Olbey v. R., [1980] 1 S.C.R. 1008 (1979)
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Olbey v. R., [1980] 1 S.C.R. 1008 (1979)
Supreme Court of Canada
Olbey v. R., [1980] 1 S.C.R. 1008Date: 1979-12-21Leonard George Olbey (Plaintiff) Appellant;andHer Majesty The Queen (Defendant) Respondent.1979: May 30; 1979: December 21.Present: Laskin C.J. and Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ.ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.Criminal law-Murder-Non-capital murder-Defences-Provocation not raised by defence-Duty of trial judge to instruct jury as to provocation-Failure of trial judge to instruct on influence of drugs or alcohol-Refusal by Court of Appeal of motion to adduce fresh evidence-Discretion of Court of Appeal-Criminal Code, ss. 215, 610, 613(1)(b)(iii).Criminal law-Jury-Evidence-Readback to jury after commencement of deliberations-Error in permitting readback of direct examination only-Qualifying evidence not read back-Criminal Code, s. 613(l)(b)(iii).The appeal is against a conviction for non-capital murder and comes to the Supreme Court of Canada by virtue of s. 618(1)(a) on two grounds raised in dissent in the Court of Appeal. First, that the learned trial judge's failure to direct the jury that, if there was a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control, they should consider the influence of drugs on the accused in deciding whether in fact he was or might have been responding to provocation was non-direction amounting to misdirection, and, second, it could not be said in the circumstances that no substantial wrong or miscarriage of justice resulted therefrom. Leave to appeal was also given to allege error on the trial judge's part in failing to instruct the jury on the law as to the treatment of accomplices' evidence; and in failing to respond to the jury's request to have the evidence of a witness read back after they had commenced their deliberations; and further that the Court of Appeal erred in its dismissal of a motion to adduce fresh evidence, pursuant to s. 610, on the hearing of the appeal.Held (Laskin C.J. dissenting): The appeal should be dismissed.Per Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ.: At trial appellant relied upon self-defence. The defence of provocation was not argued and defence counsel did not ask the trial judge to direct the jury upon it. The defence relied on the description of events given by the appellant to support the self-defence theory. The trial judge however considered that there was evidence to support the defence of provocation under s. 2...See the full content of this document
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