Margaret Gallagher

In a criminal appeal from a provincial court of appeal, the Crown challenged the setting aside of a second degree murder conviction and the order for a new trial.

The central issues were errors in the jury charge, including failure to identify the unlawful act and failure to properly instruct on the elements of manslaughter.

The Court held that these legal errors prevented reliance on the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.

The appeal was dismissed and the new trial order remained in place.

The accused was acquitted of trafficking in cocaine and possession of proceeds of crime.

The Crown appealed, arguing the trial judge erred in his jury instructions regarding the admissibility of co-conspirator hearsay evidence under the Carter test.

The Court of Appeal allowed the appeal and ordered a new trial.

The Supreme Court of Canada dismissed the accused's appeal, confirming that the trial judge made two clear misdirections in formulating the Carter test.

The Court held that the Crown met the heavy burden of establishing with reasonable certainty that, had the jury been properly charged, the verdict would not necessarily have been the same.