R. v. Parnell, (1983) 1 O.A.C. 161 (CA)

• Judge: Lacourcière, Thorson and Cory, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 22, 1983
• Jurisdiction: Ontario
• Citations: (1983), 1 O.A.C. 161 (CA)

R. v. Parnell (1983), 1 O.A.C. 161 (CA)

MLB headnote and full text

R. v. Parnell

Indexed As: R. v. Parnell

Ontario Court of Appeal

Lacourcière, Thorson and Cory, JJ.A.

December 22, 1983.

Summary:

The accused was charged with first degree murder and convicted of second degree murder following a trial before judge and jury. The accused appealed his conviction on the grounds of an alleged infringement of s. 577 of the Criminal Code of Canada and misdirections to the jury by the trial judge.

The Ontario Court of Appeal allowed the appeal and ordered a new trial limited to a charge of second degree murder.

Criminal Law - Topic 1281

Offences against person and reputation - Murder - Provocation - Sudden provocation - What constitutes - The Ontario Court of Appeal stated that a sudden and painful blow following a heated discussion was capable of constituting provocation within the meaning of s. 215 of the Criminal Code of Canada - See paragraph 36.

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - The accused was charged with murder - There were facts in evidence capable of constructing provocation - The Ontario Court of Appeal held that the trial judge erred in failing to instruct the jury on the defence of provocation and that it was required to decide whether the deceased's wrongful act was sufficient to deprive an ordinary person of the power of self-control and whether the accused was so deprived - See paragraphs 33 to 37.

Criminal Law - Topic 4357

Procedure - Charge or directions to jury - Directions regarding defence and theory of the defence - The accused was charged with murder - His defence was accidental death, making the cause of death an important issue - The Crown and defence experts differed on this issue - The trial judge instructed the jury that the conflict could be resolved by considering who had the best opportunity to examine the evidence and advised that the defence's expert did not view the body shortly after death or at the autopsy - The Ontario Court of Appeal held that the trial judge erred in his directions to the jury by downplaying the theory of the defence - See paragraphs 28 to 29.

Criminal Law - Topic 4365

Procedure - Charge or directions to jury - Directions regarding expert evidence - An accused was charged with murder - Crown and defence experts differed on the cause of death, an issue which was the basis of the defence of accident - The Ontario Court of Appeal held that the trial judge should have instructed the jury that both opinions were equal - The court held that it was not proper to limit the jury by asking whose evidence was preferred or who had the beset opportunity to observe the evidence - See paragraphs 30 to 32.

Criminal Law - Topic 4390

Procedure - Charge or directions to jury - Due to instruct jury in open court - After retiring, the jury sent several question to the judge, who discussed them in chambers with Crown and defence counsel before returning them to the jury unanswered - The accused claimed that the judge's failure to read the questions in open court and allow counsel to make submissions in open court contravened s. 577 of the Criminal Code of Canada and his right to be present during the whole of his trial - The Ontario Court of Appeal held that because the questions were vital to have the accused's defence, they should have been dealt with in open court, with the accused present - See paragraphs 15 to 26.

Criminal Law - Topic 4487

Procedure - Trial - Attendance of accused - During deliberation, the jury sent several questions to the judge, who dealt with them in chambers with both counsel and failed to read the questions in open court and allow counsel to make submissions in open court - Section 577 of the Criminal Court of Canada established the accused's right to be present during the whole of his trial - The Ontario Court of Appeal held that where the questions were vital to the accused's defence, s. 577 was contravened - See paragraphs 15 to 26.

Criminal Law - Topic 5436

Evidence and witnesses - Cross-examination of accused - Character of accused - A trial judge allowed the Crown to cross-examine the accused on an irrelevant extraneous matter - The Ontario Court of Appeal held that the cross-examination was prejudicial and should not have been permitted, because it tended to depict the accused as a person of bad character - See paragraph 39.

Cases Noticed:

Meunier v. The Queen (1965), 48 C.R. 14, affd. [1966] S.C.R. 399, refd to. [para. 14].

R. v. Ginoux (1971), 15 C.R.N.S. 117, affd. 16 C.R.N.S. 256n (S.C.C.), refd to. [para. 14].

R. v. Grimba (1980), 30 O.R.(2d) 545 (C.A.), refd to. [para. 14].

R. v. Dunbar and Logan (1982), 68 C.C.C.(2d) 13 (Ont. C.A.) consd. [para. 18].

R. v. Paquette (1978), 17 A.R. 376; 29 N.R. 84 (Alta. C.A.), not folld. [para. 23].

R. v. Paquette, [1979] 2 S.C.R. 26; 29 N.R. 83; 17 A.R. 375 (S.C.C.), appld. [para. 23].

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), appld. [para. 24].

R. v. Cote and Vezina (No. 1), 3 C.C.C.(3d) 155 (Que. C.A.), refd to. [para. 25].

R. v. Hay (1982), 17 Sask.R. 252; 70 C.C.C.(2d) 286, refd to. [para 26].

R. v. Kirk, [1934] O.R. 443, refd to. [para. 30].

R. v. Platt, [1981] Crim. L.R. 332, consd. [para 31].

R. v. Laverty (No. 2) (1979), 47 C.C.C.(2d) 60 (Ont. C.A.), refd to. [para. 32].

R. v. Faid (1983), 46 N.R. 461; 2 C.C.C.(3d) 513 (S.C.C.), refd to. [para. 33].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 33].

R. v. Gowland (1978), 45 C.C.C.(2d) 303 (Ont. C.A.), refd to. [para. 36].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 215 [paras. 33 to 34, 36]; sect. 577 [paras. 13, 18, 20, 24 to 25].

Counsel:

Marc Rosenberg, for the appellant;

Kenneth L. Campbell, for the respondent.

This appeal was heard before Lacourciere, Thorson and Cory, JJ.A., of the Ontario Court of Appeal, on November 17 and 18, 1983. The decision of the Court of Appeal was delivered by Lacourciere, J.A. and was released on December 22, 1983.