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PROCEDURE - Trial judge’s duties - Charge or directions - Defences

Friday, February 01, 2019 @ 8:47 AM  


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Appeal by the accused from conviction for second degree murder. The appellant and his friends left a house party.  As they were leaving, one of the partygoers punched two of the appellant’s friends. When one of the friends damaged a car mirror, between 20 and 70 party guests confronted the appellant’s group on the street. The confrontation resulted in violence. After one guest struck the appellant’s friend with a tree stake, the appellant produced a pocket knife and stabbed one of the partygoers causing his death. The appellant provided an inculpatory statement to police hours after repeatedly asserting his right to silence. The trial judge concluded the appellant did so as the result of seeing a video of his girlfriend disclosing to the police inculpatory admissions he allegedly made to her following the stabbing. The trial judge found the appellant’s statement was voluntary as there was no evidence that the police made any threats or offered any inducements to the appellant in exchange for a statement. The appellant argued the trial judge erred in finding that his statement to the police was voluntary, by refusing to charge the jury on the defence of others, by giving an unbalanced review of the evidence in his instructions on self-defence and by effectively taking away the defence of provocation from the jury.

HELD: Appeal allowed. New trial ordered. The trial judge erred by failing to identify improper threats, inducements, and a quid pro quo offered by the interviewing officer and by failing to consider whether, in the face of those threats and inducements, the Crown had satisfied its onus of proving that the appellant’s statement was voluntary. The interviewing officer’s statements to the appellant during the interview went well beyond saying the appellant might adopt a trial strategy of not testifying and crossed the line into undermining the legal advice the appellant received to remain silent. The officer’s statements suggested the appellant would not be believed if he did not tell his side of the story to the police and that a trial court would see him, on video, refusing to comment. The interviewing officer’s comments constituted both a threat and an inducement as they suggested negative legal consequences if the appellant failed to speak and positive consequences if he spoke. The trial judge erred by failing to instruct the jury on defence of others. In concluding there was no air of reality to the defence of others, the trial judge erred in focusing on what the appellant said in cross-examination. The fact that the trial judge referred to the first assault on the appellants’ friends as part of the context for his instructions on self-defence did not obviate the requirement to charge on defence of others. The trial judge’s instructions to the jury on self-defence were unbalanced. Not only did the trial judge indicate to the jury that he did not find the appellant’s testimony about his injuries credible, the trial judge also failed to refer to evidence that supported the appellant’s version of events. His instructions to the jury virtually eliminated the element of suddenness from the defence of provocation although there was evidence capable of supporting a finding of suddenness.

R. v. Othman, [2018] O.J. No. 6751, Ontario Court of Appeal, J.M. Simmons, R.G. Juriansz and M.L. Benotto JJ.A., December 24, 2018. Digest No. TLD-January282019010