DATE: 20040219

DOCKET: C37635

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MIRMEHDI MIRKHANDAN (Applicant/Appellant)

BEFORE:

DOHERTY, GOUDGE JJ.A. AND CAVARZAN J. (AD HOC)

COUNSEL:

Melvyn Green

for the appellant

Susan M. Chapman

for the respondent

HEARD:

February 18, 2004

On appeal from the conviction by Justice Clair B. Marchand of the Superior Court of Justice dated May 4, 2000.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, the trial judge properly charged the jury on the elements required for first degree murder. The charge clearly requires that the jury conclude beyond a reasonable doubt that the murder be planned and deliberate. This can only mean that the murder be the product of planning and deliberation.

[2] By the time the jury reached the issue of planning and deliberation, there were only two possibilities at play: that the murder was planned and deliberate or spur of the moment. Both were properly put to the jury.

[3] Thus there was neither misdirection or non direction as to first degree murder. This ground of appeal must fail.

[4] Mr. Green correctly acknowledges that this being so, we need not deal with his argument concerning provocation.

[5] The appeal is dismissed.

"S.T. Goudge J.A."