Dr. Brian Johnston

The appellant was convicted of first degree murder by a jury.

On appeal, he argued the trial judge erred by admitting the preliminary inquiry testimony of a co-accused who refused to testify at trial, failing to properly instruct the jury on the evidence, and improperly answering a jury question.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge failed to properly exercise his discretion under s. 715(1) of the Criminal Code, failed to relate the evidence to the issues in his jury charge, and provided a procedurally and substantively flawed response to a jury question.

The respondents were convicted of second degree murder after shooting the victim, who died a month later from a blood clot.

The victim had ingested cocaine shortly before death, raising a causation issue.

The trial judge failed to instruct the jury on the included offence of attempted murder.

The Supreme Court of Canada held that this was an error of law and declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, as the error could not be confidently dismissed as harmless.

The Crown's appeal was dismissed, upholding the Court of Appeal's order for a new trial.

The appellants were convicted of second degree murder after the victim, whom they had shot, died a month later from a pulmonary embolism.

At trial, the defence argued that the embolism was caused by the victim's ingestion of cocaine shortly before his death, not the gunshot wounds.

The trial judge instructed the jury to acquit if they had a reasonable doubt about causation, declining to leave attempted murder as a possible verdict.

The Court of Appeal held that section 660 of the Criminal Code applies to murder charges, meaning attempted murder is an available verdict if the full offence is not proved.

The majority concluded that the failure to instruct the jury on attempted murder was a reversible error and declined to apply the curative proviso, ordering a new trial.