R. v. Melvin (C.P.), 2016 NSCA 52

• Judge: MacDonald, C.J.N.S., Farrar and Van den Eynden, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 22, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 52;(2016), 374 N.S.R.(2d) 316 (CA)

R. v. Melvin (C.P.) (2016), 374 N.S.R.(2d) 316 (CA);

    1178 A.P.R. 316

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JN.031

Cory Patrick Melvin (appellant) v. Her Majesty the Queen (respondent)

(CAC 439892; 2016 NSCA 52)

Indexed As: R. v. Melvin (C.P.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Farrar and Van den Eynden, JJ.A.

June 9, 2016.

Summary:

A jury trial resulted in the accused being found guilty of aggravated assault and possession of a weapon for the purpose of committing an offence. The accused appealed, asserting that the trial judge made a number of errors in his charge to the jury.

The Nova Scotia Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - A jury trial resulted in the accused being found guilty of aggravated assault and possession of a weapon for the purpose of committing an offence - The Nova Scotia Court of Appeal allowed the accused's appeal and ordered a new trial - The trial judge's jury charge misidentified the real issue as being whether the alleged events occurred - The real issue from the defence's point of view was whether the Crown had proven that the accused was the person who cut the victim with a knife - The judge then read from his notes reciting his recollection of the evidence several witnesses and directed the jury to focus their attention on those witnesses - The judge did not review the evidence of four witnesses or the evidence contained in exhibits, such as videos and photographs, that could have created, or contributed to, a reasonable doubt on the charges - Further, the judge did not relate the evidence of any witness or exhibits to the issue of whether the accused was the person who cut the victim - On the second day of deliberations, the jury asked the judge if they were to consider all of the evidence for all of the charges - The judge answered by simply stating "Yes" - That response was inadequate - The question showed that the jurors were struggling with how to relate the evidence to the issues - It was the judge's duty to recognize that fact and to fulfil the responsibility of reviewing the evidence and relating it to the issues - The response also contradicted the judge's jury instructions that the jurors were to make their decision on each charge only on the basis of the evidence that related to that charge - The judges's failure to relate the evidence to the live issues at trial was a serious non-direction amounting to a misdirection - See paragraphs 31 to 61.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - A jury trial resulted in the accused being found guilty of aggravated assault and possession of a weapon for the purpose of committing an offence - The Nova Scotia Court of Appeal allowed the accused's appeal and ordered a new trial - In the jury charge, the trial judge spoke in terms of the force that the accused "intentionally applied" - This missed the real issue, which was the accused's position that he never applied any force to the victim - The jury instructions on the legal elements of aggravated assault suggested that the accused was the person who stabbed the victim - The instruction was made problematic by the absence of instructions on the relation of the evidence to the issues - When the judge instructed the jury in terms of whether the accused's application of force was intentional and whether it resulted in a wounding of the victim, it suggested that the accused applied the force and the issues were whether it was intentional and resulted in a wounding - There was no issue that the victim had force intentionally applied to him and that it resulted in a wounding - The judge's focus should have been on whether it was the accused who applied the force - See paragraphs 62 to 70.

Criminal Law - Topic 4367

Procedure - Charge or directions - Jury or judge alone - Directions regarding separation of evidence respecting several counts - [See first Criminal Law - Topic 4357 ].

Criminal Law - Topic 4374

Procedure - Charge or directions - Jury or judge alone - Duty to relate law to facts - [See both Criminal Law - Topic 4357 ].

Criminal Law - Topic 4374

Procedure - Charge or directions - Jury or judge alone - Duty to relate law to facts - A jury trial resulted in the accused being found guilty of aggravated assault and possession of a weapon for the purpose of committing an offence - The accused appealed, asserting that the trial judge made a number of errors in his charge to the jury - The Crown asserted that if there were deficiencies in the jury charge, the closing arguments of counsel would have kept the jury from being misled - The Nova Scotia Court of Appeal found deficiencies in the jury charge and ordered a new trial - The parties' closing arguments did not relieve the trial judge of the obligation to ensure that the jury understood the significance of the evidence - See paragraphs 71 and 72.

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See first Criminal Law - Topic 4357 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - [See first Criminal Law - Topic 4357 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - A jury trial resulted in the accused being found guilty of aggravated assault and possession of a weapon for the purpose of committing an offence - The accused appealed, asserting that the trial judge made a number of errors in his charge to the jury - The Crown asserted that if there were deficiencies in the jury charge, the accused's counsel did not object to the instructions or to the trial judge's response given to a jury question - The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial, stating that "Although trial counsel's failure to object may be a factor in determining whether or not the instructions to the jury were adequate, it is not fatal in every case ... I am satisfied that the significance of the evidence in relation to the issues raised by the defence and the prejudicial effect occasioned by the trial judge's lack of instruction requires that a new trial be ordered, despite defence counsel's failure to object." - See paragraphs 74 and 75.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See both Criminal Law - Topic 4357 ].

Counsel:

Stanley W. MacDonald, Q.C., for the appellant;

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

This appeal was heard at Halifax, Nova Scotia, on March 22, 2016, by MacDonald, C.J.N.S., Farrar and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal. Farrar, J.A., delivered the following judgment for the court on June 9, 2016.