Digest: R v Nicholson, 2018 SKCA 62

• Date: August 08, 2018

Reported as: 2018 SKCA 62

Docket Number: CACR 3852|CACR 2854 , CA18103

Court: Court of Appeal

Date: 2018-08-08

Judges:

• Jackson
• Herauf
• Schwann

Subjects:

• Criminal Law � Appeal � Conviction
• Criminal Law � Conspiracy � Elements
• Criminal Law � Defences � Conspiracy � Pretending
• Criminal Law � Jury Trial � Instructions to Jury
• Criminal Law � Jury Trial � Jury Interference

Digest: The appellants were found guilty of two counts of conspiracy to commit murder contrary to s. 465(1)(a) of the Criminal Code. One count was in relation to A.�s spouse, J., and the other was in relation to C.�s spouse, B. B. began leaving a recording device in her home when she suspected C. was having an affair. In a July 1 recording, the appellants talked about killing their spouses. At trial, the Crown�s evidence consisted of: 1) the July 1 recording; 2) statements given by the appellants; and 3) recorded conversations between undercover officers and the appellants. The appellants did not testify at their trial. C. indicated to an undercover officer that he knew his wife was recording him, so he discussed the murders to give his family something to talk about. He said that he had no intention of committing murder. After her arrest, A. admitted that there had been an earlier conversation about taking the lives of their spouses, but she said she did not intend to carry it out. The appellants appealed on the basis that the trial judge erred in the charge to the jury. The three key issues from the grounds of appeal were: 1) did the trial judge adequately charge the jury with respect to the appellants� defence that C. did not have a genuine intention to agree to commit murder: 2) did the trial judge properly explain the relationship between proof by circumstantial evidence and the requirement of proof beyond a reasonable doubt; and 3) did the trial judge properly address the question of inconsistent verdicts and the test in Carter? There were also several unsuccessful grounds of appeal such as arguments regarding jury interference.
HELD: The appeals were allowed with respect to the first two issues and a new trial was ordered. The appeal court also found error in relation to the trial judge�s handling of some aspects of the third issue but would not order a new trial in relation to it. The key issues were determined as follows: 1) the actus reus of conspiracy is the agreement, which then makes the distinction between the mens rea and actus reus artificial. A genuine intention is required for the mens rea, pretending to agree is a defence. The offence is only made out where there are at least two people that intend to agree and intend to carry out the common purpose. The appeal court considered three sub-issues with respect to the mens rea: a) are there two aspects of the mens rea that are required to be proven, i.e. an intention to agree and an intention to put the common design (or purpose) into effect. The Supreme Court of Canada clearly stated that the mental element of conspiracy divides itself into an intention to agree and an intention to carry out the unlawful act; b)...