R. v. Johnson, 2017 NSCA 64

Nova Scotia Court of Appeal Citation: R. v. Johnson , 2017 NSCA 64 Date: 20170612 Docket: CAC 446850 Registry: Halifax Between: Nathan Johnson Appellant v. Her Majesty the Queen Respondent RESTRICTION ON PUBLICATION: There was a temporary Publication Ban issued Under the Inherent Jurisdiction of the Nova Scotia Supreme Court ( 2015 NSSC 379 ) Judges: Beveridge, Hamilton and Van den Eynden, JJ.A.

Appeal Heard: January 25, 2017, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beveridge, J.A.; Hamilton and Van den Eynden, JJ.A. concurring Counsel: Roger Burrill, for the appellant James Gumpert, Q.C. and Melanie Perry for the respondent Reasons for judgment: INTRODUCTION [ 1 ] The appellant, Nathan Johnson, is a young man. He had some trouble with the law, but nothing in comparison to what he involved himself in on October 23, 2010. [ 2 ] On that day, for reasons so trivial as to beggar belief, Randy Riley decided a pizza delivery man, Chad Smith, deserved to die.

Chad Smith’s offence—in undisclosed and unconfirmed circumstances—was that some years before, he allegedly hit Mr. Riley with a hammer. Riley enlisted the appellant’s help. [ 3 ] Later that day, the appellant confessed to his girlfriend his active role in Mr. Smith’s murder. Her evidence about what the appellant knew and did was corroborated by other evidence. [ 4 ] The jury found the appellant guilty of first degree murder. Life imprisonment with no parole eligibility for 25 years followed. [ 5 ] There are three grounds of appeal.

The first challenges the judge’s jury charge on party liability to first degree murder. The second and third target the admission of hearsay evidence and the judge’s jury charge on the co-conspirators’ exception to the rule that permits reliance on hearsay. [ 6 ] For the reasons that follow, I would dismiss the appeal. To put the appellant’s complaints in context, I will first provide some details about the trial and the evidence heard by the jury. THE TRIAL [ 7 ] Randy Riley and the appellant were jointly charged with the first degree murder of Chad Smith. Mr.

Riley successfully applied for severance ( 2014 NSSC 462 ). This resulted in a separate trial for the appellant on the charges of first degree murder and unlawful possession of a firearm. The appellant’s trial proceeded before the Honourable Justice Joshua Arnold. Riley has yet to stand trial. [ 8 ] There were two key Crown witnesses, the appellant’s former girlfriend, Kaitlin Fuller, and Paul Smith, a friend of Randy

Riley. There were obvious concerns about the credibility of these two witnesses. [ 9 ] Kaitlin Fuller demanded money before agreeing to testify. She believed she would only get money if the appellant were convicted. She gave evidence contradictory to what she had told the police in multiple statements and to her evidence at the Preliminary Inquiry. Some of the important details she had to offer changed over time, with objectively problematic justifications for her memory variation. [ 10 ] Paul Smith refused to cooperate with the police. The police told him he could be an accused or a witness.

Still no cooperation. Once charged, he gave a statement incriminating Riley and the appellant. [ 11 ] The trial judge decided he would give to the jury what is known as a Vetrovec warning—that is it would be dangerous for the jury to rely on their evidence to convict the appellant absent confirming evidence. There is no complaint by the appellant with this aspect of the trial judge’s jury instructions. [ 12 ] The problem for the appellant was twofold. First, Kaitlin Fuller and Paul Smith did not know each other, yet their evidence about the events of October 23, 2010 meshed.

Second, the Crown led objective, independent evidence that confirmed many of the details Fuller and Smith described. [ 13 ] Kaitlin Fuller was just 17 years old when her boyfriend sent her a message that he needed to talk about something bigger than both of them. She met him. He told her he had been involved in a murder. She did not believe him. He gave her details. [ 14 ] The appellant told Ms. Fuller that Riley saw Chad Smith and talked about a historical grievance—a hammer blow to Riley’s head when they were younger. The appellant agreed, “they would get him”. Mr.

Riley said that was not good enough—he wanted to kill Chad Smith. [ 15 ] According to Ms. Fuller, Mr. Riley, in the appellant’s presence, made arrangements for a guy named Paul to drive him to get his “thing”—a sawed-off shotgun. The appellant and Riley wore gloves. The appellant and Riley discussed a good location to ambush Chad Smith and settled on the North end of Dartmouth. [ 16 ] Paul picked them up and drove them to another location to get the gun. The appellant told her that they had a shotgun, and he wore work gloves he got from Paul.

Paul drove them to the Highfield Park bus depot—in the North end of Dartmouth. [ 17 ] Mr. Riley and Mr. Johnson then planned the precise location for a pizza to be delivered by Mr. Smith. The appellant told Ms. Fuller that they made the call for delivery to a blue building in the North end. The appellant told her that they chose this location because it was close to the woods and to his Aunt Veronica’s house. [ 18 ] The appellant clarified to Ms. Fuller that he was the one who made the phone call from a pay phone. He had disguised his voice. [ 19 ] Ms. Fuller recounted that the appellant and Mr.

Riley went to the blue building to wait for the pizza delivery. The appellant waited out back by the woods for an hour or more. The appellant heard one shot, a bang; Riley came running from the other side of the building with the gun saying, “I got him. I got him.” Riley then gave the gun to the appellant and ran the other way. [ 20 ] The appellant described to Ms. Fuller how he took the gun, fled into the woods with it, crawled on the ground and put the gun inside a “a tin pipe or something”.

He also told her of the clothes he wore—some of which turned out to be distinctive—white Coogi jeans, black and white sneakers and a hoodie that zipped up to his eyes. [ 21 ] The appellant told Ms. Fuller that he ran to his Aunt Veronica's house on Leaman Drive where he changed his clothing. [ 22 ] I will set out some of the key features of Paul Smith’s testimony before describing some of the other evidence that supported many of the details Ms. Fuller related to the jury as coming from the appellant’s account of the events. [ 23 ] Paul Smith confirmed Randy Riley called on October 23, 2010, around 6:00 p.m.

He asked Paul to pick him up. On arrival at the pickup location, Riley and the appellant were waiting. On the 15-minute drive to an apartment building, Mr. Riley was in the front passenger seat, with the appellant in the rear. Riley told Paul Smith that he had to deal with someone who had beaten him up with an object years earlier. Randy Riley said he had to get his “thing”. [ 24 ] Upon arrival at the apartment, Randy Riley went into the building, leaving Paul Smith and the appellant in the car for five or ten minutes. When Riley returned, he was holding onto his right hip.

It appeared to Smith that a large object was in his pants and something might have been poking out of his pants. In addition, Riley was wearing “doctor gloves”. He did not have these on arrival nor had he been holding onto his hip. [ 25 ] Paul Smith testified that Riley passed a pair of the “doctor gloves” to the appellant. Paul Smith then drove Riley and the appellant to Highfield Park in the North end of Dartmouth. [ 26 ] On October 23, 2010, Paul Smith had garden gloves in his Jeep. About three months after the murder, Paul Smith ran into the appellant outside of a convenience store.

The appellant told him that he had taken those gloves from the Jeep, and he ended up “chucking them”. He did not explain why. [ 27 ] There was an impressive body of circumstantial evidence that corroborated many of the details of the plan to murder Chad Smith and its execution. It is to these I turn. [ 28 ] David Bryant worked for Panada Pizza. That is where Chad Smith worked as a cleaner and pizza deliverer. Mr. Bryant took a call for a large pepperoni pizza and a two-litre pop around 8:42 p.m. on October 23, 2010. He wrote the telephone number that the caller

had given him on the menu. He realized that the number shown on his telephone call display was an Aliant pay phone. It differed fromthe telephone number the caller had given him. He wrote both numbers on the menu. [29] Mr. Bryant observed that the caller seemed to have a really deep voice. Originally, the caller had requested the order bedelivered to Apt. #3, 15 Highfield. But Mr. Bryant told the caller there as no such apartment in that building. Mr. Bryant asked if thecaller meant Apartment #3, 15 Joseph Young. The caller agreed. [30] Around 9:15 p.m., the pizza was ready. Mr.

Bryant sent Chad Smith to deliver it. [31] The apartment building at 15 Joseph Young Street is blue. The occupants of Apartment #3 heard one loud bang. When theyopened the door, Chad Smith lay on the ground, dying from a single shotgun blast to his chest. Police responded quickly. Beside Mr.Smith was the pizza, with the menu attached to the box. [32] The police located the Aliant pay phone used to place the order. It was within sight of 15 Joseph Young Street.

A witnessfrom a gas station said he had seen two men by that payphone about a half-hour before the police showed up. [33] Immediately after the shooting, police officers conducted a dog track search through the wooded area behind 15 Joseph YoungStreet. No suspects, nor relevant evidence were found. At least not that night. [34] A witness described seeing a man coming out of those woods at a slow jog, wearing white track pants. Ten to fifteen minuteslater a police officer with a tracking dog came out of the same place in the woods as the “jogger”. [35] Cst.

Cooke gave expert opinion evidence as a dog master and in interpreting the actions of his police tracking dog. Cst.Cooke’s dog followed a scent trail from the murder scene through the woods. [36] The police returned to the wooded area the next day. An officer found a sawed-off shotgun inside a drainpipe in a wooded areaclose to the scene of the murder. [37] Cst. Cooke also returned to the area of the search. He saw where a shotgun had been found inside the drainpipe. Cst.

Cookeestimated that he passed within four feet of the drainpipe without realizing its presence. [38] The shotgun had two shells in it, one spent, one unspent. A firearms expert opined that the shotgun could be fired properly andthe spent shell had been fired from it. The wadding and pellets were the same type as recovered from the deceased. [39] The forensic pathologist confirmed that the deceased died from one shot to his chest from a shotgun. [40] Armed with information from Ms. Fuller, the police returned to the wooded area the following week. They found three latexgloves and a heavier work glove.

The police searched “Aunt Veronica’s house” and recovered white Coogi pants soiled with mud. [41] With this background, I return to the appellant’s complaints of error. They are: 1. The trial judge erred in his instructions to the jury regarding parties to an offence in the context of first degree murder; 2. The trial judge erred in admitting inadmissible hearsay evidence; 3.

The trial judge erred in his instructions to the jury on the application and use of admissible hearsay evidence by virtue ofthe co-conspirator exception to the hearsay rule; Instruction on party liability for first degree murder [42] The appellant says there are three problems with the judge’s charge.

The judge: failed to explain causation as it related to aprincipal, thereby confusing the jury as to the difference between causation as it related to the principal and the appellant’s accessorialliability for murder; created confusion between a principal’s mental requirement for murder and an aider’s mental requirement formurder; and did not sufficiently explain the intent required to be guilty of being a party to first degree murder. [43] The Crown suggests that the jury charge, while not perfect, gave to the jury the necessary understanding of what it was theyhad to decide.

Further, at least some of the defects were in the appellant’s favour and consequently of no moment. In addition, anyputative errors can be overlooked as being harmless. [44] Before discussing the substance of the appellant’s complaints, it is important to be clear about the principles appellate courtsmust apply when called on to evaluate the sufficiency of a trial judge’s jury charge. [45] The appellant simply says the trial judge must be correct when instructing a jury on the legal principles that will guide theiradjudicative responsibility, and cites R. v. Miller, 2009 NSCA 71 at para. 14.

It is easy to say that a trial judge must get it right when heor she charges the jury on the law. But, as recognized and discussed in Miller (see paras. 17-19), that does not mean a trial judge muststate the law perfectly. [46] As Lamer C.J.C. wrote two decades ago in R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314, if perfection were thestandard, no jury charge would pass appellate review (paras. 1-2). [47] The overarching question is whether the jury was properly instructed. This requires an appellate court to take a functionalapproach. This approach triggers certain interconnected principles.

It requires an assessment of the putative error in light of the liveissues at trial, the position of the parties before the trial judge, and the overall effect of the charge, without undue focus on isolatedphrases or minute dissection. Substance prevails over form (see: R. v. Jacquard, supra; R. v. MacKinnon (1999), (ONCA), 132 C.C.C. (3d) 545 (Ont. C.A.); R. v. Daley, 2007 SCC 53; R. v. Araya, 2015 SCC 11; R. v. Rodgerson, 2015 SCC 38 at para. 54;

R. v. Robinson , 2016 BCCA 192 ; R. v. Cromwell , 2016 NSCA 84 at paras. 25-26 ). [ 48 ] I agree with the appellant that the charge to the jury could have been clearer and strayed from perfection, but it did not amount to reversible error. Further, if the jury charge was legally flawed, I would apply the proviso in s. 686(1)(b)(iii). I will discuss the proviso later. [ 49 ] It is difficult to avoid the conclusion that the jury struggled with the legal construct of party liability in the context of this case.

They asked no fewer than ten questions—all seeking clarification of the issues engaged by party liability for murder. [ 50 ] The problem can likely be traced to two factors—the circumstances of this case, and the trial judge’s reliance on the wording of the indictment to define the essential elements the Crown had to prove beyond a reasonable doubt. [ 51 ] The circumstances were unusual. The alleged principal, Randy Riley, was not on trial with the appellant.

In addition, if the evidence of Kaitlin Fuller and Paul Smith were accepted by the jury, the appellant was what I would call a co-venturer in the murder of Chad Smith, or, according to antiquated common law, an “accomplice”. [ 52 ] Although the appellant did nothing to directly cause Smith’s death and hence was not a “principal”, it may have been difficult to view his role as merely an aider or abettor under s. 21(1) of the Criminal Code , given his involvement in the planning and implementation of the scheme to murder Chad Smith. [ 53 ] What should the trial judge have told them?

The proper instruction [ 54 ] To understand what the jury should have been told and why the appellant complains that the judge’s charge was problematic, it is first necessary to appreciate the possible pathways to criminal liability. [ 55 ] For centuries, the common law provided for criminal liability beyond those individuals who did the actual physical acts necessary to commit a crime.

But distinctions abounded in the law with rules that governed liability and how to charge principals in the first or second degree, accessories before and after the fact for both felonies and misdemeanours. [1] [ 56 ] The common law terms and their complexities were described by Chief Justice Harrison in R. v. Smith (1876), 38 U.C.Q.B. 218, [1876] O.J. No. 340 (Q.L.) : 36 The words aider, abettor, accessory, and accomplice, as applied to crime, are often used as having the same meaning. But they are by no means synonymous. It is unlawful to aid or encourage the commission of crime.

It is unlawful under certain circumstances to conceal the commission of crime. One who aids is, in ordinary language, called an aider or abettor. An accessory is one who takes an active but subordinate part.

And an accomplice, according to the ordinary meaning of the word, would seem to imply one who not only takes an active part, but positively aids in the accomplishment or completion of the crime. 37 Aiders and abettors, in legal language, are persons who either actually or constructively are present at the commission of an offence, aiding and abetting or counselling and procuring the same to be done; they are, in the case of felonies, principals in the second degree: Brown's Law Dictionary, “Aiders and Abettors.” The aider and abettor must participate in the felony in the sense of acting in concert with those committing it, for although he be present, yet if he do not participate, but remains merely passive, he is not an abettor: 1 Hale P.C. 439. 38 An accessory is a person guilty of a felonious offence, not by being the actor or actual perpetrator of the crime, nor by being present at its performance, but by being in some way concerned therein, either before or after its commission: Brown's Law Dictionary, “Accessory.” 39 An accessory before the fact is he that, being absent at the time of the actual perpetration of the felony, procures, counsels, commands, incites or abets another to commit it: 1 Chit.

Crim. Law, 2nd ed., 262. 40 An accessory after the fact is he who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon: Ib. 264. 41 Principals in the first degree are those who have actually and with their own hands committed the fact. 42 Principals in the second degree are those who were present, aiding and abetting, at the commission of the fact.

They are generally termed aiders and abettors, and sometimes accomplices; but the latter term will not serve as a term of definition, as it includes all the participes criminis , whether they are considered, in strict legal propriety, as principals in the first or second degree, or merely as accessories before or after the fact: 1 Russell on Crimes, 4th ed., 49, referring to Fost. 341. [ 57 ] Many of these distinctions with their attendant complexities were abolished by statute. Wood J.A., in R. v.

Berryman , supra , p. 383, explains: Because the law required accessories to be indicted as such, and the punishments mandated for them were often different than those prescribed for principal offenders, much time was spent by lawyers, judges and juries alike, focusing on the often subtle distinctions of fact which, in any given case, separated the aider and abettor from the accessory before the fact.

In England, Parliament moved to eliminate the distinction in 24 & 25 Vict., 1861, c. 94, by providing that an accessory before the fact was to be indicted, tried, convicted, and punished in all respects as if he were a principal felon. A similar enactment was passed in this country in 1868; see:

An Act respecting Accessories to and Abettors of indictable offences , 31, Vict., 1868, c. 72. [ 58 ] Parliament enacted The Criminal Code , 1892, (S.C. 1892, c. 29). It cemented the sweep of such distinctions to the dustbin.

Section 61 provided: 61. Every one is a party to and guilty of an offence who (

a) actually commits it; or (

b) does or omits

an act for the purpose of aiding any person to commit the offence; or (

c) abets any person in commission of the offence; or (

d) counsels or procures any person to commit the offence. [59] Section 21(1) of the Criminal Code now provides, in nearly identical terms: 21(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [60]

Section 22 makes a person who counsels another person to be a party to an offence, and is afterwards a party to an offence,themselves a party. A separate offence was later created for counselling an offence that was not committed (s. 464). [61] Because of the parity among principals, aiders, abettors and counselors where the offence is committed, there is no legalrequirement for the Crown to specify in the charging document the accused’s precise mode of participation in the alleged crime (see: R.v. Harder, (SCC), [1956] S.C.R. 489).

Nor is the Crown required to provide particulars of the mode of participation (R.v. Govedarov, Popovic and Askov (1974), (ON CA), 16 C.C.C. (2d) 238 (Ont. C.A.). [62] These legal constructs were confirmed by Dickson C.J.C. in R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652;[1987] S.C.J. No. 22 (Q.L.), and laid the foundation for the principle that a jury need not be unanimous if an accused is guilty as aprincipal (the person who actually committed the murder) or as a party. In Thatcher, the appellant was charged with the first degreemurder of his ex-wife.

The primary theory of the Crown was that the appellant personally committed the crime, though there was alsoevidence that he may have committed the murder indirectly, by hiring someone else to perform the physical act of killing. [63] The criticism of a charge that included the potential for criminal liability either as the principal or as an aider was thoroughlyrejected. Dickson C.J.C. wrote: 63 In short, there is very strong evidence, particularly in relation to the murder weapon and the appellant's desire to kill his ex-wife,connecting Thatcher with the crime.

There is some evidence which, if believed, points to his not having committed the crime personally.The facts are for the jury, and the trial judge was correct not to preclude the jury from considering all the alternatives. There is, ofcourse, no burden on the Crown to point to a specific, identified person as the personal assailant of the victim. The trial judge wascognizant of this fact and he rightly instructed the jury in the following way: It is not your concern whether some other person or persons have neither been charged or found guilty of the offence of murder.

Nor is ityour concern whether or not the person who actually committed the crime is known. If you are satisfied from the evidence that JoAnnThatcher was murdered and that this accused aided or abetted in the commission of the murder, it is open to you to find him guilty ofmurder. But again if the Crown has failed to satisfy you that Colin Thatcher either committed the murder or that someone else did so,aided and abetted by Colin Thatcher, then you must give him the benefit of the doubt and find him not guilty. In my view, the case meets the requirements set out by Martin J.A. in R. v.

Sparrow, supra, at p. 458 (approved by McIntyre J. in R. v.Isaac, supra): I am of the view that it is also appropriate, where an accused is being tried alone and there is evidence that more than one person wasinvolved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identityof the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain.

It is, inmy view, however, improper to charge the jury with respect to the liability of the accused as a party under s. 21 where there is noevidence proper to be left with the jury that more than one person was actually involved in the commission of the offence. Since there was such evidence, the trial judge's direction concerning s. 21 of the Code was perfectly proper. [64] Further, the jury need not be unanimous as to which mode of participation led to a finding of party liability—only that the jurybe unanimous his guilt had been established beyond a reasonable doubt.

Chief Justice Dickson explained: 72 Thus, s. 21 has been designed to alleviate the necessity for the Crown choosing between two different forms of participation ina criminal offence. The law stipulates that both forms of participation are not only equally culpable, but should be treated as onesingle mode of incurring criminal liability. The Crown is not under a duty to separate the different forms of participation in acriminal offence into different counts.

Obviously, if the charge against Thatcher had been separated into different counts, he mightwell have been acquitted on each count notwithstanding that each and every juror was certain beyond a reasonable doubt either thatThatcher personally killed his ex-wife or that he aided and abetted someone else who killed his ex-wife. This is precisely what s. 21 isdesigned to prevent. 73 In sum, this Court has held that it is no longer necessary to specify in the charge the nature of an accused's participation in theoffence: Harder.

Moreover, if there is evidence before a jury that points to an accused either committing a crime personally or,

alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accuseddid one or the other, it is “a matter of indifference” which alternative actually occurred: Chow Bew. It follows, in my view, that s. 21precludes a requirement of jury unanimity as to the particular nature of the accused's participation in the offence. Why shouldthe juror be compelled to make a choice on a subject which is a matter of legal indifference? [Emphasis added] [65] For a principal, the essential elements for first degree murder (aside from constructive murder scenarios - see s. 231) arestraightforward:

a) the accused caused the death of the victim;

b) the accused caused the death unlawfully;

c) the accused had the requisite intent for murder, and

d) the murder was both planned and deliberate. See: R. v.

Luciano, 2011 ONCA 89 at para. 91; David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed (Toronto: Carswell,2015), at pp. 687-8; or for a slightly re-worded version: Canadian Judicial Council, Model Jury Instructions, Homicide, last revised July2012, p. 12. [66] The intent for murder is found in s. 229(a)—the person who caused the death, meant to cause death, or meant to cause bodilyharm that he knew was likely to cause death and was reckless whether death ensued or not. [67] To attract liability for first degree murder, the trier of fact must be satisfied beyond a reasonable doubt that the murder was bothplanned and deliberate.

The suggested wording to explain these requirements to a jury are found in Watt’s, supra, p. 691: A planned murder is one that it is committed as a result of a scheme or plan that has been previously formulated or designed. It is theimplementation of that scheme or design. A murder committed on a sudden impulse and without prior consideration, even with anintention to kill is not a planned murder. “Deliberate” is not a word that we often use when speaking to other people. It means “considered, not impulsive”, “carefully thought out,not hasty or rash”, “slow in deciding”, “cautious”.

A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take placebefore the act of murder (briefly describe) starts. A murder committed on a sudden impulse and without prior consideration, even with anintention to kill is not a deliberate murder. [68] These instructions, as adapted by the trial judge to the facts in R. v. Banwait, 2010 ONCA 869, were viewed by MacPhersonJ.A. as being “clear and long accepted” (at paras. 181-82).

Justice MacPherson’s reasons were in dissent, but subsequently approved bythe unanimous Supreme Court of Canada (2011 SCC 55). [69] Although there is no need to particularize the appellant’s mode of participation in Chad Smith’s murder, the Crown’s theory,and the only evidence, was that he aided Randy Riley in the planned and deliberate murder of Chad Smith. [70] The actus reus and mens rea for liability as an aider or abettor are markedly different than for a principal. [71] R. v.

Briscoe, 2010 SCC 13 firmly established that the knowledge component of the mens rea for party liability can be satisfiedby the doctrine of wilful blindness. Before coming to that conclusion, the Court canvassed the cardinal principles of party liability. [72] Charron J. wrote for the unanimous court.

After referring to the parity for criminal liability between one that aids a murderwith anyone that actually commits it, she stressed: “The actus reus and mens rea for aiding or abetting, however, are distinct from thoseof the principal offence” (para. 13). [73] The difference comes from the definition of aiding and abetting in s. 21(1). It is common to refer to “aiders and abettors”. Yetthe two constructs are not identical.

In Briscoe, Justice Charron described the difference: [14] The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages theperpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, andliability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1)(

b) means to assist or help the actor. . . . To abet within themeaning of s. 21(1)(

c) includes encouraging, instigating, promoting or procuring the crime to be committed”: R. v. Greyeyes, (SCC), [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued attrial that Mr. Briscoe was both an aider and an abettor. The trial judge's finding that Mr. Briscoe performed the four acts of assistancedescribed above is not disputed. [74] Of course, merely doing something that has the effect of assisting someone to commit an offence is not sufficient. The Crownmust also establish beyond a reasonable doubt that the accused had the required mental state. Section 21(1)(

b) demands that the aidmust have been given for the purpose of aiding the commission of the offence. [75] That is, the aider did the act (or omitted to do

an act that they had a legal duty to do) knowing the principal offender intended tocommit the offence, and the aid was done with the intent to aid that offender to do so. The aider need not “desire” that the offence becommitted, or know precisely how it will be committed. But he or she must know the principal offender intended to commit the crime,and if the crime is one of specific intent, such as murder, know that the offender had the requisite intent for murder.

[76] This was explained by Justice Charron: [16] The mens rea requirement reflected in the word “purpose” under s. 21(1)(

b) has two components: intent and knowledge. For theintent component, it was settled in R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, that “purpose” in s. 21(1)(

b) should beunderstood as essentially synonymous with “intention”. The Crown must prove that the accused intended to assist the principal in thecommission of the offence. The Court emphasized that “purpose” should not be interpreted as incorporating the notion of “desire” intothe fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed(Hibbert, at para. 35). The Court held, at para. 32, that the perverse consequences that would flow from a “purpose equals desire”interpretation of s. 21(1)(

b) were clearly illustrated by the following hypothetical situation described by Mewett and Manning: If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle forwhich he will pay him $100, when that person is ... charged under s. 21 for doing something for the purpose of aiding his friend tocommit the offence, can he say “My purpose was not to aid the robbery but to make $100”?

His argument would be that while he knewthat he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery wassuccessful or not. (A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 112) The same rationale applies regardless of the principal offence in question.

Even in respect of murder, there is no “additional requirementthat an aider or abettor subjectively approve of or desire the victim's death” (Hibbert, at para. 37 (emphasis deleted)). [17] As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetratorintends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is aprerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v.

Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516,provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89): . . . a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required formurder under s. 229(a): R. v. Kirkness (1990), (SCC), 60 C.C.C. (3d) 97 (S.C.C.) at 127. The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder thatwas planned and deliberate.

The accused is liable as an aider only if the accused did something to assist the perpetrator in the plannedand deliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in thecommission of a planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove thatthe aider knew the murder was planned and deliberate.

Whether the aider acquired that knowledge through actual involvement in theplanning and deliberation or through some other means, is irrelevant to his or her culpability under s. 21(1). [77] The aider may or may not have the requisite intent for murder. If he does, and then undertakes things with the intention thatthe victim would be killed, that is sufficient.

This is the natural result of the principle that a party’s liability is independent of that of theprincipal whether acting through another, perhaps innocent agent, or not. [78] It is well accepted, at least in Canada, that an aider or abettor can be convicted of a more serious offence than the principal,even where the principal is acquitted, not charged or even unamenable to liability (see: Regina v. Michael (1840), 9 Car. & P. 356, 173E.R. 867; R. v. Remillard (1921), (SCC), 62 S.C.R. 21; R. v. Berryman, supra; R. v. Devgan, [2007] O.J. No. 4517; R.v. Huard, 2013 ONCA 650, leave to appeal ref’ed, [2014] S.C.C.A.

No. 13). [79] But an aider need not personally have the intent for murder to be convicted as an aider—the Crown need only establish theaider’s knowledge of the principal’s murderous intent. Justice Charon illustrated: [18] It is important to note that Doherty J.A., in referring to this Court's decision in R. v. Kirkness, (SCC), [1990] 3S.C.R. 74, rightly states that the aider to a murder must “have known that the perpetrator had the intent required for murder”.

Whilesome of the language in Kirkness may be read as requiring that the aider share the murderer's intention to kill the victim, the case mustnow be read in the light of the above-noted analysis in Hibbert. The perpetrator's intention to kill the victim must be known to the aideror abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the samemens rea as the actual killer.

It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, actswith the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor mustintend that the principal offence be committed. See also: R. v. Taylor, 2013 ONCA 656; R. v. Rahimi, 2015 SKCA 85; R. v. Khan, 2015 BCCA 320. [80] From this brief canvas of the law, there are some fundamental principles that emerge.

In the context of an aider’s potentialliability for a planned and deliberate first degree murder, a trier of fact must be satisfied beyond a reasonable doubt that the accused: - did or omitted to do something that aided another person to unlawfully cause the victim’s death - did those things (or at least one of them) for the purpose of aiding that other person to unlawfully cause the victim’s death - when he did those things (or at least one of them) he either had the requisite intent for murder or knew that the principal offenderhad the requisite intent for murder - when he did those things (or at least one of them), he did so for the purpose of aiding the principal offender to commit a plannedand deliberate murder - when he did those things, he planned and deliberated the murder, or knew that the murder was planned and deliberate

[ 81 ] A trial judge has a broad discretion in how he or she might convey these requirements. Much depends on the factual matrix and the live issues at trial. In the context of this case, one approach would have been to instruct the jury that to convict the appellant of being a party to the planned and deliberate murder of Chad Smith, they needed to be satisfied beyond a reasonable doubt that:

a) the accused did one or more acts that aided Randy Riley to unlawfully cause Chad Smith’s death

b) the accused did one or more of those acts for the purpose of aiding Randy Riley to unlawfully cause Chad Smith’s death

c) when he did those acts that aided Randy Riley, he knew that Riley had the requisite intent for murder as found in s. 229 (

a) of the Criminal Code (means to cause Smith’s death or cause him bodily harm that Riley knows is likely to cause death and is reckless whether death ensues or not)

d) when he did those acts that aided Randy Riley, he knew that Riley intended to commit the planned and deliberate murder of Chad Smith

e) when he did those acts that aided Randy Riley, he did them for the purpose of aiding Riley to commit the planned and deliberate murder of Chad Smith [ 82 ] I will now turn to the trial judge’s instructions. The trial judge’s charge [ 83 ] There are many aspects of the trial judge’s charge that are textbook. There is no need to provide a precis . I will only focus on those aspects of the charge the appellant takes issue with. [ 84 ] The trial judge introduced the topic of party liability by saying: In this case there is more than one way for Crown counsel to prove Nathan Johnson's guilt of the crimes charged.

Crown counsel does not have to prove each. Any one is enough. All of you do not have to agree on the same way as long as everyone is sure that one of the required ways has been proven beyond a reasonable doubt. [ 85 ] Standing alone, there is nothing wrong with this direction. In the circumstances of this case, it had the potential to cause confusion. The Crown only argued one path to criminal liability for the appellant—as an aider.

In fact, the trial judge charged the jury solely on the appellant’s potential liability as an aider. [ 86 ] The judge’s instruction on party liability as an aider in general, was as follows: A person who commits an offence, if he does anything for the purpose of helping another person to commit the -- a person also commits -- start that again. A person also commits an offence if he does anything for the purpose of helping another person commit the offence. A person may be found guilty of an offence because he helped someone else to commit it. We describe those who help others commit crimes in this way as aiders.

Aiding requires both conduct and a particular state of mind. 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, an 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 a person was simply there when a crime was committed by someone else. In other words, just being there does not make a person guilty as an aider of any or every crime someone else commits in the person's presence.

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 when the offence is committed to help the other person commit the offence, that person is an aider of the other's offence and equally guilty of it. Aiding relates to a specific offence. An aider must do something 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 Nathan Johnson intended to help Randy Riley to commit the offence. For knowledge, Crown counsel must prove that Nathan Johnson, who is alleged to be the aider, knew that Randy Riley intended to commit the offence, although Crown counsel need not prove that Nathan Johnson knew precisely how Randy Riley would commit the offence.

It does not matter, so far as the aider is concerned, whether the person he aids is not on trial or cannot be found or convicted of the offence. [ 87 ] The appellant does not (nor could he profitably) take issue with this explanation of the law on party liability for an aider. It is correct. [ 88 ] The trial judge then set out what he said were the elements of the offence of first degree murder. It is evident that he distilled those elements from the words used in the indictment.

This caused an inapt description of what the Crown needed to prove. [ 89 ] The formal charge in the indictment read: That he on or about the 23rd day of October, 2010 at, or near Dartmouth, in the County of Halifax in the Province of Nova Scotia, did unlawfully cause the death of Donald Chad Smith, and did thereby commit first degree murder, contrary to

Section 235 of the Criminal Code . [ 90 ] Those are the words that are sufficient to charge the principal offender, and as discussed earlier, an accused who faces liability as an aider, abettor or counselor to an offence that is later committed. It makes sense to rely on the words of the indictment, amplified by applicable Criminal Code

definitions, as a template to distil the elements the Crown must prove against an accused who is alleged to have been the person who actually committed the offence.

[ 91 ] However, it is not a safe paradigm to define the elements of liability for a person on trial as an aider or abettor.

Nonetheless, the trial judge took the wording from the indictment and told the jury: For you to find Nathan Johnson guilty of first degree murder, Crown counsel must prove each of these essential elements beyond a reasonable doubt: 1. that Nathan Johnson aided in causing the death of Chad Smith; 2. that Nathan Johnson aided in causing the death of Chad Smith unlawfully; 3. that Nathan Johnson had the state of mind required for murder; and 4. that Nathan Johnson's murder of Chad Smith was both planned and deliberate. [ 92 ] With all due respect, defining the elements in this way was not an accurate reflection of what the Crown was required to prove.

It had the potential to confuse. The Crown need not prove that the appellant’s assistance caused (i.e. was a “significant contributing cause of death” [2] ) Chad Smith’s death. [ 93 ] Nor, as outlined earlier, is there any need for the Crown to establish that the appellant had the requisite intent for murder—only that he knew of the killer’s murderous intent and provided assistance for the purpose of aiding the killer in the commission of the planned and deliberate murder.

But, as will be detailed later, the trial judge correctly defined this requirement. [ 94 ] Later in the judge’s instructions, he refined the fourth element as requiring the appellant to have planned and deliberated on his aiding in the murder of Chad Smith. Again, this misstates and overstates the mens rea (the mental element). [ 95 ] In other words, the charge put unnecessary burdens on the Crown. Yet the jury still found the Crown had established the appellant’s guilt beyond a reasonable doubt.

Moreover, there were aspects of the trial judge’s charge on these elements that were correct. [ 96 ] I will discuss why some aspects of the judge’s instructions, while troublesome, do not taint the verdict. [ 97 ] The trial judge told the jury that each of the essential elements can be formulated as questions for them to answer.

First, causation: “did Nathan Johnson aid in causing Chad Smith’s death?” [ 98 ] The trial judge directed the jury that: To prove that Nathan Johnson's conduct aided in causing Chad Smith's death, Crown counsel must prove beyond a reasonable doubt that Nathan Johnson contributed significantly to Chad Smith's death. Nathan Johnson's conduct may contribute significantly to Chad Smith's death, even though that conduct is not the only or main cause of Chad Smith's death. To answer this question, you must consider all the evidence you heard on this trial. Do not limit your consideration only to the opinion of what Dr.

Marnie Wood said caused Chad Smith's death. Take into account as well the testimony of any witness who describes the events that took place in and around the time Chad Smith was hurt and died. Use your good common sense. [ 99 ] There was no evidence that the appellant’s conduct contributed significantly to Chad Smith’s death, at least not in the juridicial sense. Smith’s death was caused by a shotgun blast to his chest. [ 100 ] The appellant relies on R. v. Dooley , 2009 ONCA 910 in support of his submission that it is important to avoid language of causation when defining accessorial liability.

In particular, he relies on the following comments by Justice Doherty: [121] While I am satisfied that in order to find liability there must be a connection between the offence and the acts of alleged aiding or abetting, I would not use the language of causation to describe that connection. The connection required in the context of accessorial liability varies. Some kinds of culpable assistance have no causative link to the crime committed.

If “A” holds the victim down while the perpetrator kills the victim, “A” could not escape liability if, before “A” held him down, the victim had been rendered defenceless by the acts of others. Similarly, if “A” encouraged the perpetrator to commit a homicide and the perpetrator did so after receiving that encouragement, “A” could not escape liability even if the perpetrator would have killed the individual irrespective of the encouragement.

The varying nature of the causal link between the accessorial act and the substantive crime renders a description of accessorial liability in terms of causation difficult and unhelpful: see J.C. Smith, “Aid, Abet, Counsel, or Procure” in P.R. Glazebrook, ed., Reshaping the Criminal Law: Essays in honour of Glanville Williams (London: Stevens & Sons, 1978), at p. 120; K.J.M. Smith, “Complicity and Causation”, [1986] Crim. L. Rev. 663. [122] Another reason for avoiding the language of causation when describing accessorial liability arises in the context of a jury charge.

Causation must be explained to a jury in terms of the perpetrator's liability for the alleged crime. Causation in the accessorial context can take on quite a different meaning. An attempt to explain two different kinds of causation to a jury in the same case could well lead to confusion. [ 101 ] I do not doubt the insight of Justice Doherty’s observations, even though they were made in a different context. In Dooley , the two appellants were tried and convicted in the second degree murder of an seven-year-old boy who was the son and stepson of the appellants. The horrific facts need not be recounted.

It was accepted that one of the appellants caused the victim’s death. Both blamed the other. Their respective liability for manslaughter was clear. [ 102 ] Justice Doherty framed the issue: [5] The real issue at trial was whether either or both appellants should be convicted of second degree murder. The resolution of that issue came down to two questions. First, was the perpetrator of the fatal assault guilty of murder or manslaughter? The answer to this

question turned on whether the Crown could prove beyond a reasonable doubt that the perpetrator had the culpable mental state requiredby s. 229(a)(ii). Second, was the non-perpetrator guilty of murder as an aider and abetter?

This question turned on whether the Crowncould establish that the non-perpetrator, for the purpose of assisting or abetting the perpetrator in the commission of murder, providedassistance or encouragement to the perpetrator knowing that the perpetrator intended to commit murder as defined in s. 229(a)(ii). [103] One of the appellants’ complaints in Dooley was that the trial judge failed to charge the jury that the aider or abettor’s conductmust have “caused” the perpetrator to have committed the culpable homicide. [104] This proposition was rejected by Justice Doherty.

The argument by the appellants and why it failed, is as follows: [116] Counsel for the appellants submit that the trial judge erred in law by failing to properly instruct the jury on the conductrequirement of aiding and abetting. They submit the jury must be instructed that to find liability as an aider or abetter, the non-perpetrator's conduct must have the effect of assisting or encouraging the perpetrator in the infliction of the fatal assault.

In theirfactum, counsel for Tony Dooley argued that conduct or an omission could only have the effect of aiding and abetting if thatconduct or omission “caused” the perpetrator to commit the homicide. I do not understand counsel to have gone so far as to arguethat the Crown must prove that “but for” the act of aiding or abetting, the homicide would not have occurred.

Rather, as I understand thesubmission, the jury should have been told that before the alleged act of aiding or abetting could render the non-perpetrator liable for thehomicide as an aider or abetter, that alleged act must have played some causative role in bringing about the homicide. [117] Liability as an aider or abetter has both a conduct component and a culpable mental state component. Both components tie theaccessory's liability for the substantive crime to the actual commission of that crime by another.

Accessorial liability is not inchoate. [118] The appellants' argument focuses on the conduct component of aiding and abetting. The nature of the conduct that can amount toan act of aiding or abetting is coloured by the mental state accompanying that act. The Crown must prove that the alleged aider or abetteracted “for the purpose” of aiding or abetting - meaning that they acted with the intention of aiding or abetting the perpetrator in thecommission of the crime. This requirement can only be met if the aider or abetter has knowledge of the crime that the perpetrator intendsto commit.

Without that knowledge, the alleged aider or abetter cannot act “for the purpose” of aiding or abetting the perpetrator in thecommission of the crime: Criminal Code, ss. 21(1)(b), (c); Dunlop and Sylvester v. The Queen, (SCC), [1979] 2 S.C.R.881, at p. 896; R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, at paras. 36-37; R. v. Maciel, at paras. 86-87. [119] The conduct component that must accompany the culpable mental state is captured by the words “aids” and “abets”. Conduct caninclude omissions. A failure to act where there is a legal duty to do so, what V. Gordon Rose calls “culpable acquiescence”, canconstitute

an act of aiding or abetting: see V. Gordon Rose, Parties to an Offence (Toronto: Carswell Company, 1982), at pp. 18-19;Richard Card, Card, Cross and Jones Criminal Law, 18th ed. (Oxford, U.K.: Oxford University Press, 2008), at p. 760; David Ormerod,Smith and Hogan Criminal Law, 12th ed. (Oxford, U.K.: Oxford University Press, 2008), at p. 190; Brent Fisse, Howard's CriminalLaw, 5th ed. (North Ryde, Austl.: Law Book Company, 1990), at pp. 326-27; R. v. Nixon (1990), (BC CA), 57C.C.C. (3d) 97 (B.C.C.A.), at p. 114, leave to appeal to S.C.C. refused, [1990] S.C.C.A.

No. 316, [1991] 1 S.C.R. xii. [120] I accept that, as the aider or abetter's liability is for the substantive crime and is not for some preparatory step toward thecommission of that crime, there must be a connection between the alleged act of aiding or abetting and the actual commission ofthe crime by the person who is aided or abetted. To take Mr. Ruby's example, an individual who shouts encouragement to another tocommit a crime from a distance where the other person could not possibly hear the shouts of encouragement could not be said to haveencouraged the commission of that crime.

As such, that person could not be liable as an abetter should the other person commit thecrime. [Emphasis added] [105] The required “connection” is the doing or saying of things that somehow facilitates, assists, or encourages the principal offenderin the commission of the crime. That is the conclusion of Justice Doherty, which I would respectfully adopt: [123] The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission ofthe offence.

Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extentfurthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of anycausative role in the commission of the crime. The necessary connection between the accessory's conduct and the perpetrator'scommission of the crime is captured by phrases such as “actual assistance or encouragement” or “assistance or encouragementin fact” or as the appellants argue, conduct that “has the effect” of aiding or abetting: R. v.

Mariani (2007), 2007 ONCA 329, 220 C.C.C. (3d) 74 (Ont. C.A.), at p. 93; R. v. Calhaem, [1985] Q.B. 808 (C.A.), at pp. 814-16; R. v. Bryce, [2004] 2 Cr. App.R. 592 (C.A.), at paras. 72-76; A.G. v. Able, [1984] Q.B. 795, at p. 809; R. v. Clarkson, [1971] 3 All E.R. 344 (Ct. Martial App.

Ct.), atpp. 347-48; Peter Gillies, Criminal Law, 4th ed. (North Ryde, Austl.: LBC Information Services, 1997), at pp. 162-63; Fisse, Howard'sCriminal Law, at p. 326; Rose, Parties to an Offence, at p. 25. [124] While the phrases set out above, and others, I am sure, could be used to explain the necessary connection between the accessorialact and the perpetrator's commission of the crime, often the plain words “assistance”, “encouragement” or “help”, without more, willconvey the same message.

This is especially true where it is accepted that the alleged perpetrator was aware of the alleged acts of aidingor abetting when he or she committed the offence…. [Emphasis added] [106] Although, as demonstrated, the issue in Dooley was different than here, I agree that it was inappropriate for the trial judge tohave required the Crown to prove beyond a reasonable doubt that the appellant did something that amounted to a significant contributingcause of Chad Smith’s death. [107] Nonetheless, the jury found that the appellant had done things that, at least in their view, amounted to a significant contributingcause of Chad Smith’s death.

The judge referred the jury to not just the forensic evidence about the immediate cause of death—the fatal

injuries from the shotgun blast—but also the evidence of Paul Smith and Kaitlin Fuller. [ 108 ] Ms.

Fuller and Paul Smith’s evidence could allow the jury to find that, knowing Riley’s intention to kill the victim, the appellant: went with Riley to get the gun; donned the gloves Riley gave to him; engaged in the selection of the area where they would lure the victim (in the North end, close to woods and his Aunt Veronica’s home); placed the phone call to get the victim to the apartment building; and, the jury could readily infer that the appellant agreed with Riley to wait for him to shoot the victim, then take the gun and gloves from Riley for disposal, as Riley fled in a different direction. [ 109 ] If the evidence of Kaitlin Fuller and Paul Smith were accepted by the jury, there was overwhelming evidence that the appellant did many things that aided and abetted Randy Riley to cause Chad Smith’s death. [ 110 ] The only rational conclusion is that the jury accepted this evidence as demonstrating his acts contributed significantly to cause Chad Smith’s death.

From a technical view of the law about causation, this cannot be. But from a common sense layman’s perspective, the acts and conduct of the appellant aided Riley to cause Chad Smith’s death. [ 111 ] I need not review the judge’s charge about whether the death of Chad Smith was unlawful.

The unlawfulness of a shotgun blast into the chest of the victim delivering pizza is patent. [ 112 ] With respect to intent, the judge posed the question: “did Nathan Johnson have the state of mind required for murder?” The judge’s instructions that followed were, at least partially, a correct statement of the necessary mental element for an aider’s liability as a party to the murder.

He said this: For an unlawful killing to be murder, Crown counsel must prove beyond a reasonable doubt one of two states of mind: One, that Nathan Johnson aided someone who meant to kill Chad Smith knowing that person meant to kill Chad Smith; or Two, that Nathan Johnson aided someone who he knew meant to cause Chad Smith bodily harm that was likely to kill Chad Smith and was reckless whether Chad Smith died or not. [ 113 ] The trial judge stumbled a bit when he added: In other words, to prove that Nathan Johnson aided in committing murder, Crown counsel must satisfy you beyond a reasonable doubt either that: One, Nathan Johnson aided someone who he knew meant to kill Chad Smith; or Two, that Nathan Johnson meant for bodily harm to be caused to Chad Smith that Nathan Johnson knew was so serious and dangerous that it would likely kill Chad Smith, and proceeded despite his knowledge that Chad Smith would likely die as a result.

Crown counsel does not have to prove both. One is enough. All of you do not have to agree on the same state of mind as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt. [Emphasis added] [ 114 ] The emphasized words overstated the burden on the Crown. More significantly, the judge omitted to specifically tell the jury that they needed to be satisfied the acts of assistance or encouragement were done for the purpose of aiding or encouraging Mr. Riley’s killing of Chad Smith.

I will explain later why this stumble is not fatal in these circumstances. [ 115 ] In relation to the question of first degree murder, the trial judge told the jury that they must be satisfied beyond a reasonable doubt the murder of Chad Smith was both planned and deliberate. He instructed them: The next question is, was Nathan Johnson's murder of Chad Smith both planned and deliberate? Not every murder is first degree murder.

To prove that Nathan Johnson's aiding in the murder of Chad Smith was first degree murder, Crown counsel must prove beyond a reasonable doubt not only that Nathan Johnson aided in murdering Chad Smith, but also that the murder was both planned and deliberate. It is not enough for Crown counsel to prove that Nathan Johnson aided in the murder of Chad Smith. It is not enough for Crown counsel to prove that the murder was planned or that the murder was deliberate.

In order to establish that the murder of Chad Smith was first degree murder, Crown counsel must prove not only that Nathan Johnson aided in committing the murder, but also that the murder Nathan Johnson aided in committing was both planned and deliberate. It is the murder itself that must be both planned and deliberate, not something else that Nathan Johnson said or did. [ 116 ] This is functionally correct. The appellant agrees.

Further, he makes no complaint on any aspect of the judge’s instructions on the meaning of “planned” and “deliberate” and his review of the evidence that bore on that issue. [ 117 ] Nonetheless, the appellant asserts something more needed to be said about the path to party liability for the appellant—that is, not only must the murder of Chad Smith be planned and deliberate, but the appellant needed to know this at the time he said or did things that aided or encouraged Riley, and that those things were done for the purpose of aid or encouragement of the first degree murder. [ 118 ] From an intellectual or academic perspective, the appellant is correct.

But the omission, in the circumstances of this case, does not amount to reversible error. I say this for two reasons. [ 119 ] First, taking into account the live issues at trial and the overall effect of the charge, the jury was well equipped to determine if the Crown had established beyond a reasonable doubt the appellant’s liability as a party to the first degree murder of Chad Smith. Second, even if some of the jury instructions were flawed, the errors were harmless within the meaning of the proviso set out in s. 686(3) (b)(iii) of the Criminal Code . I will explain.

[ 120 ] The judge’s comments I have detailed above do not exhaust the judge’s instructions about party liability for first degree murder. The jury had questions. They were astute, particularly considering the instructions and the evidence. [ 121 ] To put some of the jury questions into context, I will first set out the Decision Tree given to the jurors.

Some of the jury questions were about that adjudicative guide. [ 122 ] The Decision Tree posed the four questions reflective of what the judge said were the essential elements of the offence: DECISION TREE Final 231-A PLANNED AND DELIBERATE FIRST DEGREE MURDER ( CODE , s. 231(2)) Did Nathan Johnson aid in causing Chad Smith’s death ? Æ No Final Verdict: Not Guilty È Yes Did Nathan Johnson aid in causing Chad Smith’s death unlawfully ? Æ No Final Verdict: Not Guilty È Yes Did Nathan Johnson have the state of mind required for murder ? Æ No Final Verdict: Not Guilty of First Degree Murder, but Guilty of Manslaughter È Yes Was Nathan Johnson’s aiding in the murder of Chad Smith both planned and deliberate? Æ No Final Verdict: Not Guilty of First Degree Murder, but Guilty of Second Degree Murder È Yes Final Verdict: Guilty of First Degree Murder [ 123 ] The jury started deliberations at 11:34 on the morning of December 2, 2015.

At the end of the day, they had this question: Can we get clarification with regards to aiding? Is aiding something that occurs before, during and after a murder occurs or only before planning and during to help cause/advance the murder? [ 124 ] Extensive discussions with counsel ensued. The next morning, the trial judge shared with counsel his proposed response. Both Crown and defence counsel approved of the answer to be given. The trial judge told the jury: So the direct answer to the question, if I can put it that way, is aiding relates to the principal offence.

There must be a connection between the alleged act of aiding and the actual commission of the crime by the person who is being aided. Aiding can be relied on by the Crown if a person does anything to help another person to commit the offence. If the help occurs before or during the commission of the offence, a person who only or exclusively helps after the commission of an offence is not an aider.

That's the direct answer to your question. [ 125 ] The trial judge also directed the jury about the inferences they may be able to draw if they found that the appellant took the gun and gloves, fled the scene with them and disposed of them. [ 126 ] The judge repeated the correct relationship between acts that assist a principal and the mental element required. It is important to repeat what he told them: Moving on to aiding, a person may be found guilty of an offence because he helped someone else to commit it. We describe those who help others commit crimes in this way as aiders.

Aiding requires both conduct and a particular state of mind. 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. … Aiding relates to the specific offence. An aider must do something 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 Nathan Johnson intended to help Randy Riley to commit the offence. For knowledge, Crown counsel must prove that Nathan Johnson, the aider, knew that Randy Riley intended to commit the offence, intended to commit the offence, although Crown counsel need not prove that Nathan Johnson knew precisely how Randy Riley would commit the offence.

It does not matter, so far as the aider is concerned, whether the person he aids is not on trial or cannot be found or convicted of the offence.

[ 127 ] The appellant takes no issue with any of these directions. The trial judge repeated a fair deal of his earlier instructions, including relating the evidence to the issues they had to decide. Importantly, he stressed to the jury the mental element required for murder: Three, did Nathan Johnson have the state of mind required for murder? The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder Crown counsel must prove beyond a reasonable doubt one of two states of mind.

One, that Nathan Johnson aided someone who meant to kill Chad Smith, knowing that person meant to kill Chad Smith, or, two, that Nathan Johnson aided someone who he knew meant to cause Chad Smith bodily harm that was likely to kill Chad Smith and was reckless whether Chad Smith died or not.

In other words, to prove that Nathan Johnson aided in committing murder, Crown counsel must satisfy you beyond a reasonable doubt either that Nathan Johnson aided someone who he knew meant to kill Chad Smith, or that Nathan Johnson meant for bodily harm to be caused to Chad Smith that Nathan Johnson knew was so serious and so dangerous that it would likely kill Chad Smith and proceeded despite his knowledge that Chad Smith would likely die as a result. [ 128 ] The trial judge also repeated his charge on what was required for first degree murder if they were first satisfied beyond a reasonable doubt of his guilt as a party to the murder of Chad Smith.

He instructed them: Was Nathan Johnson's murder of Chad Smith both planned and deliberate? Not every murder is first degree murder. To prove that Nathan Johnson aided in the murder of Chad Smith, to prove that his aiding in the murder was first degree murder, Crown counsel must first prove beyond a reasonable doubt not only that Nathan Johnson aided in murdering Chad Smith, but also that the murder was both planned and deliberate. It is not enough for Crown counsel to prove that Nathan Johnson aided in the murder of Chad Smith.

It is not enough for Crown counsel to prove that the murder was planned or that the murder was deliberate. In order to establish that the murder of Chad Smith was first degree murder, Crown counsel must not only prove that Nathan Johnson aided in committing the murder, but also that the murder Nathan Johnson aided in committing was both planned and deliberate. [ 129 ] Crown and defence counsel had no objection to these instructions. [ 130 ] The jury requested a written version of the judge’s answer to their first question. This request was denied.

There was no written version. [ 131 ] Later that day, the jury returned with six questions or requests. They were: 1. Is an aider someone who knows another person intends to commit an offence with intent to cause bodily harm or death? 2. Is it correct that actual assistance is required in order to be an aider? 3. Can you elaborate on the term ‘actual assistance’? 4. Is knowledge of the plan and being present as the plan is being carried out enough to be considered an aider? 5. Are you an aider if you know you will have involvement after an offence is committed? 6.

If you’re unable to answer the specific questions above, will you please read again for us the charge as you did first thing this morning? [ 132 ] These requests generated extensive discussions on the exact wording that should be used to respond. Research ensued. After three hours, the judge discussed his proposed answers. Counsel specifically endorsed them. [ 133 ] The trial judge then answered the jury questions as follows: But in relation to question one, “Is an aider someone who knows another person intends to commit an offence with intent to cause bodily harm or death?” No.

Having knowledge of the principal's intention on its own is not enough to make someone an aider. Question two, “Is it correct that actual assistance is required in order to be an aider?” Yes. Mere presence during the commission of an offence standing alone is not enough to constitute aiding. Mere presence at the commission of an offence can be evidence of aiding if accompanied by other factors such as prior knowledge of the principal's intention to commit that type of offence and attendance for the purpose of facilitation of the offence.

What the Crown is required to prove beyond a reasonable doubt is the intentional rendering of assistance by the aider to the principal in the commission of the offence. [ 134 ] With respect to defining “actual assistance”, he told them: The term “actual assistance” is not a legal term. I would ask you to use your common sense in considering this aspect of the evidence. There are many ways -- many different ways in which a person can assist another person to commit an offence.

It might be helpful to consider whether the Crown has adduced or produced evidence that the person accused of aiding did something and that act actually aided or helped the principal offender to commit the offence with which he is charged. Actual assistance or help could include helping the principal offender avoid detection if the aider went to the scene before or during the commission of the offence with the knowledge of the principal offender's intention to commit the crime and the intention to assist the principal offender avoid detection.

Assisting a principal offender after the commission of an offence without prior knowledge of the principal's intention to commit that type of offence and attendance for the purpose of facilitation of the offence would not make someone an aider. [ 135 ] The next question was also directly answered—mere knowledge aforehand and presence are not sufficient. His answer was as

follows: “Is knowledge of the plan and being present as the plan is being carried out enough to be considered an aider?” Mere presence during the commission of an offence is not sufficient to consider someone an aider. Something more is needed.

Presence at or during the commission of an offence can be evidence of aiding if accompanied by other factors, including prior knowledge of the principal offender's intention to commit the offence and evidence that the person accused of aiding did something and that act actually helped or aided the principal offender to commit the offence with which he is charged. [ 136 ] The last of these questions was, “are you an aider if you know you will have involvement after an offence is committed?” The judge took a further break to discuss with counsel the precise words that would give them the correct view of the law, especially as it related to the evidence against the appellant.

Again, counsel endorsed his proposed answer. It was: If you know that someone intends to commit an offence and you then go to or are present at a place when the offence is committed to help the other person commit the offence, such help could include assisting the offender avoid detection, then you are an aider of the other person's offence and equally guilty of it. A person who provides assistance to a principal offender after the commission of the offence without prior intention to provide assistance is not an aider.

A person is not guilty merely because he is present at the scene of a crime and does nothing to prevent it. A person is not an aider if they render assistance to the principal offender after the fact without a prior intention to do so. [ 137 ] A little over an hour later, the jury had another request: With regards to the decision tree entitled Final 231(

a) Planned and Deliberate, First Degree Murder, please reiterate the instructions provided for questions 2, 3 and 4. [ 138 ] The judge discussed with counsel his proposed response. They agreed with it. But, given the hour, deliberations were suspended for the night. [ 139 ] The next morning, the trial judge reviewed again for the jury the questions posed in the Decision Tree.

Forty-five minutes later, the jury had their last question: Can you define and expand on unlawfully[ sic ] state of mind required for murder and planned and deliberate? [ 140 ] The judge suggested to counsel, and they agreed, that he would reread his charge on all of these issues. The judge did so, again relating the key evidence on the issues, including reminding the jury about his cautions regarding the evidence of Kaitlin Fuller and Paul Smith.

I will only highlight the charge about first degree murder, as the appellant’s complaint focuses on this instruction. [ 141 ] As he had done before, the trial judge emphasized that they could only consider the issue of the appellant’s liability as a party to first degree murder if they were satisfied beyond a reasonable doubt that the appellant had been a party to the murder of Chad Smith. [ 142 ] The trial judge’s charge on the requirements for first degree murder evolved.

This time, he told the jury that the question was not whether the murder of Chad Smith was planned and deliberate, but was the appellant’s aiding in that murder planned and deliberate. His instruction was: Was Nathan Johnson's aiding in the murder of Chad Smith both planned and deliberate? Not every murder is first degree murder. To prove that Nathan Johnson's aiding in the murder of Chad Smith was first degree murder, Crown counsel must prove beyond a reasonable doubt not only that Nathan Johnson aided in murdering Chad Smith but also that Nathan Johnson's aiding in the murder was both planned and deliberate.

It is not enough for Crown counsel to prove that Nathan Johnson aided in the murder of Chad Smith. It is not enough for Crown counsel to prove that Nathan Johnson's aiding in the murder was planned or that Nathan Johnson's aiding in the murder was deliberate. In order to establish that the murder of Chad Smith -- in order to est -- just need one minute.

In order to establish that Nathan Johnson's aiding in the murder of Chad Smith was first degree murder, Crown counsel must prove not only that Nathan Johnson aided in committing the murder, but also that Nathan Johnson's aiding in the murder was both planned and deliberate. [Emphasis added] [ 143 ] This explanation departed from what he had told the jury earlier, and is not what the law mandates; there was no need for the appellant’s assistance to have been planned and deliberate.

The jury had to be satisfied beyond a reasonable doubt that his acts or conduct provided actual assistance for the purpose of aiding Riley to carry out what the appellant knew to be the planned and deliberate murder of Chad Smith. [ 144 ] Trial counsel had no objection. On appeal, the appellant labelled the instruction on first degree murder, a “slight variation”. There was no need for the jury to be satisfied that the appellant’s aiding was planned and deliberate.

This put an unnecessary burden on the Crown. [ 145 ] The appellant argues: 87 The total impact of this information provided to the jury could surely have led to confusion as to party liability for first degree murder. While it is true that the Trial Judge properly answered some of the jury’s specific questions regarding the meaning of party liability broadly, the overall effect of the Trial Judge’s instructions to the jury leads to doubt about the integrity of the verdict. [ 146 ] As outlined earlier, it is the overall effect of the jury charge that is relevant, not isolated passages.

The jury would not have been misled or failed to understand that to convict the appellant they had to be satisfied that he knew about the planned and deliberate murder of the victim and aided the perpetrator Riley in carrying it out. [ 147 ] Actual participation in the planning and deliberation is not necessary, but if an accused acquires his knowledge through that

process, it is sufficient if the accused then acts for the purpose of aiding in the commission of the offence. [148] Justice Doherty in R. v. Maciel, 2007 ONCA 196, explains: 88 The knowledge component of the fault requirement flows from the intention component. An aider can only intend to assist theperpetrator in the commission of the crime if the aider knows the crime that the perpetrator intends to commit. While the aider mustknow the crime the perpetrator intends to commit, the aider need not know the details of that crime: Dunlop and Sylvester v.

The Queen(1979), (SCC), 47 C.C.C. (2d) 93 at 110 (S.C.C.); Regina v. Yanover and Gerol (1985), (ON CA), 20C.C.C. (3d) 300 at 329-30 (Ont. C.A.); V. Gordon Rose, Parties to an Offence (Toronto: Carswell, 1982) at 11. Consequently, a personwho is said to have aided another in the commission of an attempted murder must know that the perpetrator intended to kill the victim: R.v. Adams (1989), (ON CA), 49 C.C.C. (3d) 100 at 110 (Ont. C.A.). Similarly, a person who is alleged to have aided ina murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v.

Kirkness (1990), (SCC), 60 C.C.C. (3d) 97 at 127 (S.C.C.). 89 The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder that wasplanned and deliberate. The accused is liable as an aider only if the accused did something to assist the perpetrator in the planned anddeliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in the commission ofa planned and deliberate murder.

Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knewthe murder was planned and deliberate. Whether the aider acquired that knowledge through actual involvement in the planningand deliberation or through some other means, is irrelevant to his or her culpability under s. 21(1). [Emphasis added] [149] The jury were properly told what the Crown had to prove for them to find the appellant a party to the murder of Chad Smith andwhat was required to make that murder planned and deliberate. I accept that it could have been a

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