R. v. Clarke, (1973) 4 Nfld. & P.E.I.R. 550 (NFCA)

JudgeFurlong, C.J., Puddester and Mifflin, JJ.
CourtNewfoundland Court of Appeal
Case DateJanuary 23, 1973
JurisdictionNewfoundland and Labrador
Citations(1973), 4 Nfld. & P.E.I.R. 550 (NFCA)

R. v. Clarke (1973), 4 Nfld. & P.E.I.R. 550 (NFCA)

MLB headnote and full text

R. v. Clarke

Indexed As: R. v. Clarke

Newfoundland Supreme Court

On Appeal

Furlong, C.J., Puddester and Mifflin, JJ.

January 23, 1973.

Summary:

This appeal arose out of a charge of murder against the accused appellant. The accused shot and killed one of four loud and boisterous drunken men who approached her house in error late at night. The accused ordered the men to leave, which they did while verbally abusing the accused. As they retreated, the accused fired a rifle at them, killing one. The accused was charged and convicted of murder before a judge and jury. The accused appealed. The appeal court, Furlong, C.J., dissenting, allowed the appeal in part and substituted a conviction for manslaughter.

The appeal court held that the trial judge did not adequately instruct the jury on the defences of self-defence and defence of property and failed to direct the jury that they could return a verdict of manslaughter if the Crown failed to prove the charge of murder. See paragraphs 27 to 31.

The appeal court held that the trial judge also erred in his charge to the jury in leaving the impression that the question of provocation was a question of law for the judge to decide instead of a question of fact for the jury pursuant to section 215(3) of the Criminal Code of Canada. See paragraphs 28 to 31.

The appeal court held that pursuant to section 613(1)(b)(i) of the Criminal Code of Canada the appeal court could substitute a conviction on a charge of manslaughter, since it was inconceivable that the accused would be acquitted on a new trial. See paragraphs 34 to 39 and 41 to 46.

Furlong, C.J., dissenting, would have dismissed the appeal. Furlong, C.J., stated that the trial judge adequately directed the jury on the defences of self-defence and defence of property. Furlong, C.J., stated that the trial judge was correct in stating in his charge to the jury that the question of whether there was evidence to support a defence of provocation for the judge and the question of whether the evidence of provocation was sufficient to establish the defence was a question for the jury. Furlong, C.J., further stated that the trial judge was correct in directing the jury that there was no evidence to support a defence of provocation.

Criminal Law - Topic 1285

Murder - Provocation - Charge to jury - Criminal Code of Canada, section 215(3) - Newfoundland Court of Appeal held that trial judge erred in directing the jury in his charge that the question of provocation was a question of law for the judge to decide and in withdrawing the defence of provocation from the jury - Paragraphs 28 to 31.

Criminal Law - Topic 4370

Procedure - Charge to jury in murder trial on self-defence - Newfoundland Court of Appeal held trial judge inadequately instructed the jury on the defences of self-defence and defence of property - Paragraphs 27 to 31.

Criminal Law - Topic 4355

Procedure - Charge to jury in murder trial respecting included offence of manslaughter - Newfoundland Court of Appeal held it was a misdirection for the trial judge to fail to instruct the jury that it could return a verdict of manslaughter if the Crown failed to prove the charge of murder - Paragraphs 32 and 41 to 45.

Criminal Law - Topic 5055

Appeals - Indictable offences - Murder - Substitution of verdict of manslaughter for murder - Criminal Code of Canada, section 613(1)(b)(i) - Newfoundland Court of Appeal set aside a conviction on a charge of murder, but stated that the accused could not possibly be acquitted on a new trial - Appeal Court substituted verdict of manslaughter - Paragraphs 34 to 39 and 41 to 46.

Cases Noticed:

R. v. Phillips, [1969] A.C. 138, refd to.

Lee Chun Chuen v. The Queen, [1962] 3 W.L.R. 146 (P.C.), refd to.

R. v. Nesbitt, [1965] 2 C.C.C. 360, refd to.

R. v. Knawchuk, 75 C.C.C. 27, refd to.

Holmes v. Director of Public Prosecutions, [1946] 2 All E.R. 126, refd to.

R. v. Colpitts, [1966] 1 C.C.C. 146, refd to.

R. v. Nantais, [1966] 2 O.R. 246, folld.

R. v. Ruggiero, [1972] 3 O.R. 523, folld.

Statutes Noticed:

Criminal Code of Canada, sect. 34, sect. 37, sect. 41, sect. 205(1), sect. 205(5), sect. 212(a), sect. 214, sect. 215, sect. 217, sect. 613(1)(b)(i), sect. 613(1)(b)(iii), sect. 613(3).

Counsel:

F. Bruce Winsor, for the respondent;

R. Halley, for the appellant.

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