Court of Appeal for Ontario overturns murder convictions

Big appellate win in R v Mohamed, 2025 ONCA 611. Three first-degree murder convictions overturned because the jury was given too broad an instruction on the notoriously tricky “common unlawful purpose” route to party liability.

Anyone who commits an offence is guilty as a principal. Anyone who knowingly helps the principal to commit the offence is guilty as an aider. Someone who neither commits the offence charged nor helps the principal commit that offence can still be found guilty under s. 21(2) of the Criminal Code, which criminalizes foreseeable but incidental criminal acts committed in the course of a joint criminal enterprise. For example, if you plan a bank robbery with a group of armed men (“the primary offence”), and one of those men encounters resistance and kills a teller in the course of the robbery (“the incidental offence”), you could be found guilty of that murder—even though you did not plan to kill and did not in fact kill anyone.

This case is different. The Crown’s theory was that this was a classic first-degree murder. This was a planned, deliberated, and intentional killing. Since this was the common unlawful purpose, if it was murder, nothing about it was incidental. It was wrong for the trial Crown to invite the trial judge to expand liability for first-degree murder under s. 21(2).

As an appeal lawyer I often see trial Crowns give in to this temptation. I understand the attraction: you want to give the jury as many pathways to conviction as possible. But that over-reach can compromise verdicts in very serious cases like this, where an innocent man was gunned down in an apparent gang execution. Have confidence in your theory and ask that the jury only be instructed on the path to liability that actually fits the facts. Not only does this avoid a potential appeal, it also strikes me as better advocacy.

These are very challenging cases. High stakes, a gargantuan record, and a court highly disposed to preserve trial verdicts. Outstanding work by counsel Anil Kapoor, Alexa J Ferguson, Erin Dann, Paul Socka, Maija Martin, and Stephanie Brown.