R. v. Levy (T.R.), 2016 NSCA 45

• Judge: Beveridge, Scanlan and Van den Eynden, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 01, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 45;(2016), 374 N.S.R.(2d) 251 (CA)

R. v. Levy (T.R.) (2016), 374 N.S.R.(2d) 251 (CA);

    1178 A.P.R. 251

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JN.004

Terry Roy Levy (appellant) v. Her Majesty the Queen (respondent)

(CAC 439723; 2016 NSCA 45)

Indexed As: R. v. Levy (T.R.)

Nova Scotia Court of Appeal

Beveridge, Scanlan and Van den Eynden, JJ.A.

June 1, 2016.

Summary:

The accused shot and killed his daughter's common-law husband. A jury found him guilty of second degree murder. The accused pleaded self-defence. The accused appealed, arguing that the trial judge misdirected the jury on the intent required for murder and on self-defence.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial. The trial judge misdirected the jury on both the intent required for murder and on self-defence. Combined with other shortcomings, this was not a proper case to invoke s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the errors.

Criminal Law - Topic 1280

Murder - Provocation - General principles - The Nova Scotia Court of Appeal stated that "Provocation is a partial defence to culpable homicide that would otherwise be murder. If there is an air of reality to the defence, the Crown is required to disprove one of the elements beyond a reasonable doubt. If it cannot, then the verdict is one of manslaughter. Provocation presumes that the accused intended to cause death or serious bodily harm that he knew was likely to cause death and was reckless whether death ensued-but the accused did so suddenly, in reaction to provocative conduct before there was time for his passion to cool. If the Crown establishes beyond a reasonable doubt that a murder is planned and deliberate, as those requirements have been defined in the authorities, it is difficult to see how the partial defence of provocation could play any realistic role as a defence. Of course, even if the statutory defence of provocation fails, provocative words or conduct would still be relevant for a jury to consider in determining whether they were satisfied beyond a reasonable doubt that the accused actually planned and deliberated the murder." - See paragraphs 81 to 82.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - [See Criminal Law - Topic 4356 ].

Criminal Law - Topic 4293.1

Procedure - Trial judge - Duties and functions of - Jury trials - [See Criminal Law - Topic 4356 ].

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - The accused shot and killed the victim (daughter's common-law husband) - The victim previously beat the accused - After the most recent assault, the accused loaded his shotgun and headed for the victim's work site, but turned around - He called his daughter to find out why the victim assaulted him - The victim overheard and was angry - The accused allegedly challenged the victim with the intention to "finish this once and for all" - The accused waited on his front steps with a loaded shotgun - As the victim advanced towards the accused, the accused shot him - The accused was charged with first degree murder - The accused pleaded self-defence - A jury convicted him of second degree murder - The accused appealed on the ground that the trial judge misdirected the jury on the requisite intent for second degree murder - The Nova Scotia Court of Appeal allowed the accused's conviction appeal and ordered a new trial for second degree murder - The trial judge erred in instructing the jury intent was established if they were satisfied that the accused meant to cause bodily harm that he knew was likely to cause death "or" was reckless whether death ensued - The correct instruction was whether the accused meant to cause bodily harm that he knew was likely to cause death "and" was reckless whether death ensued - The jury's confusion on the issue was evident where they specifically asked for clarification on the issue of intent - The trial judge's redirection contained the same error - The trial judge never provided the jury with a copy of s. 229(a) of the Criminal Code, nor did the trial judge correctly instruct the jury on intent elsewhere in his instructions - The court declined to invoke s. 686(1)(b)(iii) to dismiss the appeal notwithstanding the error - The jury sought help in understanding the proper sequencing of their adjudicative function - That did not happen - Given the jury's confusion on the issue of intent, and additional error in instructing the jury on self-defence (failure to review and relate to the jury the evidence relevant to self-defence and failure to explain the elements of the defence), the errors were not harmless and the evidence was not so overwhelming that the jury would inevitably have convicted the accused but for the errors - See paragraphs 47 to 174.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 4356 ].

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - [See Criminal Law - Topic 4356 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - The Nova Scotia Court of Appeal stated that "The law is clear, where a jury asks for guidance about an area of the law that is troubling them, the trial judge is obliged to provide a timely, complete, careful and legally correct response" - See paragraph 53.

Criminal Law - Topic 4955

Appeals - Indictable offences - New trials - Grounds - Cumulative effect of errors - [See Criminal Law - Topic 4356 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 4356 ].

Counsel:

Roger Burrill, for the appellant;

Mark Scott, Q.C., for the respondent.

This appeal was heard on March 29, 2016, at Halifax, N.S., before Beveridge, Scanlan and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal.

On June 1, 2016, Beveridge, J.A., delivered the following judgment for the Court of Appeal.