Peter Sankoff

On a criminal appeal as of right, the Court considered whether the appellate court properly substituted a first degree murder conviction after finding legal error in the trial judge’s planning-and-deliberation analysis under s. 231(2) of the Criminal Code.

The trial judge had convicted on second degree murder and rejected first degree murder on the basis that planning and deliberation were not established, while also addressing constructive first degree murder under s. 231(5).

The appellate court allowed the Crown appeal, quashed the acquittal on first degree murder, and entered a first degree murder conviction under both s. 231(2) and s. 231(5).

The Court held that the trial judge applied the wrong legal test for planned and deliberate murder and that, absent that error, the factual findings supported first degree murder under s. 231(2).

The appeal was dismissed, and it was unnecessary to decide the s. 231(5) issue.

The appellant was convicted of sexual assault and sexual interference following a jury trial.

On appeal, he argued that the trial judge erred by failing to instruct the jury to disregard improper submissions made by Crown counsel during closing address, specifically an anecdote about a personal childhood memory unrelated to the evidence.

The Court of Appeal dismissed the appeal, and the Supreme Court affirmed, holding that although Crown counsel's personal anecdote was improper, it did not render the trial unfair or result in a miscarriage of justice in light of contextual factors including the anecdote's limited prominence, the trial judge's general caution to the jury, and defence counsel's failure to object.

The accused was charged with first degree murder in the death of an Indigenous woman and sex worker found dead in his hotel room with an 11 cm wound in her vaginal wall.

At trial, the accused testified at length about prior sexual activity with the deceased without having made an application under the s. 276 regime of the Criminal Code, and the jury was not given any limiting instruction on the permissible uses of that evidence.

The jury acquitted the accused of both first degree murder and the included offence of unlawful act manslaughter.

The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial on first degree murder.

The majority of the Supreme Court held that the trial judge erred by failing to comply with the mandatory s. 276 regime, and that the resulting failure to inoculate the jury against mistakes of law related to the defence of honest but mistaken belief in communicated consent warranted a new trial on unlawful act manslaughter.

However, a new trial on first degree murder was not warranted as the errors did not materially bear on the murder acquittal, which turned on a battle of expert evidence on whether a sharp object was used.

The dissent would have upheld the Court of Appeal's order of a new trial on both murder and manslaughter.