R. Philip Campbell

The Crown appealed a Nova Scotia Court of Appeal decision that set aside convictions for first degree murder and conspiracy to commit murder and ordered a new trial.

The Supreme Court agreed that the trial judge's instructions on party liability for first degree murder were in error, such that the first degree murder conviction could not stand.

However, the Court held that the trial judge was not required to charge the jury on manslaughter, as the evidence did not meet the air of reality test.

The Court further held that the trial judge did not err in the evidence left for the jury under the third prong of the Carter test for admissibility of co-conspirator hearsay.

Accordingly, the appeal was allowed in part: the conspiracy conviction was restored and a conviction for second degree murder was substituted.

The Crown appealed from an order granting a new trial following an aggravated assault conviction arising from a gang attack.

The Supreme Court agreed that the jury charge on the defence theory was inadequate and that a new trial was required.

On the fresh evidence issue, the majority held that issue estoppel remains part of Canadian criminal law but is confined to preventing the Crown from relitigating issues previously determined in the accused’s favour, including findings grounded in reasonable doubt.

The Court rejected the contention that a later acquittal on an obstruction charge retrospectively rendered post-offence phone call evidence inadmissible in the earlier trial.