R. v. Murray (E.E.), (1994) 73 O.A.C. 321 (CA)

• Judge: Grange, Osborne and Abella, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 23, 1994
• Jurisdiction: Ontario
• Citations: (1994), 73 O.A.C. 321 (CA)

R. v. Murray (E.E.) (1994), 73 O.A.C. 321 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Edward Ervin Murray (appellant)

(C10890)

Indexed As: R. v. Murray (E.E.)

Ontario Court of Appeal

Grange, Osborne and Abella, JJ.A.

September 23, 1994.

Summary:

The accused appealed his conviction for first degree murder on the grounds that the trial judge misdirected the jury on the intent required for murder, failed to specifically direct the jury on the issue of intoxication and misdirected the jury on the issue of consciousness of guilt.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial.

Criminal Law - Topic 1265.1

Murder - Jury charge - First degree mur­der - The accused robbed what he believed was a vacant home - The victim was home - A struggle ensued - The victim died from manual strangulation consistent with a choke hold - Section 229(a)(ii) defined murder as an accused causing death where he meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not - The critical trial issue was whether the accused, in assault­ing the victim, knew that his actions were likely to cause death - The trial judge instructed the jury using the words of s. 229(a)(ii), but did not, in reviewing the evidence, relate it to the critical issue of what the accused knew and foresaw at the time of the assault - The Ontario Court of Appeal stated that the trial judge's error in failing to relate the relevant evidence to the issue was misdi­rection - See para­graphs 25 to 41.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - Intent and drunkenness - The accused robbed a supposedly vacant home - The victim was home - A struggle ensued and the victim died from manual strangulation consistent with a choke hold - There was evidence that the accused had been drinking for two hours before the robbery - The trial judge, at the urging of defence counsel, did not charge the jury on intoxication and, fur­ther, instructed them that the accused's drinking was irrelevant to the charge of first degree murder - The Ontario Court of Appeal held that the trial judge had an obligation to instruct the jury on all de­fences that reasonably arose from the evidence, notwithstanding defence counsel did not want the jury so charged - The trial judge erred in failing to instruct the jury on the issue of drunkenness and intent to commit murder and in instructing the jury that the evidence of drinking was irrelevant - See paragraphs 42 to 54.

Criminal Law - Topic 4374

Procedure - Jury charge - Duty to relate law to facts - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 4397

Procedure - Jury charge - Directions re matters not raised by counsel - [See Criminal Law - Topic 1299 ].

Criminal Law - Topic 4399.9

Procedure - Jury charge - Directions re flight and other post-offence behaviour of accused - The accused was charged with first degree murder following the strangu­lation death of a robbery victim - The accused had fled to the United States and gave a false name when apprehended there - The Ontario Court of Appeal stated that "the [accused's] involvement in a break and enter, a robbery, an unlawful confine­ment and his admission that he was guilty of manslaughter compel the conclusion that the evidence of his flight and false identification could not assist the jury in determining the [accused's] liability for murder. ... the evidence which triggered the consciousness of guilt charge ... could not support a circumstantial finding that the [accused] had the intent required for murder." - The trial judge erred in failing to so instruct the jury - See paragraphs 55 to 58.

Criminal Law - Topic 5313

Evidence and witnesses - Inferences - Of consciousness of guilt - From falsehoods - [See Criminal Law - Topic 4399.9 ].

Cases Noticed:

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186; 51 C.C.C.(3d) 417, refd to. [para. 30].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 40].

R. v. Haughton (D.) (1992), 60 O.A.C. 291; 11 O.R.(3d) 621 (C.A.), refd to. [para. 40].

Azoulay v. R. (1952), 104 C.C.C. 97 (S.C.C.), refd to. [para. 40].

R. v. Yadollahi (1987), 19 O.A.C. 392; 36 C.C.C.(3d) 478 (C.A.), refd to. [para. 40].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481, refd to. [para. 48].

R. v. Lomage (1991), 44 O.A.C. 131; 2 O.R.(3d) 621 (C.A.), refd to. [para. 48].

R. v. MacKinlay (1986), 15 O.A.C. 241; 28 C.C.C.(3d) 306 (C.A.), refd to. [para. 52].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 52].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 57].

R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226 (C.A.), refd to. [para. 57].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, refd to. [para. 61].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1; 49 C.C.C.(3d) 417, refd to. [para. 61].

R. v. D.W.P. - see R. v. Provo.

R. v. Pringle, [1989] 1 S.C.R. 1645; 97 N.R. 1; 34 O.A.C. 281; 48 C.C.C.(3d) 449, refd to. [para. 61].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 229(a) [para. 25]; sect. 686(1)(b)(iii) [para. 59].

Counsel:

John Rosen and Timothy Breen, for the appellant;

Lucy Cecchetto, for the respondent.

This appeal was heard on April 12, 1994, before Grange, Osborne and Abella, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Osborne, J.A., and was released on September 23, 1994.