In this episode, you will hear the oral submissions from the Appellant Don Johnson vs His Majesty the King. Mr. Johnson was charged with two counts of first-degree murder of brothers, Justin, and Jerome Waterman. The three of them were known to be friends. At trial before a judge and jury, Mr. Johnson denied the crime and that he was the shooter. Further, he alleged that a man named Marcus Cumsille likely murdered the brothers. The Crown argued that it was unlikely Mr. Cumsille was the shooter. 

At trial, the Judge instructed the jury, that even if Mr. Johnson was not the shooter, he must be found guilty if there was any intention to assist the shooter, in other words, if he was found to be aiding. After the jury convicted Mr. Johnson, he appealed to the Court of Appeal for Ontario on the basis that the trial judge did not have a factual basis for the party instruction and that a finding of guilt on such was not open to the jury.

The majority dismissed the appeal. In his dissenting remarks, Nordheimer J.A. would have allowed the appeal. He was of the view that there was no evidentiary foundation for party liability that the jury could consider. Furthermore, there was no reason to believe that Mr. Johnson would have assisted the shooter in committing the crime if he was not the shooter. 

Mr. Johnson is now appealing to the Supreme Court of Canada as of right.