R. v. Smith (G.A.), (1986) 71 N.S.R.(2d) 229 (CA)

JudgeHart, Jones and Macdonald, JJ.A.
CourtSupreme Court of Nova Scotia (Canada)
Case DateJanuary 23, 1986
JurisdictionNova Scotia
Citations(1986), 71 N.S.R.(2d) 229 (CA)

R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229 (CA);

    171 A.P.R. 229

MLB headnote and full text

R. v. Smith (G.A.)

(S.C.C. 01229)

Indexed As: R. v. Smith (G.A.)

Nova Scotia Supreme Court

Appeal Division

Hart, Jones and Macdonald, JJ.A.

January 23, 1986.

Summary:

The accused was charged with first degree murder in the shooting death of his uncle. After trial by judge and jury, the accused was convicted. The accused appealed, submitting that the trial judge made numerous errors in charging the jury.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Criminal Law - Topic 1269

First degree murder - What constitutes - The Nova Scotia Court of Appeal held that first degree murder must be both planned and deliberate and that the planning and deliberation must precede the commission of the murder - See paragraph 37.

Criminal Law - Topic 1270

First degree murder - "Planned" and "deliberate" defined - The Nova Scotia Court of Appeal held that "planned" and "deliberate" were to be given their ordinary meaning - Planned meant "a calculated scheme or design which has been carefully thought out and the nature and consequences of which have been considered and weighed" - Deliberate meant "carefully thought out, not hasty or rash" or impulsive - See paragraph 46.

Criminal Law - Topic 1270

First degree murder - "Planned" and "deliberate" defined - The Nova Scotia Court of Appeal held that an accused's mental illness or disorder, by itself, did not necessarily preclude a finding that the accused had the ability or capacity to plan or deliberate a murder - See paragraph 50.

Criminal Law - Topic 4351

Procedure - Charge or directions to jury - Regarding burden of proof or reasonable doubt - A trial judge directed a jury as to reasonable doubt as follows: "Proof beyond a reasonable doubt has been achieved when you, the jury, feel sure of the guilt of the accused. It is that degree of proof which satisfies the mind and conscience and convinces the mind so that you will feel compelled to act upon it. It is not a whimsical nor fanciful doubt nor one that is based upon speculation, conjecture or capriciousness. It really must be a real doubt" - The Nova Scotia Court of Appeal held that the definition was acceptable - See paragraphs 55 and 56.

Criminal Law - Topic 4393

Procedure - Charge or directions to jury - Failure by counsel to object - Effect of - An accused submitted that the trial judge erred in explaining the defence theory to the jury, however the charge was not objected to at trial - The Nova Scotia Court of Appeal reviewed the charge and held that in the circumstances, "including the failure of counsel to object", there was no error - See paragraphs 53 and 54.

Criminal Law - Topic 4959

Appeals - Indictable offences - New trials - Grounds - Jury deliberating under pressure - A trial judge instructed the jury at 5:00 p.m., after four hours deliberation, that he intended to sequester them at 6:00 p.m. - The jury reached a verdict at 5:45 p.m. - The accused submitted that the trial judge's instruction pressured the jury into reaching a verdict - The Nova Scotia Court of Appeal held that there was no pressure on the jury, because the trial judge cautioned the jury before and after the instruction against feeling pressured - The court stated that the purpose of the instruction was to let the jury know that the trial judge did not intend to allow them to deliberate into the night - See paragraphs 34 and 35.

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - The Nova Scotia Court of Appeal stated that an accused's statement was only admissible if tendered by the Crown and that the Crown could not put in only selected parts of the statement - The court stated that a failure by police to report or remember all questions asked of the accused and answers given may, but not must, render the statement inadmissible - The court held that where a written statement was a complete account of the events and a prior oral statement did not add to, explain, clarify or form part of the written statement, the Crown did not have to introduce the oral statement and it was improper for it to be elicited through cross-examination of the police - The court also stated that if the Crown did not tender the whole statement the defence was entitled to introduce the missing portions - See paragraphs 19 to 29.

Criminal Law - Topic 5343

Evidence and witnesses - Confessions and voluntary statements - Exculpatory statements by accused - The Nova Scotia Court of Appeal stated the general rule that "in criminal cases ... self-serving statements made by an accused cannot be introduced on the cross-examination of third parties because they cannot themselves be tested by cross-examination of the accused person who made them, and their introduction in such manner deprives the jury of the benefit of appraising his credibility from observing his demeanour" - See paragraph 26.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement made freely and voluntarily - The Nova Scotia Court of Appeal examined the circumstances under which an accused gave a statement and held that the statement was made freely and voluntarily, where, inter alia, the accused was given the standard police warning or caution several times, was advised of his right to counsel, was not induced or threatened and where every officer who had contact with the accused testified on the voir dire - See paragraphs 11 to 29.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs - Admissibility - The Nova Scotia Court of Appeal held that photographs of the scene of the offence were admissible at the discretion of the trial judge - The court stated that the trial judge must be satisfied that the photographs accurately represent the facts and fairly portray the scene without any intention to mislead - See paragraphs 30 to 32.

Criminal Law - Topic 5418

Evidence and witnesses - Witnesses - Re-examination of - A witness was examined and cross-examined - The Nova Scotia Court of Appeal affirmed the trial judge's refusal to allow counsel to re-examine the witness, where it was open to counsel on direct examination to explore the area he now sought to explore - See paragraph 57.

Words and Phrases

Planned - The Nova Scotia Court of Appeal defined "planned", as found in the phrase "planned and deliberate" respecting a charge of first degree murder - See paragraph 46.

Words and Phrases

Deliberate - The Nova Scotia Court of Appeal defined "deliberate", as found in the phrase "planned and deliberate" respecting a charge of first degree murder - See paragraph 46.

Words and Phrases

Reasonable doubt - The Nova Scotia Court of Appeal accepted the definition of reasonable doubt as defined by a trial judge to a jury - See paragraphs 55 and 56.

Cases Noticed:

R. v. Smith (1981), 60 C.C.C.(2d) 327 (Que. S.C.), dist. [para. 16].

R. v. Stefiuk et al. (No. 1) (1981), 61 C.C.C.(2d) 268 (Man Co. Ct.), dist. [para. 16].

R. v. Adams, MacAllister and Stables (1956), 117 C.C.C. 93; 25 C.R. 80; 39 M.P.R. 27, refd to. [para. 19].

R. v. Allen (No. 3) (1949), 46 C.C.C.(2d) 553, refd to. [para. 19].

R. v. Cybulski (1974), 19 C.C.C.(2d) 560, refd to. [para. 20].

R. v. Belanger (1975), 24 C.C.C.(2d) 10 (Ont. C.A.), dist. [para. 21].

R. v. Graham, [1974] S.C.R. 206; 7 C.C.C.(2d) 93; 19 C.R.N.S. 117, appld. [para. 26].

R. v. Haase, [1965] 2 C.C.C. 56 (B.C.C.A.), refd to. [para. 27].

R. v. Waddell (1975), 28 C.C.C.(2d) 315 (B.C.C.A.), refd to. [para. 28].

R. v. Creemer and Cormier, [1968] 1 C.C.C. 14 (N.S.C.A.), refd to. [para. 32].

R. v. Owen (1983), 56 N.S.R.(2d) 541; 117 A.P.R. 541, refd to. [para. 35].

R. v. Smith (1979), 51 C.C.C.(2d) 381 (Sask. C.A.), refd to. [para. 43].

R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C.J.), refd to. [para. 44].

R. v. Reynolds (1978), 44 C.C.C.(2d) 192 (Ont. C.A.), refd to. [para. 45].

Smithers v. The Queen (1977), 34 C.C.C.(2d) 427 (Ont. C.A.), refd to. [para. 48].

R. v. Kirkby (1985), 10 O.A.C. 356; 21 C.C.C.(3d) 31 (Ont. C.A.), agreed with. [para. 50].

Colpitts v. The Queen, [1965] S.C.R. 739; [1966] 1 C.C.C. 146, refd to. [para. 54].

R. v. Theriault, [1981] 1 S.C.R. 336; 61 C.C.C.(2d) 102; 37 N.R. 361; 37 N.R. 591, refd to. [para. 54].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 16 [para. 50]; sect. 613(1)(b)(iii) [para. 58].

Authors and Works Noticed:

McWilliams, Canadian Criminal Evidence (2nd Ed.), pp. 127 [para. 31]; 521 [para. 19].

Counsel:

Stephen A. Mattson, for the appellant;

Dana W. Giovannetti, for the respondent.

This appeal was heard on November 29, 1985, before Hart, Jones and Macdonald, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On January 23, 1986, Macdonald, J.A., delivered the following judgment for the Court of Appeal.

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10 practice notes
  • R. v. Mallory (R.) et al., (2007) 220 O.A.C. 239 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • 1 Diciembre 2006
    ...49 (C.A.), refd to. [para. 205]. R. v. Black and Mackie, [1966] 3 C.C.C. 187 (Ont. C.A.), refd to. [para. 205]. R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229 (C.A.), refd to. [para. R. v. Bihun, [1965] 4 C.C.C. 45 (Man. C.A.), refd to. [para. 205]. R. v. Cybulski (1974), 19 C......
  • R. v. Jacquard (C.O.), (1997) 207 N.R. 246 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 20 Febrero 1997
    ...C.A.), dist. [para. 24]. R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161, refd to. [para. 25]. R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229 (C.A.), refd to. [para. R. v. Palmer (1986), 12 O.A.C. 181 (C.A.), refd to. [para. 25]. R. v. Wallen, [1990] 1 S.C.R. 8......
  • R. v. Jacquard (C.O.), (1997) 157 N.S.R.(2d) 161 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 20 Febrero 1997
    ...C.A.), dist. [para. 24]. R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161, refd to. [para. 25]. R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229 (C.A.), refd to. [para. R. v. Palmer (1986), 12 O.A.C. 181 (C.A.), refd to. [para. 25]. R. v. Wallen, [1990] 1 S.C.R. 8......
  • R. v. W.H.M., (1990) 87 Nfld. & P.E.I.R. 339 (PEICA)
    • Canada
    • 31 Diciembre 1990
    ...240; 43 Sask.R. 240 (S.C.C.), appld. [para. 15]. R. v. Roloson (1978), 42 C.C.C.(2d) 262, appld. [para. 18]. R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229, appld. [para. R. v. Saulnier (1989), 89 N.S.R.(2d) 208; 227 A.P.R. 208, appld. [para. 27]. R. v. Boss (1988), 30 O.A.C. ......
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10 cases
  • R. v. Mallory (R.) et al., (2007) 220 O.A.C. 239 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • 1 Diciembre 2006
    ...49 (C.A.), refd to. [para. 205]. R. v. Black and Mackie, [1966] 3 C.C.C. 187 (Ont. C.A.), refd to. [para. 205]. R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229 (C.A.), refd to. [para. R. v. Bihun, [1965] 4 C.C.C. 45 (Man. C.A.), refd to. [para. 205]. R. v. Cybulski (1974), 19 C......
  • R. v. Jacquard (C.O.), (1997) 207 N.R. 246 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 20 Febrero 1997
    ...C.A.), dist. [para. 24]. R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161, refd to. [para. 25]. R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229 (C.A.), refd to. [para. R. v. Palmer (1986), 12 O.A.C. 181 (C.A.), refd to. [para. 25]. R. v. Wallen, [1990] 1 S.C.R. 8......
  • R. v. Jacquard (C.O.), (1997) 157 N.S.R.(2d) 161 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 20 Febrero 1997
    ...C.A.), dist. [para. 24]. R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161, refd to. [para. 25]. R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229 (C.A.), refd to. [para. R. v. Palmer (1986), 12 O.A.C. 181 (C.A.), refd to. [para. 25]. R. v. Wallen, [1990] 1 S.C.R. 8......
  • R. v. W.H.M., (1990) 87 Nfld. & P.E.I.R. 339 (PEICA)
    • Canada
    • 31 Diciembre 1990
    ...240; 43 Sask.R. 240 (S.C.C.), appld. [para. 15]. R. v. Roloson (1978), 42 C.C.C.(2d) 262, appld. [para. 18]. R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229, appld. [para. R. v. Saulnier (1989), 89 N.S.R.(2d) 208; 227 A.P.R. 208, appld. [para. 27]. R. v. Boss (1988), 30 O.A.C. ......
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