Court of Appeal for Ontario

Citation: R. v. Allen, 2007 ONCA 790

Date: 2007-11-19

Docket: C43640

Before: MOLDAVER, FELDMAN and SHARPE JJ.A.

Between:

HER MAJESTY THE QUEEN

Respondent

and

BENJAMIN ALLEN

Appellant

Counsel:

Vincenzo Rondinelli for the appellant

Susan Ficek for the respondent

Heard and released orally: November 9, 2007

On appeal from conviction by Justice Harry S. LaForme of the Superior Court of Justice, sitting with a jury, dated June 17, 2004.

ENDORSEMENT

[1] The appellant was convicted of second degree murder following his trial by judge and jury. His primary ground of appeal is that the trial judge removed from the jury’s consideration the possibility of a verdict of acquittal. Rather, he instructed the jury that at a minimum, they must convict of manslaughter and that their sole task was to determine whether the Crown had proved second degree murder beyond a reasonable doubt.

[2] Following the closing addresses of counsel, the trial judge decided, after discussions with counsel, that there was no basis for an acquittal having regard to the evidence and the formal admissions made by the appellant, namely: (a) that he was at the scene; (b) that he was in possession of a firearm; and (c) that he discharged the firearm. In so concluding, he rejected defence counsel’s submission that there was a theoretical basis for an acquittal and that the matter should be left for the jury to decide.

[3] In deciding to direct the jury that they could not acquit the appellant and that minimally, they must convict him of manslaughter, the learned trial judge did not have the benefit of two subsequent decisions from the Supreme Court of Canada in which the court made it clear that absent a formal admission of all of the essential elements of an offence, it is impermissible for a trial judge to direct a jury to convict. In R. v. Gunning (2005), 2005 SCC 27, 196 C.C.C. (3d) 123 at para. 31, the court stated:

Hence, it is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly. It does not matter how obvious the judge may believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse. The trial judge may give an opinion on the matter when it is warranted, but never a direction.

[4] Similarly, in R. v. Kreiger (2006), 2006 SCC 47, 213 C.C.C. (3d) 303 at para. 24, the court stated:

The overwhelming nature of the evidence can hardly justify a directed verdict of guilty. When, if not in such cases, would a verdict of guilty be directed? Would it be permitted whenever the evidence is overwhelming in the eyes of the judges? Under our Constitution, the plain answer to this last question is “no”. [Emphasis in original.]

[5] In this case, we agree with the appellant that the three formal admissions did not amount to an admission of all of the essential elements of manslaughter that the Crown was required to prove. In particular, the appellant did not admit that he was a party to any offence committed by the other participants. In these circumstances, although the charge to the jury was otherwise fair and balanced, and although we agree that the prospects for an acquittal were remote at best, on the authorities we have cited, the appellant was deprived of his right to trial by jury and the proviso cannot cure the error.

[6] Accordingly, the appeal is allowed, the conviction is quashed and a new trial is ordered.

Signed: “M.J. Moldaver J.A.”

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”