Don Johnson v. His Majesty the King
(Ontario) (Criminal) (As of Right)
Criminal law - Charge to jury - Criminal law — Charge to jury — Party liability — Did the majority of the Court of Appeal err in finding that party liability was properly left to the jury as a route to conviction? — In the alternative, did the majority of the Court of Appeal err in finding that the trial judge’s instructions to the jury on party liability were adequate?.
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The appellant, Don Johnson, was found guilty of two counts of first degree murder by a jury. The majority of the Court of Appeal for Ontario dismissed his appeal, finding that it was open to the trial judge to leave party liability with the jury. Nordheimer J.A., dissenting, would have allowed the appeal, set aside the conviction, and ordered a new trial. In his view, there was an insufficient evidentiary foundation to leave the route of party liability with the jury, as there was no air of reality to the suggestion that, if the appellant was not the shooter, he aided the actual shooter in the commission of the murders. The instructions were also inadequate, as the trial judge did not adequately set out the requirements that had to be met to prove that route.
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