Michelle Levy

The accused stabbed and killed the deceased during an altercation.

At trial for second degree murder, the accused claimed self-defence.

The trial judge instructed the jury that the self-defence justification under s. 34(2) of the Criminal Code was not available if the accused was the initial aggressor, reading in the words 'without having provoked the assault' from s. 34(1).

The accused was convicted of manslaughter.

The Court of Appeal ordered a new trial.

The Supreme Court of Canada dismissed the Crown's appeal, holding that s. 34(2) is clear on its face and is available to an initial aggressor.

The Court emphasized that ambiguous penal provisions must be interpreted in the manner most favourable to the accused.

The appellant appealed his conviction for second-degree murder, arguing the trial judge erred in instructing the jury on the included offence of manslaughter.

The Supreme Court of Canada dismissed the appeal, applying the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.

The Court held that the jury, by convicting of murder, must have found subjective foresight of death, and it was impossible to conclude they did so merely because they were unable to find subjective foresight of bodily harm for manslaughter.