R. v. Johnson

Kasirer J. — We are all of the view that the majority in the Court of Appeal was correct to conclude that party liability was properly left to the jury by the trial judge (2022 ONCA 534, 162 O.R. (3d) 92). The evidence on the record provided party liability with an air of reality.

We agree, however, with Nordheimer J.A., dissenting, that the trial judge erred in law in his instructions on party liability. In one part of the charge, the judge gave instructions that resembled co-principal liability, but said he was instructing on aiding. In other parts of the charge, the jury was given partially correct instructions on aiding. We share Nordheimer J.A.’s view that the jury was never clearly told that the appellant would have needed to know that the principal intended to kill the victims in a planned and deliberate manner in order to be liable for first degree murder as an aider.

That said, we would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C‑46, because these errors were harmless. There is no reasonable possibility that the jury would have reached a different verdict had these errors not been made (see R. v. Abdullahi, 2023 SCC 19, at para. 33; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25). The evidence that supported party liability was the same as the evidence for co-principal liability. Moreover, the appellant’s defence was not undermined by the jury charge.

Accordingly, we would dismiss the appeal.