Reasons for judgment — Fish J. (McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ. concurring)
Fish J. — The appellant was convicted at trial of first degree murder. We agree with the Court of Appeal that this verdict cannot stand since the charge to the jury was fatally flawed.
The reasons given by the Court of Appeal in its brief judgment delivered orally would alone require that the appellant’s conviction by the jury be set aside: [2003] Q.J. No. 14846 (QL). This should not be taken as a rejection by the Court of Appeal of the other grounds raised by the appellant in that Court, and again here.
In particular, we agree with the appellant that the trial judge erred in his instructions concerning the causation requirement set out in s. 231(5) of the Criminal Code , R.S.C. 1985, c. C-46 . Speaking for the Court in R. v. Harbottle, [1993] 3 S.C.R. 306, Cory J. stated (at pp. 323-24):
The consequences of a conviction for first degree murder and the wording of the section are such that the test of causation for s. 214(5) [now s. 231(5)] must be a strict one. In my view, an accused may only be convicted under the subsection if the Crown establishes that the accused has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of the death.
This requirement was not made clear to the jury. Having concluded that the appellant’s conviction for first degree murder could not stand for the reasons mentioned in its judgment, the Court of Appeal evidently found it unnecessary to add that the verdict could not stand for this reason as well.
The Court of Appeal set aside the appellant’s conviction for first degree murder and, by virtue of s. 686(3) of the Code, substituted a conviction for second degree murder.
A properly instructed jury, acting reasonably, could certainly have returned a verdict of second degree murder in this case. We are unable to say, however, that no other verdict would be reasonable on the facts as we have them. Taking into account all of the circumstances, we therefore think it preferable to order a fresh trial on the original indictment, leaving it open to the Crown to exercise its discretion in this regard.
Accordingly, the appeal and cross-appeal are both allowed in part and a new trial is ordered on a charge of first degree murder.
Cases cited
- R. v. Harbottle 23037-1993-09-30 ¶ 3