R. v. MacLeod (C.M.), 2014 NSCA 63

• Judge: Saunders, Beveridge and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 13, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSCA 63;(2014), 346 N.S.R.(2d) 222 (CA)

R. v. MacLeod (C.M.) (2014), 346 N.S.R.(2d) 222 (CA);

    1095 A.P.R. 222

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JN.025

Clarence Michael MacLeod (appellant) v. Her Majesty the Queen (respondent)

(CAC 410405; 2014 NSCA 63)

Indexed As: R. v. MacLeod (C.M.)

Nova Scotia Court of Appeal

Saunders, Beveridge and Farrar, JJ.A.

June 13, 2014.

Summary:

The accused was found standing over his deceased girlfriend in her apartment. He gave conflicting statements to police denying involvement in her death. First, he lied by saying that he had left the apartment and returned to find her dead. Later, he stated that he was asleep on the couch and woke to find her dead. The Chief Medical Examiner opined that death was caused by strangulation. The accused was charged with second degree murder. A defence expert (pathologist) opined that death was due to heart failure, not strangulation. The accused did not testify at his jury trial. The Crown sought to have the trial judge leave manslaughter with the jury and charge them accordingly. The accused opposed instructing the jury on manslaughter. The trial judge chose not to leave manslaughter with the jury, instructing them that they had two options: guilty of murder or not guilty. The jury found the accused guilty of murder and he was sentenced to life imprisonment without eligibility for parole for 12 years. The accused appealed, reversing his position and now arguing that the trial judge erred in not leaving manslaughter with the jury. The Crown also reversed its position, arguing that the trial judge was correct to not leave manslaughter with the jury, as there was no air of reality to the lesser offence of manslaughter.

The Nova Scotia Court of Appeal, Saunders, J.A., dissenting, allowed the appeal, quashed the conviction and ordered a new trial. The accused was entitled to have the lesser offence of manslaughter left with the jury as an option, as there was an air of reality to the verdict.

Criminal Law - Topic 1266

Murder - General principles - Jury charge - Included or alternative offences - The accused was found standing over his deceased girlfriend in her apartment - He gave conflicting statements to police denying involvement in her death - First, he lied by saying that he had left the apartment and returned to find her dead - Later, he stated that he was asleep on the couch and woke to find her dead - The Chief Medical Examiner opined that death was caused by strangulation - The accused was charged with second degree murder - A defence expert (pathologist) opined that death was due to heart failure, not strangulation - The accused did not testify at trial - The trial judge left two verdicts with the jury, being guilty or not guilty of murder - The judge declined to leave the lesser verdict of manslaughter with the jury - The accused made a strategic decision to oppose leaving manslaughter with the jury (i.e., all or nothing defence) - After the jury convicted him of murder, the accused reversed his position and appealed on the ground that manslaughter should have been left with the jury - The Nova Scotia Court of Appeal allowed the accused's appeal and ordered a new trial - The trial judge erred in not leaving manslaughter with the jury as an available verdict - First, there was sufficient evidence for the jury to find that the accused committed an unlawful act which triggered a fatal heart attack - It was open to the jury to infer that the accused strangled his girlfriend with the requisite intent for murder or that he strangled her without significant force, which triggered a heart attack (manslaughter) - If the jury had a reasonable doubt about murderous intent, but was satisfied that the accused had caused her heart attack by assaulting her, their only option was to acquit - The accused's strategic decision to oppose leaving manslaughter with the jury did not absolve the judge of his duty to leave manslaughter as an alternative verdict where there was an evidential foundation to support it - Culpable homicide that was not murder was manslaughter - The jury should have been so instructed - The court rejected the Crown's submission that the error occasioned no substantial wrong or miscarriage of justice warranting setting aside the verdict - See paragraphs 1 to 153.

Criminal Law - Topic 4302

Procedure - Trial judge - Duties and functions of - Respecting conduct of defence - [See Criminal Law - Topic 1266 ].

Criminal Law - Topic 4355

Procedure - Charge or directions - Jury or judge alone - Directions regarding included offences - [See Criminal Law - Topic 1266 ].

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 1266 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 1266 ].

Cases Noticed:

R. v. Samuels (J.G.) (2005), 198 O.A.C. 109 (C.A.), leave to appeal denied (2006), 350 N.R. 191 (S.C.C.), refd to. [para. 15].

R. v. Yumnu (I.) (2010), 269 O.A.C. 48; 2010 ONCA 637, refd to. [para. 15].

R. v. Chalmers (J.) (2009), 247 O.A.C. 250; 2009 ONCA 268, refd to. [para. 60].

R. v. Cinous (J.) (2002), 285 N.R. 1; 2002 SCC 29, refd to. [para. 61].

R. v. Mayuran (S.) (2012), 431 N.R. 232; 2012 SCC 31, refd to. [para. 63].

R. v. Cairney (M.J.) (2013), 450 N.R. 1; 561 A.R. 192; 594 W.A.C. 192; 2013 SCC 55, refd to. [para. 63].

R. v. Pappas (B.J.) (2013), 450 N.R. 37; 561 A.R. 228; 594 W.A.C. 228; 2013 SCC 56, refd to. [para. 63].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 2011 ONCA 89, refd to. [para. 66].

R. v. Wong (C.) (2006), 211 O.A.C. 201; 209 C.C.C.(3d) 520 (C.A.), refd to. [para. 75].

R. v. Creighton, [1993] 3 S.C.R. 346; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 85].

R. v Wright, [1979] 5 W.W.R. 481; 16 A.R. 474 (C.A.), refd to. [para. 90].

R. v. Stowe, [1979] 2 W.W.R. 90 (Sask. C.A.), refd to. [para. 90].

R. v. Jackson and Davy, [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161, refd to. [para. 91].

R. v. Coutts, [2006] UKHL 39, refd to. [para. 91].

R. v. E.R.M. (2002), 217 Sask.R. 259; 265 W.A.C. 259; 2002 SKCA 30, refd to. [para. 94, footnote 1].

R. v. Gardiner (J.I.) (2010), 362 N.B.R.(2d) 179; 934 A.P.R. 179; 2010 NBCA 46, refd to. [para. 94, footnote 1].

R. v. Ross (B.R.) (2012), 317 N.S.R.(2d) 243; 1003 A.P.R. 243; 2012 NSCA 56, refd to. [para. 94, footnote 1].

R. v. Pickton (R.W.) (2010), 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 95].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161, refd to. [para. 101].

R. v. Murray (E.E.) (1994), 73 O.A.C. 321; 20 O.R.(3d) 156 (C.A.), refd to. [para. 102].

R. v. Lomage (1991), 44 O.A.C. 131; 2 O.R.(3d) 621 (C.A.), refd to. [para. 102].

R. v. MacDonald (P.D.) (2008), 239 O.A.C. 199; 2008 ONCA 572, refd to. [para. 105].

R. v. Krieger (G.W.) (2006), 354 N.R. 1; 401 A.R. 381; 391 W.A.C. 381; 213 C.C.C.(3d) 303 (S.C.C.), refd to. [para. 106].

R. v. Finck (L.R.) (2008), 266 N.S.R.(2d) 171; 851 A.P.R. 171; 2008 NSCA 42, refd to. [para. 112].

R. v. Le (T.D.) (2009), 236 Man.R.(2d) 225; 448 W.A.C. 225; 2009 MBCA 35, dist. [para. 118].

Wu v. R., [1934] S.C.R. 609, refd to. [para. 119].

R. v. Gauthier (C.) (2013), 445 N.R. 97; 2013 SCC 32, refd to. [para. 120].

R. v. Haughton (D.), [1994] 3 S.C.R. 516; 179 N.R. 1; 79 O.A.C. 319, refd to. [para. 125].

R. v. Sarrazin (R.) et al. (2011), 422 N.R. 214; 284 O.A.C. 170; 2011 SCC 54, refd to. [para. 126].

Gilbert v. R. (2000), 201 C.L.R. 414 (H.C.), refd to. [para. 135].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 149].

R. v. Graveline (R.) (2006), 347 N.R. 268; 2006 SCC 16, refd to. [para. 216].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 217].

R. v. Levert (S.) (1994), 76 O.A.C. 307 (C.A.), refd to. [para. 220].

R. v. Roberts (E.W.) (2004), 346 A.R. 325; 320 W.A.C. 325; 2004 ABCA 114, refd to. [para. 221].

R. v. Miljevic (M.) (2010), 482 A.R. 115; 490 W.A.C. 115; 2010 ABCA 115, refd to. [para. 222].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, refd to. [para. 227].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 222 [para. 69]; sect. 229(a) [para. 70]; sect. 234 [para. 71].

Authors and Works Noticed:

Canadian Judicial Council, Model Jury Instructions, "Homicide" (July 2012), p. 10 [para. 66].

Ferguson, Gerry A., Dambrot, Michael R., and Bennett, Elizabeth A., CRIMJI: Canadian Criminal Jury Instructions (4th Ed.), para. 6.45 [para. 66].

Watt, David, Watt's Manual of Criminal Jury Instructions (2005), pp. 422 to 425 [para. 66].

Counsel:

Roger A. Burrill, for the appellant;

Mark Scott, for the respondent.

This appeal was heard on February 4, 2014, at Halifax, N.S., before Saunders, Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On June 13, 2014, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Beveridge, J.A. (Farrar, J.A., concurring) - see paragraphs 1 to 155;

Saunders, J.A., dissenting - see paragraphs 156 to 235.