Case information
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40330
Don Johnson v. His Majesty the King
(Ontario) (Criminal) (As of Right)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2025-01-23 | Appeal closed | |
| 2023-10-25 | Transcript received, 49 pages | |
| 2023-10-17 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2023-10-17 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2023-10-13 |
Judgment on the appeal rendered, Row Mar Kas Ja Ob, The appeal from the judgment of the Court of Appeal for Ontario, Number C66280, 2022 ONCA 534, dated July 18, 2022, was heard on October 13, 2023, and the Court on that day delivered the following judgment orally: 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. 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. Dismissed |
|
| 2023-10-13 |
Hearing of the appeal, 2023-10-13, Row Mar Kas Ja Ob Decision rendered |
|
| 2023-10-10 | Appellant's condensed book, (Book Form), (Printed version filed on 2023-10-11) | Don Johnson |
| 2023-10-10 | Notice of Remote Participation by a Judge of the Supreme Court of Canada sent to all parties | |
| 2023-10-06 | Respondent's condensed book, (Book Form), (2 volumes), Mission POS, (Printed version due on 2023-10-16) | His Majesty the King |
| 2023-09-15 | Notice of appearance, Don Johnson, Dirk Derstine and Tania Bariteau will appear before the Court. Dirk Derstine and Tania Bariteau will present oral argument. | Don Johnson |
| 2023-06-27 | Notice of hearing sent to parties, via email. | |
| 2023-06-27 |
Appeal hearing scheduled, 2023-10-13 Decision rendered |
|
| 2023-06-09 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2023-05-24 | Certificate of counsel (attesting to record), 24B | His Majesty the King |
| 2023-05-24 | Respondent's book of authorities, (Book Form), Completed on: 2023-05-24, (Printed version filed on 2023-05-25) | His Majesty the King |
| 2023-05-24 | Respondent's record, (Book Form), (3 volumes), 5 videos included in Records, Completed on: 2023-05-24, (Printed version filed on 2023-05-25) | His Majesty the King |
| 2023-05-24 | Respondent's factum, (Book Form), Completed on: 2023-05-24, (Printed version filed on 2023-05-25) | His Majesty the King |
| 2023-03-30 | Certificate of counsel (attesting to record) | Don Johnson |
| 2023-03-30 | Appellant's record, (Book Form), (16 volumes), Completed on: 2023-04-03, (Printed version filed on 2023-03-30) | Don Johnson |
| 2023-03-30 | Appellant's factum, (Book Form), Completed on: 2023-04-03, (Printed version filed on 2023-03-30) | Don Johnson |
| 2023-02-02 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2023-02-02 | Judgment on leave sent to the parties | |
| 2023-02-02 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C66280, 2022 ONCA 534, dated July 18, 2022, is dismissed. Dismissed |
|
| 2022-12-12 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2022-10-26 | Certificate (on limitations to public access), 23A | His Majesty the King |
| 2022-10-26 | Respondent's response on the application for leave to appeal, (Book Form), (4 volumes), Completed on: 2022-11-04, (Printed version filed on 2022-10-27) | His Majesty the King |
| 2022-10-19 | Order on motion to extend time, by BROWN J. | |
| 2022-10-19 |
Decision on motion to extend time, Br, UPON APPLICATION by the appellant for an order extending the time to serve and file his factum, record and book of authorities, if any, until after the Court has rendered its decision on the application for leave to appeal filed in this matter; AND THE MATERIAL FILED having been read; AND NOTING the consent of the respondent; IT IS HEREBY ORDERED THAT: The motion is granted. The appellant may serve and file his factum, record and book of authorities, if any, within eight (8) weeks of the date of the judgment on the application for leave to appeal. Should the application for leave to appeal be granted, the appellant shall be permitted to serve and file a single factum, addressing both the issues on the appeal as of right and the issues on the leave application, not to exceed forty (40) pages in length. Granted |
|
| 2022-10-19 | Submission of motion to extend time, Br | |
| 2022-10-18 | Correspondence received from, (Letter Form), Respondent, RE: Consent of Motion for an extension of time., (Printed version due on 2022-10-25) | His Majesty the King |
| 2022-10-17 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2022-10-17 | Appeal hearing, Tentatively set to be scheduled in the Spring 2023 session. | |
| 2022-10-14 | Letter acknowledging receipt of a complete application for leave to appeal, FILE OPENED 2022-10-14 | |
| 2022-10-11 | Motion to extend time, (Letter Form), Missing: Filing Fee, Incomplete, (Printed version filed on 2022-10-12) | Don Johnson |
| 2022-09-28 | Certificate (on limitations to public access), 23A | Don Johnson |
| 2022-09-28 | Application for leave to appeal, (Book Form), Completed on: 2022-10-14, (Printed version filed on 2022-10-04) | Don Johnson |
| 2022-08-29 | Letter acknowledging receipt of a notice of appeal, FILE OPENED 2022-08-29 | |
| 2022-08-26 | Certificate (on limitations to public access), (Letter Form), (Printed version filed on 2022-08-31) | Don Johnson |
| 2022-08-26 |
Notice of appeal, (Letter Form), required: - CA order (rec'd 2022-08-31), Completed on: 2022-09-02, (Printed version filed on 2022-08-31) |
Don Johnson |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Johnson, Don | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| His Majesty the King | Respondent | Active |
Counsel
Party: Johnson, Don
Counsel
Tania Bariteau
302 - 559 College Street
Toronto, Ontario
M6G 1A9
Telephone: (416) 304-1414
FAX: (416) 304-1345
Email: derstine@derstinepenman.com
Agent
340 Gilmour Street
Suite 100
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: His Majesty the King
Counsel
720 Bay Street
10th Floor
Toronto, Ontario
M7A 2S9
Telephone: (416) 326-4600
FAX: (416) 326-4656
Email: susan.reid@ontario.ca
Agent
World Exchange Plaza
100 Queen Street, suite 1300
Ottawa, Ontario
K1P 1J9
Telephone: (613) 787-3562
FAX: (613) 230-8842
Email: neffendi@blg.com
Summary
Keywords
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?
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
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.
Lower court rulings
Ontario Superior Court of Justice
CR-14-40000523-000
Conviction by jury of two counts of first degree murder
Court of Appeal for Ontario
2022 ONCA 534, C66280
Appeal dismissed
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available