CITATION: R. v. [REDACTED], 2011 ONSC 2377
COURT
FILE NO.: CRIMJ(P) 3908/09
DATE: 201100509
ONTARIO
SUPERIOR COURT OF JUSTICE
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B E T W E E N:
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HER MAJESTY THE QUEEN
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S. Sherriff and K. Holmes, for the Crown
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- and -
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[REDACTED]
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M. Friedberg and A. Bugo, for the
Defendant
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Defendant
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HEARD: April
13, 2011
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SPROAT J.
[1]
At the outset of trial Mr. [REDACTED] indicated that
he pleaded guilty to manslaughter and not guilty of first degree murder. Mr.
[REDACTED] was found guilty of first degree murder.
[2]
To the credit of counsel, an extensive Agreed
Statement of Facts was filed which included the following:
8. Ms. Lavalley was
sexually assaulted by Mr. [REDACTED] inside her apartment.
9. During this
incident, Mr. [REDACTED] tied Ms. Lavalley’s hands behind her back with a shirt.
10. Mr. [REDACTED] caused
the death of Ms. Lavalley during or after sexually assaulting her.
[3]
Mr. Sherriff made two related submissions with
respect to structuring the charge to jury. First, second degree murder should
not be left to the jury because if the jury concluded that Mr. [REDACTED] had the state
of mind required for murder the admissions were such that the jury would
necessarily find him guilty of first degree murder. Secondly, given the
admissions, the jury must find Mr. [REDACTED] guilty of manslaughter. As such, the
jury should not be instructed that they have the option of finding Mr. [REDACTED] not
guilty of manslaughter.
[4]
In the course of argument Mr. Sherriff drew the
following distinction. He was not asking for what would amount to a directed
verdict because that would be inappropriate. He was asking, however, for the
jury to be instructed that certain issues would be “off the table”. For
example, the jury would not be given the option of finding Mr. [REDACTED] not guilty
of manslaughter. Further, if the jury was satisfied beyond a reasonable doubt
that Mr. [REDACTED] had the state of mind required for murder the jury would not be
provided with the option of finding him not guilty of first degree murder.
[5]
The position of defence counsel, relying upon R.
v. Krieger, 2006 SCC 47 (CanLII), [2006] 2 S.C.R. 501, was that the jury should be left with
possible verdicts of not guilty, guilty of manslaughter, guilty of second
degree murder and guilty of first degree murder.
[6]
I accepted the position of the defence and
charged the jury accordingly and in the customary manner. These are my
reasons.
[7]
Criminal Pleadings & Practice in Canada (2nd Edition), authored by Ewaschuk J. of this court,
states:
16:5242 As a general rule, a trial judge
should instruct the jury as to availability of second degree murder as a
“lesser and included offence” in first degree murder.
[8]
Following this paragraph Ewaschuk J. does make
reference to R. v. Simmonds 2002 BCCA 332 (CanLII), (2002), 165 C.C.C. (3d) 10 (B.C.C.A.) and R.
v. Chenier 2006 CanLII 3560 (ON C.A.), (2006), 205 C.C.C. (3d) 333 (Ont.C.A.). In Simmonds the
court referred to both counsel at trial persuading the judge to not leave the
possibility of second degree murder with the jury and this was not a ground of
appeal. Chenier involved an alleged contract killing. It is not clear
what position counsel at trial took. The court dismissed this ground of
appeal, in one paragraph, on the ground there was no air of reality to second
degree murder and that the only two verdicts open were not guilty and guilty of
first degree murder. The court did state that the trial judge was “correct” to
not have left second degree murder with the jury.
[9]
In Krieger, the accused was charged with
unlawful production of cannabis. Mr. Krieger suffered from a debilitating
illness and had grown marijuana for his own consumption and provided it to
others for their use. Mr. Krieger admitted all of the elements of the offence
and took the position that the only issue was the defence of necessity. The
trial judge correctly determined that there was no air of reality to the
defence of necessity and did not put the defence to the jury.
[10]
In this context, the trial judge instructed the
jury that it must convict and then asked the jury to retire to the jury room
and return to the court with a verdict of guilty.
[11]
The Supreme Court of Canada quashed the
conviction and ordered a new trial. Fish J. reasoned as follows:
22. A clear distinction must in any
event be drawn between admissions of fact covering all of the prosecution’s
allegations and the ultimate question of guilt or innocence that is answered by
the verdict alone. This was well explained by Sir Patrick (later Lord)
Devlin:
It [referring to the
British precedent of Stonehouse v. D.P.P.] could not be said that the
whole question of innocence or guilt was taken out of the jury’s hands. If it
had been, would it have made a difference? Logically it should not. If a single
issue can be withdrawn from the jury on the ground that the facts relating to
it lead in the eyes of the judge to one conclusion only, then, if the same
thing can be said of all the other issues, they too should be withdrawn. But
suppose that at the end of the evidence in such a case the judge was, without
summing up at all, simply to direct the verdict of Guilty in the same way as he
directs a verdict of Not Guilty when the prosecution has failed to make out a
case. This would mean that there had not been even the semblance of a trial
by jury. Whatever formula may be devised to facilitate the application of
the proviso, the statutory requirement is that there should be no miscarriage
of justice. It would be going very far to say that there was no miscarriage in
a process which deprived an accused entirely of his constitutional right to
trial by jury.
(“The Judge and the Jury”,
in The Judge (1979), at pp. 142-43)
And later:
In my idea no conviction
can stand that is not based on the verdict of a jury given after a full and
proper trial. No matter that the guilt of the accused cries out to the heavens
through the voices of all the judges of England. This is the first and
traditional protection that the law gives to an accused. The second and more
recent protection, given in the way I have chronicled, is that even such a
verdict will not be enough if on the evidence the appellate judges find the
lurking doubt which they consider that the jury has missed. But the second is
an addition to the first and not a substitute for it. [p. 157]
23 I share these views and consider
them to be a complete answer to both points raised by the Crown.
24 The overwhelming nature of the evidence
can hardly justify a directed verdict of guilty. When, if not in such
cases, would a verdict of guilty be directed? Would it be permitted
whenever the evidence is overwhelming in the eyes of the judges?
Under our Constitution, the plain answer to this last question is “no”.
25 And finally, little needs to be
said about the proviso set out in s. 686(1)(b)(iii) of the Criminal
Code. That provision may perhaps be applied where there has been an
imperfect trial by jury but not where, as here, there has in effect been no
trial by jury at all.
V.
26 In another era, the usual enticement to
quick agreement consisted of locking the jury up without “meat, drink, fire and
tobacco”. Jurors who gave verdicts thought unacceptable by the court were
punished in Star Chamber or by the trial judge himself: see Devlin, Trial by
Jury, at pp. 68-69 and 76. In Bushell’s Case (1670), 6 St. Tr.
999, the jurors were fined and imprisoned for their verdict of “not guilty”.
27 It has since then been well
established that under the system of justice we have inherited from England
juries are not entitled as a matter of right to refuse to apply the law
— but they do have the power to do so when their consciences permit of
no other course.
28 The matter was put this way long
ago by Lord Mansfield in R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824
(cited by Dickson C.J. in R. v. Morgentaler, 1988 CanLII 90 (S.C.C.), 1988 CanLII 90 (S.C.C.), [1988] 1 S.C.R.
30, at p. 78):
It is the duty of the Judge, in all cases of general
justice, to tell the jury how to do
right, though they have it in their power to do wrong, which is a matter
entirely between God and their own consciences.
29 In this case, with the sole
intention of “showing the jury how to do right”, the trial judge unfortunately
deprived the jurors of the responsibility that was by law theirs alone.
The appellant was thereby deprived of his constitutional right, in virtue of s.
11(f) of the Charter, “to the benefit of trial by jury”.
[12]
I cannot draw an intelligible distinction between
directing a jury to convict of manslaughter and taking a not guilty of
manslaughter verdict off the table. Assuming the jury found that Mr. [REDACTED] had
the state of mind required for murder, it is correct that he essentially
admitted the further elements constituting first degree murder. Using the
language of Fish J., as to manslaughter and the additional elements to make
murder first degree murder Mr. [REDACTED] made, “admissions of fact covering all of
the prosecutions’ allegations”. It remains, to again quote Fish J., that the
“ultimate question of guilt or innocence” requires the verdict of the jury.
[13]
The situation might well be different in a case in
which the defence agrees with the Crown that second degree murder should not be
left with the jury in order to avoid the possibility of the jury reaching an
illogical compromise verdict. In light of Krieger and the defence
position, however, I could not justify taking away from the jury the possible
verdicts of not guilty and guilty of second degree murder.
_________________________
SPROAT J.
Released: May 9, 2011
CITATION: R. v. [REDACTED], 2011 ONSC 2377
COURT
FILE NO.: CRIMJ(P) 3908/09
DATE: 20110509
|
ONTARIO
SUPERIOR
COURT OF JUSTICE
B E T W E E
N:
HER MAJESTY THE
QUEEN
-
and –
[REDACTED]
Defendant
SPROAT J.
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Released: May 9, 2011