R. v. Kelsie

Karakatsanis J. — We agree with the conclusion of the Court of Appeal that the trial judge’s instructions on party liability for first degree murder were in error. As a result, the conviction for first degree murder cannot stand.

We do not, however, agree with the Court of Appeal that the trial judge was required to charge the jury on manslaughter. While not determinative, we agree with defence counsel’s position at trial that there was no basis to leave it with the jury as an available verdict. In our view, the evidence was, at best, tenuous and speculative, and did not meet the air of reality test.

With respect to the conspiracy charge, we do not agree with the Court of Appeal. In the particular circumstances of this case, we are not persuaded that the trial judge erred in the evidence he left for the jury to consider as part of the third prong of the Carter test for the admissibility of co-conspirator hearsay (R. v. Carter, [1982] 1 S.C.R. 938). We note, in this regard, that the defence of the accused to the charge of conspiracy is that he did not know the nature and scope of the alleged conspiracy. Accordingly, we would not have interfered with the conviction for conspiracy to commit murder.

Given our conclusions, the parties agree that it would be appropriate to substitute a verdict of second degree murder in place of the verdict for first degree murder. We are satisfied that such a verdict is appropriate in the circumstances.

As a result, pursuant to s. 686(1) (b)(i) and s. 686(3) of the Criminal Code , R.S.C. 1985, c. C-46 , we would have dismissed the appeal and substituted a conviction for second degree murder.

Therefore, the appeal is allowed in part. The conspiracy conviction is restored and a second degree murder conviction is entered.

Counsel are encouraged to agree on the appropriate sentence regarding eligibility for parole. The matter is remitted to the trial court for sentencing.