R. v. Nehring, 1986 CanLII 10 (SCC), [1986] 2 SCR 709

R. v. Nehring, 1986 CanLII 10 (SCC), [1986] 2 SCR 709

Harlie Marvin Nehring Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. nehring

File No.: 19522.

1986: December 12; 1986: December 18.

Present: Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.

on appeal from the court of appeal for alberta

Criminal law ‑‑ Direction regarding burden of proof ‑‑ Second degree murder ‑‑ Whether trial judge misdirected himself.

Criminal law ‑‑ Evidence ‑‑ Second degree murder ‑‑ Whether trial judge failed to assess evidence which could have affected his verdict ‑‑ Whether trial judge failed to alert himself concerning danger of accepting evidence of accomplice.

Held (Estey, Lamer and Wilson JJ. dissenting): The appeal should be dismissed.

APPEAL from a judgment of the Alberta Court of Appeal (1984), 1984 ABCA 60, 30 Alta. L.R. (2d) 289, 51 A.R. 215, [1984] 3 W.W.R. 632, dismissing the appeal of the accused from his conviction of second degree murder. Appeal dismissed, Estey, Lamer and Wilson JJ. dissenting.

Clayton C. Ruby and Diana Hunt, for the appellant.

Bruce W. Duncan, for the respondent.

The following is the judgment delivered by

1The Court‑‑This appeal is before us as of right. The appeal is from the conviction of Harlie Marvin Nehring on a charge of second degree murder. He was convicted before Egbert J. of the Court of Queen's Bench of Alberta sitting alone. On appeal, two members of the Alberta Court of Appeal (McClung and Stevenson JJ.A.) dismissed the appeal with Harradence J.A. in dissent: (1984), 1984 ABCA 60, 30 Alta. L.R. (2d) 289, 51 A.R. 215, [1984] 3 W.W.R. 632.

2Three points were raised on behalf of the appellant in this Court:

1. That the learned trial judge erred in law in misdirecting himself as to burden of proof and that this misdirection was not a mere slip or harmless deviation from proper direction;

2. That the learned trial judge erred in failing to warn himself regarding the risk in adopting the evidence of the Crown witness Von Wolzogen;

3. That the learned trial judge erred in disregarding and failing to assess evidence which could have affected his verdict.

As the law applicable to the facts of this case is not in dispute, it will suffice to dispose of the appeal in the manner following:

3Four members of the Court (the Chief Justice and McIntyre, Chouinard and Le Dain JJ.) are in substantial agreement with the majority decision of the Court of Appeal of Alberta and would dismiss the appeal. Three members of the Court (Estey, Lamer and Wilson JJ.) are in substantial agreement with the minority judgment of the Alberta Court of Appeal and would allow the appeal.

4In the result, the appeal is dismissed.