The appeal was dismissed but the Court had concerns about the trial. That said, in light of the overwhelming evidence of guilt the appeal was dismissed.
The main thrust of the Court's concern was that the trial judge ought not to have limited his instructions to what the parties argued but ought to have also dealt with the possible routes to guilt disclosed by the evidence.
A summary follows:
The accused was charged with several counts of first degree murder after the police found the dismembered remains of the victims on his property. Throughout the trial, the Crown maintained that the accused had actually shot and killed the women. The defence took the position that the Crown had failed to prove that the accused was the sole perpetrator, suggesting the potential involvement of others to the exclusion of the accused. On the fourth and last day of instructions to the jury, the defence requested that the trial judge specifically instruct the jury in accordance with the respective theories of the parties. The Crown consented to the request and the trial judge instructed the jury on those counts in respect of which the evidence was clear that the victim had died of a gunshot wound that, if they found that the accused had shot the victims, they should find that the Crown has proven the identity of the killer. On the other hand, if they had a reasonable doubt about whether or not he had shot the victims, they should return a verdict of not guilty. Following a question from the jury on the sixth day of deliberations, the trial judge re-instructed the jury that they could also find that the accused was the killer if he "was otherwise an active participant" in the killings. At the conclusion of the lengthy trial, the jury returned a verdict of guilty of second degree murder on each of the counts. The accused appealed his convictions, arguing that the trial judge's retraction of the "actual shooter" instruction on the sixth day of deliberations adversely impacted on the fairness of the trial and occasioned a miscarriage of justice. The Court of Appeal, in a majority decision, rejected the accused's argument and upheld the convictions. The dissenting judge would have granted a new trial on the ground that the trial judge's failure to instruct the jury on the law of aiding and abetting and how it might apply to this case amounted to a miscarriage of justice.
The Supreme Court dismissed the appeal.
Per McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and Cromwell JJ.: The majority of the Court of Appeal was correct in finding that no miscarriage of justice was occasioned in this trial. While it was the Crown's theory that the accused was the sole perpetrator, the record revealed that other routes to liability were also at issue. Not only did the defence theory itself put the participation of others at issue, but the accused's own statements to the police, which implied the involvement of others but not to the exclusion of the accused, alone made it necessary for the trial judge to instruct the jury on potential routes to liability that went beyond the respective positions of both the Crown and the defence. In his charge, the trial judge explained to the jury what effect any finding that others might have participated in the commission of the offences would have on the question of the accused's criminal liability. The crux of the other suspects instructions was that it did not matter whether the accused acted alone or with others; provided that he "actively participated" in the killings, and thus had a physical role in them, he could be found criminally liable. The impugned answer to the jury question was consistent with this instruction and, therefore, the contention that the defence was somehow taken by surprise by this course of events is not borne out on the record.
Furthermore, regardless of counsel's joint position, the trial judge should not have agreed to include the "actual shooter" instruction in the charge. This instruction was not only erroneous in law, but on the facts of this case, it was its addition to the charge which courted a miscarriage of justice. The jury was invited to acquit the accused based on a factual doubt which at law did not necessarily exculpate him. The trial judge properly re-instructed the jury by changing the actual shooter instruction to include the possibility that the accused was "otherwise an active participant in the killing", so that this instruction was consistent with the other suspects instructions and responsive to the evidence and the central issues of the trial.
The instructions as a whole adequately conveyed to the jury what it needed to know to consider the alternate routes to liability properly. This case was never about whether the accused had a minor role in the killing of the victims. It was about whether or not he had actually killed them. Having regard to the overwhelming evidence about the accused's having been actively involved in the actual killing of the victims, either by acting alone or in concert with others, and to the charge as a whole, the expressions "acted in concert with" and "active participant in the killing" compendiously captured the alternative routes to liability that were realistically in issue in this trial. While the trial judge could have instructed the jury more fully on the different modes of participation that could ground criminal liability, including the law on aiding and abetting, there was neither a legal error, because he correctly instructed the jury as to the essential elements which the Crown had to prove to establish liability for the murders, nor a miscarriage of justice, because the jury could not have been led into improper reasoning. The absence of an instruction on aiding and abetting could only have enured to the accused's benefit.
Per Binnie, LeBel and Fish JJ.: The jury was not properly informed of the legal principles which would have allowed them to consider evidence of the accused's aid and encouragement to an unknown shooter as an alternative means of imposing liability for the murders, but the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code applies. There was overwhelming evidence of the accused's participation in the murders and, from whichever perspective his participation is considered, he was necessarily either a principal or an aider or abettor. Indeed, a properly instructed jury would likely have convicted the accused of first degree rather than second degree murder.
In relation to causation-based offences such as murder, there can be a difference between factual causation, the scientific "but-for" cause of death, and legal causation, directed at whether the accused person should be held criminally responsible for the consequences that occurred. Party liability as codified in s. 21 of the Criminal Code often bridges the gap which might otherwise exist between factual and legal causation. But, it remains the duty of the trial judge to convey to the jury as triers of fact the relevant legal principles and how they apply to the evidence adduced at trial, so as to avoid the legally irrelevant uncertainty which otherwise might arise.
Although the ultimate legal liability is the same for a principal or an aider or abettor, the findings of fact necessary and specific legal principles which apply to each are different. In the case of an aider or abettor, the main focus is on the intention with which the aid or encouragement was provided. On the record in this case, the acts of aiding or abetting relied upon to make the accused liable for the murders could have included many things, which could similarly have provided the necessary evidence of intention.
Given that there was no evidence that there was more than one operative cause of death, an instruction as to "concerted action" between the accused and one or more third parties needed to make clear to the jury that, if they had a reasonable doubt that the accused personally committed the murders, they needed to be satisfied beyond a reasonable doubt that he at least aided or abetted them. Both the general instruction and the amended "actual shooter" portions of the charge were misleading, and wrong in law. The words "or was otherwise an active participant" did not convey the adequate causal requirement between the accused's acts and the deaths of the victims for principal liability. The words "or actively participated in the killing of the victim" impermissibly opened up the possibility of the accused's having acted as an aider or abettor without any further instruction on that route of liability.
Finally, similar fact evidence will be admissible not only to show that an accused personally committed each offence charged as a principal, but also to raise the possibility that the offences were committed, in the alternative, by an accused as an aider or abettor. But, the requisite pattern of conduct must be sufficiently connected to both possibilities on all of the counts.
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