R. v. Wakefield

The Court — In order to uphold the conviction for second degree murder, the majority in the Court of Appeal had to be satisfied that the trial judge found that the appellant himself had stabbed the victim. The trial judge expressly refrained from making that finding. The majority considered the evidence and found that “the conclusion that it was the appellant who inflicted the stab wounds is well founded in the evidence” (para. 29). In doing so, the majority erred by making a finding of fact that the trial judge declined to make.

In addition, if the trial judge had concluded that it was the appellant who stabbed the victim, it is unclear whether he correctly analyzed the subjective mens rea requirement for second degree murder under s. 229 (a)(ii) of the Criminal Code , R.S.C. 1985, c. C-46 . The trial judge failed to consider the crucial question of what the appellant subjectively knew and intended at the time of the stabbing (in accordance with R. v. Cooper, [1993] 1 S.C.R. 146, at p. 159). By accepting the trial judge’s statement of intent as sufficient to support the conviction for murder (para. 34), the majority further erred.

Both the appellant and the respondent advised the Court that they were content with our substituting a verdict of manslaughter instead of ordering a new trial. Accordingly, pursuant to s. 686(1) (b)(i) of the Criminal Code , the appeal is dismissed and a verdict of manslaughter is substituted, and the matter is remitted to the trial judge for sentencing.