The background facts
 The nature of the error alleged does not require any further reference to the evidence adduced at trial, but a brief canvass
of the positions taken by counsel at trial and what the trial judge
told the jury on the issue will be of service for the discussion that
The pre-charge conference
 At the pre-charge conference prior to closing addresses, the
trial judge provided copies of the final instructions he proposed to
give to the jury. He then invited submissions from counsel about
 The trial Crown (not Ms. Baiasu) took the position that
the appellant’s liability on the counts of second degree murder
and attempted murder, on which he alone was charged, was that
of the principal under s. 21(1)(a) of the Criminal Code. The
Crown sought an instruction on s. 21(2) on the included offence
of aggravated assault on the count charging attempted murder.
 Trial counsel for the appellant (not Mr. Lockyer or Ms.
Taché-Green) agreed that the jury should be instructed on the
bases of liability suggested by the Crown.
The closing addresses of counsel
 In his closing address, the Crown invited the jury to find
that the appellant hit the deceased over the head with beer
bottles then repeatedly stabbed him with a knife. It was the
Crown’s position that the appellant was the principal in both
counts with which he was charged and that the evidence
established the mental element required for a finding of guilt on
 Defence counsel took some issue about the adequacy of the
evidence to establish the identity of the appellant as the person
responsible for both stabbings, but acknowledged that the jury
might well find that requirement proven beyond a reasonable
doubt. He invited the jury to find the appellant not guilty of the
offences charged, but guilty of the included offences of manslaughter and aggravated assault.
The charge to the jury
 The case for the Crown against the appellant on the counts
of second degree murder and attempted murder was that he was
the sole principal, the person who actually committed each
offence to borrow the language of s. 21(1)(a) of the Criminal
Code. Only the appellant was charged with these two counts.