CITATION: R. v. [REDACTED], [REDACTED]

COURT FILE NO.: [REDACTED]

DATE: [REDACTED]

ONTARIO

SUPERIOR COURT OF JUSTICE

RULING

WHETHER SECOND DEGREE MURDER SHOULD BE LEFT TO THE JURY – WHETHER JURY SHOULD BE INSTRUCTED THAT CERTAIN VERDICTS ARE NOT AVAILABLE GIVEN THE ADMITTED FACTS

Judge: [REDACTED].

[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. [REDACTED] was sexually assaulted by Mr. [REDACTED] inside her apartment.

9. During this incident, Mr. [REDACTED] tied [REDACTED]’s hands behind her back with a shirt.

10. Mr. [REDACTED] caused the death of [REDACTED] during or after sexually assaulting her.

[3] [REDACTED] 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 [REDACTED] 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. [REDACTED], 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 (2^nd 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. [REDACTED] 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. [REDACTED] 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 [REDACTED], the accused was charged with unlawful production of cannabis. Mr. [REDACTED] suffered from a debilitating illness and had grown marijuana for his own consumption and provided it to others for their use. Mr. [REDACTED] 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 [REDACTED] 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.

_________________________

Judge: [REDACTED]

Released: [REDACTED]

CITATION: [REDACTED]. v. [REDACTED], [REDACTED]

COURT FILE NO.: [REDACTED]

DATE: [REDACTED]

Released: [REDACTED]