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PROCEDURE - Trial judge’s duties - Charge or directions

Wednesday, July 03, 2019 @ 8:07 AM  


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Appeal by Srun from his convictions, by jury, for second degree murder and attempted murder. During an altercation between several men outside of a restaurant during a party, two men were stabbed. One victim died. The other victim was seriously injured. The second victim testified that the only person he saw with a knife was the appellant, who pursued him and the deceased. Other party guests testified they observed the appellant stab the deceased. Video surveillance showed the appellant initiate the fight. Four others jointly tried with the appellant were found not guilty of manslaughter and aggravated assault. The trial judge admitted the recorded statement to police of co-accused Heang but ruled it was admissible only in relation to its maker. The trial judge provided a copy of his jury charge to counsel and invited submissions from them before he gave his final instructions. He directed the jury on intoxication but concluded there was no air of reality to self-defence and did not instruct the jury on the statutory partial defence of provocation.

HELD: Appeal dismissed. The trial judge did not err in his instructions to the jury about the mental element required to establish the appellant’s guilt for murder. None of the jury addresses contained any suggestion the appellant was anything other than the one and only principal. The inadvertent misstatement that s. 21(2) of the Criminal Code applied to all counts was a harmless error, devoid of any prejudicial potential. The trial judge did not err by failing to give a rolled up instruction. Taken as a whole, the instructions to the jury repeatedly emphasized their obligation to consider all the evidence. The trial judge did not err in holding Heang’s statement was only admissible in relation to Heang. There was no support for the proposed use of the evidence in relation to the appellant through the principled exception to the hearsay rule. It was not clear the trial judge misstated one witness’s evidence but even if he did, it was not an important piece of evidence relating to the determinative issue.

R. v. Srun, [2019] O.J. No. 2799, Ontario Court of Appeal, A. Hoy A.C.J.O., D. Watt J.A. and E.F. Then J. (ad hoc), May 31, 2019. Digest No. TLD-July12019006