COURT OF APPEAL FOR ONTARIO
DATE: 20000927
DOCKET: C32146
RE: HER MAJESTY THE QUEEN (Respondent) and JEREMY LEMING (Appellant)
BEFORE: ROSENBERG and MOLDAVER JJ.A. and SIMMONS J. (ad hoc)
COUNSEL: Clay M. Powell, Q.C., for the appellant
Philip Downes, for the respondent
HEARD: September 22, 2000
On appeal from conviction for second degree murder by The Honourable Mr. Justice John G. Kerr, with a jury, dated June 25, 1998.
E N D O R S E M E N T
[1] We are not satisfied that the trial judge adequately dealt with the question of intent and the impact of the combined effect of intoxication, provocation and excessive force in self-defence. The trial judge did refer to the consumption of alcohol separately and in the context of provocation under s.232 of the Criminal Code. Unfortunately, however, he compartmentalized the various defences in the course of the charge and more importantly at the conclusion of his charge when he referred to them as "alternative" defences. In fairness to the trial judge, there was no objection to this aspect of the charge. Nevertheless, we cannot be satisfied that the jury would have appreciated the need to consider the cumulative effect of the evidence of intoxication and the fear and anger experienced by the appellant. See R. v. Nealy (1986), 1986 4694 (ON CA), 30 C.C.C. (3d) 460 (Ont. C.A.). We have therefore not been persuaded that no substantial wrong or miscarriage of justice was occasioned.
[2] Accordingly, the appeal is allowed, the conviction set aside and a new trial ordered on second degree murder.
(signed) "M. Rosenberg J.A."
(signed) "M. J. Moldaver J.A."
(signed) "J. Simmons J. ad hoc"