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

Monday, February 24, 2020 @ 10:53 AM  


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Appeal by the accused from conviction for manslaughter. The appellant was charged with second degree murder. The victim was an IV drug user. The appellant confronted the victim about manipulating the appellant’s cell phone. The appellant alleged the victim produced a hypodermic needle with the uncovered tip visible and claimed to have HIV. When the victim lunged at him with a hypodermic needle, the appellant fatally stabbed him. At trial, the appellant argued self-defence. The appellant argued the trial judge erred in his instructions to the jury on self-defence.

HELD: Appeal allowed. New trial ordered. The trial judge’s instructions on the reasonableness element in s.34(1)(c) of the Criminal Code were sufficient to meet the functional test and the absence of a Baxter instruction, given the circumstances of this case, was not a legal error that required intervention. No error arose from the fact that the trial judge’s instructions to the jury did not limit or further clarified the scope of “nature and proportionality” in s. 34(2)(g). The trial judge erred, however, by misdirecting the jury about the nature of the verdict it was required to return if the Crown failed to disprove self-defence. The trial judge was required to instruct the jury that if the appellant acted in lawful self-defence, he was entitled to an outright acquittal, not just an acquittal on the charge of second degree murder. The trial judge provided inconsistent and confusing instructions in this respect, at various points incorrectly telling the jury that self-defence entitled the appellant only to an acquittal on the charge of second degree murder, and at other times correctly instructing the jury that self-defence was a complete defence that warranted a full acquittal. This inconsistent messaging about the verdict that must result if the Crown failed to disprove self-defence continued throughout the charge. The decision tree later given to the jury provided a legally correct outline of the path the jury was to follow in reaching a verdict, and the available outcomes along the way, but the trial judge provided no further explanation or instruction to the jury about the use of the decision tree or its purpose. In response to a question from the jury, the trial judge again incorrectly stated the law regarding the verdict the jury was required to return if self-defence was not disproved.

R. v. Robertson, [2020] S.J. No. 15, Saskatchewan Court of Appeal, L.M. Schwann, R. Leurer and J.D. Kalmakoff JJ.A., January 17, 2020. Digest No. TLD-February242020001