Court of Appeal for Ontario

Date: September 26, 2017

Docket: C60905, C61409 and C61447

Judges: Cronk, Juriansz and Paciocco JJ.A.

Between

Docket: C60905

Her Majesty the Queen Appellant

and

George Cooke Respondent

And Between

Docket: C61409 and C61447

Her Majesty the Queen Respondent

and

George Cooke and Matthew Cooke Appellants

Counsel

• Richard Litkowski and Jessica Zita, for the appellant George Cooke
• Paul Burstein and Karen Symes, for the appellant Matthew Cooke
• Susan Magotiaux, for the appellant (C60905) and respondent (C61409 and C61447)

Heard and released orally: September 25, 2017

On appeal from: The convictions entered on March 25, 2015 and the sentences imposed on July 24, 2015 by Justice Jane A. Milanetti of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Following a trial by judge and jury, the appellants were convicted of manslaughter. Their convictions on the offence of break and enter to commit robbery were stayed pursuant to Kienapple v. R., [1975] 1 S.C.R. 729. They appeal their manslaughter convictions, on various grounds, and seek leave to appeal the sentences imposed. The Crown also seeks leave to appeal against the sentence imposed on the appellant George Cooke.

[2] It is unnecessary, in our view, to address all the grounds advanced by the appellants on their conviction appeals. We are satisfied, as Crown counsel responsibly concedes, that the jury charge in this case on the critical counts of manslaughter is insufficient to meet the functional requirements for an adequate jury charge as articulated in R. v. Newton, 2017 ONCA 496 and related cases. In particular, as Crown counsel acknowledges, the charge fails to adequately relate the evidence to the key issues in the case and the parties' positions on those issues.

[3] Accordingly, the conviction appeals are allowed and a new trial is ordered in respect of all original charges on the joint indictment against the appellants. In the circumstances, the sentence appeals (by the appellants and by the Crown) are moot.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David M. Paciocco J.A.