Court File and Parties

CITATION: R. v. Edwards, 2007 ONCA 418

DATE: 20070608

DOCKET: C44752

COURT OF APPEAL FOR ONTARIO

LABROSSE, FELDMAN and LAFORME

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

KEVIN EDWARDS

Appellant

Donald H. Crawford, Q.C. and Ronald S. Ellis for the appellant

Amy Alyea for the respondent

Heard and released orally: May 30, 2007

On appeal from the conviction entered on November 29, 2005 by Justice Joseph M. Donohue of the superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The accused was convicted of manslaughter by a judge and jury. He appeals his conviction.

[2] After a night when the appellant, the victim and Mr. Fox were drinking and the victim and Mr. Fox were snorting cocaine and playing with a hand-gun, the appellant and the victim engaged in horseplay. During the struggle, the appellant shot and killed the victim.

[3] With respect to the grounds of appeal, we are of the view that:

(1) It was only after proper instructions had been given to the meaning of the expression “beyond a reasonable doubt” that the jury was instructed that they can convict if they are “certain” or “sure” that the accused is guilty: see R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) at para. 39. When the charge is read as a whole, we are satisfied that the jury could not have been under any misapprehension regarding the correct standard of proof.

(2) The trial judge made it clear to the jury that if they disagreed with him, they must use their own findings on the evidence and not his.

(3) No submission was made at trial that a Vetrovec warning was required with respect to Fox. Fox was not a witness whose credibility was inherently suspect. A Vetrovic warning was not mandatory in this case.

(4) The trial judge did not err in telling the jury that the determination of whether what happened was an accident was solely for their determination and that they should ignore the opinion of Fox. The trial judge also very clearly left the defence of accident for the determination of the jury.

(5) Finally, the trial judge properly charged the jury on the elements of criminal negligence and linked his review of the evidence to the consideration of the issues.

[4] It is also appropriate for this court to take into consideration on the appeal the fact that the appellant did not testify and that there were no objections to the charge to the jury.

[5] The appeal is dismissed.

“J-M. Labrosse J.A.”

“K. Feldman J.A.”

“H.S. LaForme J.A.”