R. v. Demaria, (1984) 1 O.A.C. 348 (CA)

• Judge: Howland, C.J.O., Dubin and Weatherston, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 16, 1983
• Jurisdiction: Ontario
• Citations: (1984), 1 O.A.C. 348 (CA)

R. v. Demaria (1984), 1 O.A.C. 348 (CA)

MLB headnote and full text

R. v. Demaria

Indexed As: R. v. Demaria

Ontario Court of Appeal

Howland, C.J.O., Dubin and Weatherston, JJ.A.

February 1, 1984.

Summary:

The accused was charged with first degree murder and convicted of second degree murder. The accused's defences were lack of volition, self-defence and provocation. The accused appealed on the ground, inter alia, that the trial judge misdirected the jury respecting the defences of voluntariness and provocation.

The Ontario Court of Appeal upheld the jury charge and dismissed the appeal.

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General - The Ontario Court of Appeal stated that to reduce murder to manslaughter because of provocation, the accused's response need not be proportionate to the victim's wrongful act or insult - However, in determining whether the accused was provoked, the jury could consider the nature of the response - See paragraphs 20 to 22.

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - The accused was convicted of second-degree murder - The accused alleged that the trial judge misdirected the jury (on provocation) that before they could find a verdict of manslaughter, the force used by the accused must be proportionate to the provocation - The Ontario Court of Appeal reviewed the jury charge and upheld it, where the matter of "proportionality" was mentioned only as a factor for consideration in determining whether the accused was provoked - See paragraphs 16 to 25.

Criminal Law - Topic 4351

Procedure - Charge or directions to jury - Directions regarding burden of proof and reasonable doubt - The accused complained that the trial judge's jury charge respecting the issue of voluntariness had the effect of shifting the onus of proving lack of volition to the accused - The Ontario Court of Appeal reviewed the charge and held that it clearly established for the jury that the Crown had the onus of proving intention beyond a reasonable doubt - See paragraphs 10 to 15.

Criminal Law - Topic 4640

Procedure - Mistrials - Jury trial - Jurisdiction of judge to grant mistrial - Irrelevant evidence was introduced at a murder trial - The trial judge refused to order a mistrial and instead carefully instructed the jury to disregard the evidence - The Ontario Court of Appeal held that any possible prejudice to the accused was remedied by the instructions and refused to interfere with the judge's discretion - See paragraphs 26 to 28,

Cases Noticed:

R. v. Linton, 93 C.C.C. 97, refd to. [para. 21].

Taylor v. The King, [1947] S.C.R. 462, refd to. [para. 23].

Counsel:

Alan D. Gold, for the appellant;

Edward Then, Q.C., for the respondent.

This appeal was heard before Howland, C.J.O., Dubin and Weatherston, JJ.A., of the Ontario Court of Appeal on September 16, 1983. The decision of the Court of Appeal was delivered by Dubin, J.A., and released on February 1, 1984.