Trial judge made errors in jury instructions; only one witness testified that accused was involved
A trial judge failed to properly instruct the jury on the mens rea element of aiding and abetting and did not give a sufficient corrective instruction relating to inadmissible hearsay evidence, the Nova Scotia Court of Appeal recently ruled.
The appellant did not testify but made statements to undercover police officers and during his arrest. In both statements, which the jury considered, he admitted driving with Lawrence to the victims’ home but claimed that he was only going there to pick up drugs for someone else.
In 2012, the jury convicted the appellant of two counts of first-degree murder in the two deaths. He appealed. In 2014, the Nova Scotia Court of Appeal set aside the convictions and ordered a new trial. In 2018, after a retrial, the appellant again received convictions for two counts of first-degree murder. He appealed once more.
Another new trial ordered
The Court of Appeal allowed the appeal and overturned both convictions. First, the appellate court ruled that the trial judge made errors in his instructions on mens rea for both principal and party liability.
As the Court of Appeal explained, the judge failed to:
- describe the distinct essential elements of aiding, including the mens rea for party liability
- relate the general description of aiding to the specifics of this case
- review the evidence that could suggest that the appellant was a party to the offence
- instruct the jury that a finding of guilt for first-degree murder as a party required the appellant to have knowledge of the principal’s planning and deliberation
- leave second-degree murder as a possible verdict.
Second, the appellate court held that the judge failed to give an adequate corrective instruction when the jury heard hearsay evidence of the person for whom the appellant allegedly wanted to pick up drugs. The judge should have explained to the jury that they could use this hearsay evidence to provide context for the appellant’s statements, the Court of Appeal said.
Third, the appellate court determined that the judge failed to review the exculpatory evidence regarding the appellant’s membership in the conspiracy at the second step of his instruction in line with R. v. Carter,  1 S.C.R. 938. This was significant because Lawrence was the only person who testified that the appellant was involved in the planning of the murders, the Court of Appeal noted.
Fourth, the appellate court said that the judge failed to differentiate between inculpatory and exculpatory witnesses when considering whether to provide a warning pursuant to Vetrovec v. The Queen, 1982 CanLII 20 (SCC),  1 SCR 811.
However, the Court of Appeal dismissed the appellant’s arguments that the judge committed errors in his jury instructions on proper inferences and in his summary dismissal of the appellant’s application under s. 11(b) of the Canadian Charter of Rights and Freedoms.
Lastly, the appellate court declined to excuse the errors under the curative proviso, s. 686(1)(b)(iii) of the Criminal Code, given that the errors it identified could potentially affect the verdict, whether individually and cumulatively.