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
1In 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.
2By 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.
3Thus there was neither misdirection or non direction as to first degree murder. This ground of appeal must fail.
4Mr. Green correctly acknowledges that this being so, we need not deal with his argument concerning provocation.
5The appeal is dismissed.
"S.T. Goudge J.A."