



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Josipovic, 2019 ONCA 633

DATE: 20190731

DOCKET: C65286 & C63663

Doherty, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Josipovic and Mato Josipovic

Appellants

Delmar Doucette and Daniel Santoro, for the appellant
    John Josipovic

John M. Rosen and Lindsay Trevelyan, for the appellant
    Mato Josipovic

Michael Bernstein, for the respondent Her Majesty the Queen

Heard: January 7 and 8, 2019

On appeal from the convictions entered by Justice
    Harrison S. Arrell of the Superior Court of Justice, sitting with a jury, on December
    18, 2015, and from the sentence imposed on Mato Josipovic on April 8, 2016.

Doherty J.A.:


I



overview

[1]

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

[2]

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

[3]

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


II



the positions of the parties

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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


III



the facts

[10]

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

[11]

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

[12]

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

[13]

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

[14]

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

[15]

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

[16]

John
    and Malone met on one occasion in the week before the homicide. Malones
    threats escalated to include Johns family. He physically assaulted John.

[17]

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

[18]

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

[19]

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

[20]

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

[21]

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

[22]

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

[23]

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

[24]

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

[25]

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

[26]

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

[27]

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

[28]

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

[29]

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

[30]

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

[31]

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

[32]

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

[33]

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

[34]

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

[35]

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


IV



the grounds of appeal

[36]

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

[37]

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

[38]

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

[39]

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

A.

the conflation of the appellants into a single entity

[40]

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

[41]

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

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

[42]

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

·

John and/or Mato Josipovic caused the death of Louis Malone;

·

John and/or Mato Josipovic caused the death of Louis Malone
    unlawfully;

·

John and/or Mato Josipovic had the state of mind required for
    murder;

·

the murder was not provoked; and

·

John and/or Mato Josipovics murder of Louis Malone was both
    planned and deliberate.

[43]

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

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

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

[44]

There
    were literally dozens of references to the phrase 
John and/or Mato

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

[45]

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

[46]

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

[47]

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

[48]

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

[49]

The
    manner in which the trial judge described the elements of the offence of murder
    did not make that distinction clear, but instead treated the two appellants as
    a single entity. In describing the causation requirement for the offence of
    murder, the trial judge told the jury that it must be satisfied that John
    and/or Mato Josipovic caused the death of Louis Malone. As explained above,
    the causation requirement has application only to the perpetrator, not to an
    aider. One can aid in a murder without in any way causing the victims death: see
R. v. Dooley
, 2009 ONCA 910, at paras. 117-24.

[50]

The
    trial judges instruction on the
mens rea
requirement for murder also failed
    to draw the distinction between liability as a perpetrator and liability as an
    aider. The trial judges instructions tracked the
mens rea
requirement
    in s. 229(a). That requirement applies to the perpetrator. The aiders
mens
    rea
is different. To be guilty of
    murder, the aider
must know that the perpetrator had the requisite
    intent and the aider must intend to assist the perpetrator in the homicide: see
R. v. Zoldi
, 2018 ONCA 384, at paras. 21-22;
R. v. Briscoe
, 2010
    SCC 13, [2010] 1 S.C.R. 411, at paras. 16-18. The trial judges failure to
    clearly articulate the difference between the
mens rea
required for a perpetrator and
the
mens
    rea
required of the aider invited the jury to consider the liability of
    the appellants together as a single unit.

[51]

The
    trial judge should also have told the jury that even if they could not identify
    the shooter beyond a reasonable doubt, there was an alternative basis upon
    which they could convict either or both appellants. The jury could convict if
    satisfied beyond a reasonable doubt that either or both appellants had
    participated in the killing, in the sense that the brother had either shot
    Malone or aided or abetted his brother in the killing of Malone. If the jury
    reached that conclusion with respect to either brother, that brother was guilty
    of murder and it was unnecessary for the jury to decide the exact nature of the
    brothers participation in the killing. For example, if the jury accepted the
    Crowns theory that the brothers agreed to hunt down and kill Malone, and that
    he was killed in furtherance of that plan, both were participants in the
    murder, regardless of who fired the shot: see
R. v. Portillo
(2003)
, 176 C.C.C. (3d) 467 (Ont. C.A.),
    at para.
71;
R. v. Suzack
(2000), 141 C.C.C. (3d) 449
    (Ont. C.A.), at paras. 152-
56.

[52]

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

[53]

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

[54]

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

[55]

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

[56]

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

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



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

[57]

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

[58]

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

[59]

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

[60]

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

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

[61]

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

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

[62]

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

[63]

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

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

[64]

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

[65]

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

B.

the INstructions on liability as an aider

[66]

I
    have canvassed the instructions on aiding to some extent in my analysis of the
    first ground of appeal. I have explained that in outlining the essential
    elements of the crime of murder, the trial judge should have separately described
    those elements as they applied to the shooter and to the helper. As articulated
    in
R. v. Huard
, 2013 ONCA 650, at para. 64:

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

[67]

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

[68]

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

[69]

Matos
    counsel at trial submitted that the decision trees should also explain
    liability as an aider. The trial judge declined to do so as he was of the view
    that:

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

[70]

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

[71]

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

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

[72]

An
    aider is not necessarily guilty of the same offence as the perpetrator. An aider
    may not know that the perpetrator intends to commit murder. In that case, the
    aider is guilty of manslaughter, even if the perpetrator is guilty of murder: see
R. v. Jackson
, [1993] 4 S.C.R. 573, at pp. 581-83;
R. v. Chambers
,
    2016 ONCA 684, at para. 66.

[73]

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

[74]

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


V



conclusion

[75]

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

[76]

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

[77]

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

Released: DD JUL 31 2019

Doherty J.A.

I agree C.W. Hourigan
    J.A.

I agree Harvison Young
    J.A.





[1]

Mato is sometimes referred to as Mike.



[2]
There is also a strong argument that there was no air of reality to the defence
    of self-defence as it applied to John. The Crown, however, argues only that the
    defence should not have been left in respect of Mato. As I would order a new
    trial, it will be for the trial judge at the new trial to determine whether
    there is an air of reality to Johns self-defence claim: see
R. v. Phillips
,
    2017 ONCA 72, at para. 98;
R. v. Cinous
, 2002 SCC 29, [2002] 2
    S.C.R. 3, at para. 130 (per Binnie J. concurring).



[3]
Because the defences of provocation and self-defence both have an objective/subjective
    component, the usual
W.(D.)
instruction would have to be modified: see
R. v. Sadiqi
, 2013 ONCA 250, at para. 21;
R. v. Reynolds
,
    2013 ONCA 433, at para. 9;
R. v. Reid
(2003), 65 O.R. (3d) 723, at
    paras. 72-73 (C.A.).



[4]

The Crown does not argue that the after-the-fact conduct of
    John could be admissible against Mato as conduct in furtherance of the
    agreement to kill Malone: see
R. v. Baron and Wertman
(1976),
14 O.R. (2d) 173 (C.A.)
, at 197-99.


