit and seriously wounded or killed. The
    appellants submit that these two factors are duplicate entries, and the
    sentencing judge thus erred by overemphasizing this factor.

[109]

I disagree. The second factor considered that
    this daylight shooting in a residential neighbourhood violated community
    members sense of safety in the neighbourhood. The fourth factor, by contrast, considered
    that the other individuals present at the time of this shooting were put at
    risk of serious harm. As such, the factors are complementary, not duplicative.
    Both factors were relevant to sentencing.

[110]

Third, the appellants claim the sentencing judge
    erred by considering a factor that was not properly an aggravating factor. The
    sentencing judge considered the fact that Before opening fire, they yelled at
    others to get out of the way as an aggravating factor. The appellants submit
    that this fact, when juxtaposed against the real possibility that others could
    be hit, reflected their desire to mitigate the risk of harm to the bystanders.

[111]

I disagree. In listing this as an aggravating
    factor, the sentencing judge appreciated that the appellants chose to take the
    risk of firing in the direction of a group of bystanders. Thus, the appellants
    subjectively recognized the risk and took the risk nonetheless. This factor
    complemented the fact that there was an obvious possibility of inflicting harm,
    which recognized that the risk was objectively real. Therefore, the factor that
    the appellants yelled at others to get out of the way was appropriately
    considered an aggravating factor.

[112]

The appellants also submit that the sentencing
    judge failed to appreciate Darko and Daniels rehabilitative potential, which
    she is obliged to do:
R. v. Disher
,
2020
    ONCA 710, 153 O.R. (3d) 88, at paras. 22, 25, 27 & 60.

[113]

However, unlike the case in
Disher,
the sentencing judge did consider the appellants rehabilitative
    prospects.

The
    sentencing judge listed the programs each of the appellants completed while
    incarcerated. She noted that Darko obtained his high school diploma and started
    a course in business management. He completed anger management and employment
    programs, and Bible courses. He was promoted to head server and cleaned the
    range. Darkos long-term goal is to operate a delivery truck company with
    Daniel. Similarly, Daniel completed high school credits, and participated in
    workshops and Bible courses. He was also a server and cleaned the range.

[114]

She noted that the appellants had taken positive rehabilitative
    steps, and she considered their rehabilitative efforts. However, she
    concluded that the objectives of denunciation and deterrence are of primary
    importance in this case, given that Daniel and Darko were convicted of firing
    guns in a populated public place, jeopardizing the lives of others, out of
    rage and anger, and with catastrophic consequences to the victim. This is
    consistent with this courts comments in
R. v. Danvers
(2005)
,
199 C.C.C. (3d) 490 (Ont. C.A.), at para. 78, that our courts have
    to address the principles of denunciation and deterrence for gun related crimes
    in the strongest possible terms, particularly in the Toronto area. See also
R. v. Brown,
2009 ONCA 563, at para. 33.

[115]

I see no error in principle in the sentencing judges consideration
    of the sentencing principles. Her conclusion is entitled to deference on
    appeal.
I would therefore dismiss this ground of
    appeal.

CONCLUSION

[116]

For the above reasons, as I noted at the outset, I would dismiss the
    conviction appeals, grant leave to appeal the sentences, but dismiss the
    sentence appeals.

J.A.
    Thorburn J.A.

I
    agree. P. Lauwers J.A.


Paciocco J.A. (dissenting):

OVERVIEW

[117]

I agree with most of what my colleague, Thorburn J.A. says. I cannot
    agree, however, that the trial judge provided an adequate instruction on party
    liability  aiding  in respect of Darko Stojanovski (Darko). Specifically,
    the charge did not provide the jury with a functional understanding that in
    order to convict Darko of attempted murder by aiding, the jury had to find that
    Darko knew not only that Daniel Stojanovski (Daniel) intended to shoot Mr.
    Williams but that Daniel intended to kill Mr. Williams. I would therefore allow
    Darkos appeal of his attempted murder conviction.

[118]

The place to begin is in recognizing that a principal offender
    cannot be convicted of attempted murder unless he had a specific intent to
    kill. It is this intent, and nothing less, that furnishes the moral fault
    required for this offence:
R. v. Ancio
, [1984] 1 S.C.R. 225. Offenders
    may be convicted of murder based on constructive intention. But not of
    attempted murder. For attempted murder, the
mens rea
 the specific
    intention to kill

is the principal ingredient of the crime:
Ancio
,
    at p. 247.

[119]

In my view, this same principle applies to the offence of attempted
    murder by aiding or abetting. Put otherwise, where the victim of an attempted
    murder survives, the principal ingredient that warrants the kind of conviction
    and sentence that Darko received in this case, is intentionally aiding the
    assailant,
with the knowledge that the assailant intends to cause the
    victims death
.

[120]

When instructing the jury on the charge of attempted murder, this
    principal ingredient escaped mention. The trial judge never once directed the
    jury that they had to find that Darko knew that Daniel intended to kill Mr.
    Williams in order to convict him of attempted murder for having driven Daniel
    to the victim. In fact, when read as a whole, the charge erroneously suggests
    that Darko could be convicted of attempted murder by aiding even if he only
    intended to assist Daniel to shoot Mr. Williams.

[121]

My colleague effectively concludes that the jurors would have been
    able to glean the specific intent
mens rea
requirement for attempted
    murder by aiding, from what they were told about the elements of attempted
    murder that apply to the principal offender, and from the instructions they
    received relating to the
mens rea
requirement for aiding more
    generally. With respect, I cannot agree.

[122]

As I will detail below, on both occasions when the trial judge
    addressed criminal liability for aiding, the comments that she made were
    general and entirely susceptible to being interpreted to mean that if Darko
    drove the car to Mr. Williams knowing that Daniel was going to shoot Mr.
    Williams, and if Daniel committed attempted murder, Darko would also be guilty
    of attempted murder.

[123]

This, on its own, would have been enough to prevent me from
    concluding that the charge provided the jurors with a functional understanding
    of the principal ingredient in an attempted murder by aiding charge. What
    drives this outcome home, in my view, is that elsewhere in her charge the trial
    judge reinforced the misconception that if Darko drove the car to Mr. Williams
    knowing that Daniel was going to shoot Mr. Williams, and if Daniel committed
    attempted murder, Darko would also be guilty of attempted murder. Specifically,
    the trial judge recounted for the jury, without any qualification or
    correction, the Crowns legally erroneous and misleading statement that Darko
    would be guilty of attempted murder if he aided Daniel  by driving him within
    feet of Mr. Williams and stopping his car so that his brother could shoot Mr.
    Williams.

ANALYSIS

[124]

In elaborating on my position, I will first consider the trial
    judges charge on the elements of the offence of attempted murder, then I will
    examine the general comments the trial judge made about the elements of aiding,
    and then I will look more closely at the broader circumstances that require
    consideration on this appeal, including the trial judges direction relating to
    the Crowns late-breaking theory of liability.

The Charge on the Offence of Attempted Murder

[125]

In her jury charge, the trial judge correctly described the elements
    of attempted murder that apply to a principal of that offence. Of importance to
    the instant appeal, she explained that to be guilty of attempted murder, the
    assailant must have meant to kill the victim. This, of course, tells us what
    the
mens rea
requirement is for the assailant, but it tells us nothing
    about the
mens rea
requirement for an aider who assists the assailant
    in committing the offence of attempted murder. As McIntyre J. made clear in
Ancio
,
    at p. 247, criminal attempt is itself an offence separate and distinct from
    the crime alleged to be attempted. It follows, therefore, that the
mens
    rea
requirement for criminal attempt is necessarily separate and distinct
    from the crime alleged to be attempted.

The Charge on Aiding

[126]

What, then, of the trial judges comments relating to the law of
    aiding? She directed the jury twice on the law of aiding, in identical terms.
    The material comments she made are as follows:

An aider may help another person commit an
    offence by doing something. It is not enough that what the aider does has the
    effect of or resulted in helping the other person commit the offence. The aider
    must intend to help the other person commit the offence. Actual assistance is
    necessary. This is the conduct requirement.

It is not enough that the other person was
    simply there when the crime was committed by someone else. In other words, just
    being there does not make a person guilty as an aider. Sometimes, people are in
    the wrong place at the wrong time.

On the other hand, if a person knows that
    someone intends to commit an offence and goes to or is present at a place where
    the offence is committed, to help the other person commit the offence, then
    that person is an aider of the others offence and he is equally guilty of it
.

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

For intent, Crown counsel must prove that
    Darko Stojanovski intended to help Daniel Stojanovski to commit the offences,
    although Crown counsel need not prove that Darko Stojanovski desired the successful
    commission of the offences.

For knowledge, Crown counsel must prove that
    Darko Stojanovski knew that Daniel Stojanovski intended to commit the offences,
    although Crown counsel need not prove that Darko Stojanovski knew precisely how
    Daniel Stojanovski would commit the offences. [Emphasis added.]

[127]

I will make two observations about this instruction. First, the
    trial judge provided this direction without distinguishing between the charged
    offence of attempted murder by aiding and the charged offence of discharging a
    firearm with intent to endanger life by aiding, and without instructing the
    jury on how the evidence applied to the elements of each, or either, offence.
    As a result, her comments about the elements of aiding remained general
    throughout the instruction and provided no specification as to what exactly the
    Crown needed to prove to secure a conviction of attempted murder by aiding.

[128]

The trial judge was required to give that specification. As this
    court instructed in
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, a trial judge should
    link the essential elements to the offence at issue when instructing the jury.
    Yet nowhere does the trial judge do so in this case. Most critically, the trial
    judges direction gave no indication to the jurors that in order to be guilty
    of attempted murder by aiding, Darko would have to know when he aided Daniel
    that Daniel intended not just to shoot Mr. Williams, but to kill him. In my
    view, this was a non-direction amounting to a misdirection.

[129]

Second, the direction that was given speaks variously about the
    offence, an offence and Daniels offences. This general language, coupled
    with the failure by the trial judge to identify the specific charges she was
    referring to, created confusion about what Darkos precise mental state must be
    in order to be convicted of attempted murder by aiding. Indeed, when the
    comments the trial judge made about aiding are read as a whole, there is a very
    real prospect that the jury may have understood that if Darko intended to help
    Daniel commit any offence, such as a shooting, he would be equally guilty of
    any offence that Daniel ultimately committed, namely attempted murder. This
    risk is particularly pronounced given that this is an entirely plausible
    understanding of what the trial judge said in the third paragraph quoted above,
    which I have emphasized, in which the jury is invited to convict the aider of
    the others offence if the aider knows that the principal offender intended
    to commit an offence.

[130]

My colleague finds solace in the trial judges instruction that
    aiding relates to a specific offence. With respect, I cannot agree. In my
    view, this general statement does not provide meaningful instruction about what
    Darkos state of mind must be in order to be guilty of attempted murder as an aider.
    The trial judge does not explain the specific offence to which aiding must
    relate nor did she identify what kind of relationship she is referring to, or
    the significance of that relationship.

[131]

I appreciate that in determining whether a charge provides a
    functional understanding we can safely infer that juries will apply common
    sense in interpreting what the trial judge has said. It is important to
    remember, however, that specific intention is a
mens rea
concept, a
    technical legal device for ensuring appropriate restraint in the allocation of
    the moral blame that the criminal law requires. It is asking too much of common
    sense to expect that the jurors in this case could reinterpret what the trial
    judge said in order to understand that before they could find Darko guilty of
    attempted murder by aiding, they would have to find that Darko knew
    specifically that Daniel intended not only to shoot Mr. Williams, but to kill
    Mr. Williams. Indeed, it would not grate against common sense to erroneously
    believe that if Darko intended to help Daniel shoot Mr. Williams, and if Daniel
    committed the offence of attempted murder in doing so, then both Daniel and
    Darko would be guilty of that offence. As the following discussion will
    demonstrate, even despite legal training, the Crown at trial was certainly
    labouring under this misconception, and it appears likely that the trial judge
    was as well. Quite simply, I see no basis upon which it can safely be inferred
    that the jury acquired a functional understanding of the
mens rea
element
    of the offence of attempted murder by aiding from the trial judges generic and
    confusing charge on aiding, even bearing in mind that they would have
    understood the
mens rea
element of attempted murder that would apply
    to the principal offender.

The Remaining Relevant Circumstances

[132]

As indicated above, any prospect, however remote, that the jury may
    have gained a functional understanding of the specific intent required for the
    offence of attempted murder by aiding was destroyed entirely by the trial judge
    recounting to the jury the Crowns position relating to Darkos party liability
    for attempted murder. My colleague reproduces, in para. 53 above, the Crowns
    misleading and erroneous representation to the jury that it could convict Darko
    of attempted murder by aiding if Darko drove the car to Mr. Williams knowing
    that Daniel was going to shoot Mr. Williams. When recounting the Crowns
    position, the trial judge said to the jury:

The position of the Crown is that even if
    Darko Stojanovski did not fire the gun because he did not want to hit his
    brother or anyone other than his target, he aided Daniel Stojanovski by driving
    within feet of Mr. Williams and stopping his car so that his brother could
    shoot Mr. Williams. Thus, Daniel Stojanovski is guilty of attempted murder and
    Darko Stojanovski is equally liable of attempted murder.

[133]

That, of course, is a direct invitation to the jury to commit the
    very error that the trial judges charge on aiding left open; if Darko drove
    the car to Mr. Williams knowing that Daniel was going to shoot Mr. Williams,
    and if Daniel committed the offence of attempted murder in doing so, then both
    Daniel and Darko would be guilty of attempted murder.

[134]

Unlike my colleague, I take no solace in the fact that the trial
    judge was simply quoting the Crowns position when she provided this misleading
    and erroneous description of the law to the jury. I say so for two reasons.
    First, if a party misstates the law, a trial judge should not repeat that
    mistaken position in the jury charge unless it is for the purpose of correcting
    the error. Quite naturally, a jury would infer absent such correction that the
    position being repeated before them by the trial judge is a correct one,
    available for them to accept. I have no doubt that the jury would have taken
    what the trial judge said when recounting the Crown position as an instruction
    that this is an acceptable path to conviction notwithstanding that this
    position is wrong in law. In my view, it was a misdirection.

[135]

Second, at no other point in her direction did the trial judge
    instruct the jury on the application of the evidence to the elements of the
    offence of attempted murder by aiding. The trial judges rehearsal for the jury
    of the Crowns mistaken position was the only guidepost provided to the jury in
    the charge on how the law should be applied to the material evidence. I am
    convinced that this eradicated even the remote prospect that the jury might
    somehow have correctly patched together what the law requires from the general
    comments the trial judge made relating to aiding and what she said about the
    elements of attempted murder when committed by the principal offender.

[136]

My colleague relies in her decision on the fact that Darkos trial
    counsel failed to object to the charge. In the circumstances of this case, the
    failure to object tells us nothing about the legal correctness of the charge,
    or its sufficiency, other than that Darkos trial counsel may have been as
    unclear on what the law required as the Crown was and the trial judge appears to
    have been. There can be no suggestion that Darkos trial counsel made a
    tactical decision not to seek an instruction on the principal ingredient of the
    crime of attempted murder by aiding. There would be nothing to gain by
    foregoing the benefit of this legal rule, and everything to lose. Nor can there
    be any realistic suggestion that Darkos trial counsels failure to object
    amounts to an acknowledgement that the charge was legally correct and
    sufficient, or that any error it contained was unimportant. The trial judges
    inadequate and erroneous charge did not relate to a secondary consideration. It
    went to the core of what the law requires for conviction of attempted murder by
    aiding. In my view, the failure of Darkos trial counsel to object to the fundamental
    errors that I have identified can have no bearing on the outcome of this
    appeal. That failure to object does not in any way relieve the trial judge of
    the obligation to correctly charge the jury.

[137]

In fairness to the trial judge, the Crowns theory of liability that
    led to the insufficient and erroneous charge was a late-breaking development in
    the trial. At the outset of the case, the Crowns only theory of liability was
    that both Darko and Daniel shot Mr. Williams. The prospect that Darko aided
    Daniel by driving the car to the victim to facilitate the shooting was not
    available because the evidence of the Crown witnesses, including Mr. Williams,
    was that Daniel was the driver, not Darko. It was only after Darko testified in
    his defence and admitted to being the driver that this alternative theory of
    liability became available.

[138]

The issue of party liability was raised, but only briefly, during
    the pre-charge conference prior to the jury submissions. In its jury submission,
    the Crown asked the jury to consider party liability, but the Crowns
    submissions in that regard were unclear, and the trial judge subsequently told
    the Crown so. She then began to read her charge to the jury.

[139]

The next day, the Crown sought to clarify its position before the
    charge resumed, apologizing for the confusion. The Crown told the trial judge
    that its position was that either both men shot Mr. Williams or only Daniel
    did. Still unsatisfied, the trial judge attempted to gain a clear articulation
    of the Crowns position by paraphrasing her understanding of what the Crown was
    saying:

The Court: And then even if  even if Darko
    did not fire his gun, he aided Daniel by driving him within feet of [Mr.]
    Williams and stopping his car so that his brother could shoot.

Mr. Arnold: Correct.

The Court: Thats Daniels guilty of attempted
    murder and Darko is equally liable

Mr. Arnold: Correct.

The Court:  of attempted murder.

Mr. Arnold: Correct.

[140]

Of course, it does not follow as a matter of law that if Darko drove
    Daniel within feet of Mr. Williams and stopped so that Darko could shoot him,
    that both Daniel and Darko would be equally guilty of attempted murder. Darko
    would not be guilty of attempted murder unless he drove Daniel within feet of
    Mr. Williams and stopped with the knowledge that Daniel intended to kill Mr.
    Williams. Hence the judges paraphrase, which she was later to repeat for the
    jury, is a dangerous misconception of the law. It is the fact that the trial
    judge twice uttered this inaccurate legal statement without correction or
    qualification that drives me to the conclusion that the trial judge does not
    appear to have understood what the law requires.

[141]

It is also noteworthy that no doubt because the Crowns attempted
    murder by aiding theory of liability was a late-breaking development, the trial
    judge provided the jury with a decision tree for the elements of attempted
    murder that would apply to the shooter or shooters, but did not provide a
    decision tree that would apply to Darkos potential liability for attempted
    murder by aiding. It is also probable that it was the late-breaking change in
    the Crowns theory of liability that contributed to the failure by the trial
    judge to discharge her obligation to explain to the jury how the evidence or
    facts relate to the elements of attempted murder by aiding:
R. v. Jacquard
,
    [1997] 1 S.C.R. 314, at para. 14;
R. v. Newton
, 2017 ONCA 496, 349
    C.C.C. (3d) 508, at para. 13.

[142]

To be clear, I agree with my colleague that the Crown was entitled
    to raise this alternative theory of liability, and that Darko was not unfairly
    prejudiced by this late-breaking development. However, in my view, this case is
    a cautionary tale of the perils of late-breaking changes in theory. Where this
    occurs, the party initiating the change, and the trial judge, must find a way
    to ensure that they are properly prepared so that the kind of problems that I
    have identified in this jury charge do not arise.

CONCLUSION

[143]

I have borne in mind that an appellant is not entitled to a perfect
    charge, only a functional and legally correct one that leaves the jury with a
    sufficient understanding of the facts as they relate to the relevant issues:
Jacquard
,
    at para. 14;
Newton
, at para. 13. But this charge was neither
    functional nor legally correct. As indicated, the trial judge failed to link
    the essential elements of aiding to the charged offence. And at no point did
    she tell the jury that to find Darko guilty of attempted murder by aiding they
    would have to find that he had specific knowledge that Daniel intended not only
    to commit an offence by shooting Mr. Williams, but that Daniel intended to
    kill Mr. Williams. Instead, she provided only general comments about the nature
    of aiding, employing variable references to an offence, the offences and
    Daniels offences. And she included a passage in her description of the law
    of aiding that, in its generality, would incorrectly support Darkos guilt as
    an aider of attempted murder if he simply intended to help Daniel shoot Mr.
    Williams. Moreover, because of the late-breaking change in the Crowns theory
    of liability, a decision-tree was not made available to assist the jury in
    understanding the elements of attempted murder by aiding. This alone would have
    been enough for me to find error. But, in my view, the inclusion by the trial
    judge in her charge of the Crowns erroneous theory of liability was a complete
coup de gras
to any reasonable finding that a jury would be able to
    patch together an understanding of the specific intent requirement of attempted
    murder by aiding.

[144]

I am persuaded that the charge relating to the
mens rea
required for attempted murder by aiding was not only insufficient. By leaving
    it open to the jury to accept the erroneous Crown theory of liability, the
    charge constituted a material error of law.

[145]

I would allow Darkos appeal and order a new trial. I agree with my
    colleague that Daniels appeal cannot be allowed. This error affected Darko
    alone. I would therefore dismiss Daniels appeal.

Released: March 1, 2022 P.L.

David M.
    Paciocco J.A.


