R. v. Jack, [1994] 2 S.C.R. 310

Brian Gordon Jack Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Jack

File No.: 23731.

1994: May 24.

Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.

on appeal from the court of appeal for manitoba

Criminal law ‑‑ Charge to jury ‑‑ Accused acquitted of second degree murder after second trial ‑‑ Trial judge's slip in recharge amounting to serious misdirection ‑‑ Order for new trial upheld.

Criminal law ‑‑ Evidence ‑‑ Timely disclosure ‑‑ Crown making full disclosure before second trial ‑‑ Court of Appeal having no jurisdiction to order stay for failure to disclose since no application had been made to trial court ‑‑ Order for new trial not amounting to abuse of process.

Cases Cited

Referred to: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

APPEAL from a judgment of the Manitoba Court of Appeal (1993), 1993 CanLII 15019 (MB CA), 88 Man. R. (2d) 93, 51 W.A.C. 93, allowing the Crown's appeal from the accused's acquittal on a charge of second degree murder. Appeal dismissed.

Richard J. Wolson and John A. McAmmond, for the appellant.

Richard A. Saull, for the respondent.

The judgment of the Court was delivered orally by

Sopinka J. ‑‑ We agree with the Chief Justice of Manitoba that in the circumstances the slip in the charge to the jury amounted to a serious misdirection. We are satisfied with the requisite degree of certainty that, absent the error, the verdict would not inevitably have been the same.

With respect to the failure of the respondent to make timely disclosure, in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 348, we stated: ". . . when a court of appeal is called upon to review a failure to disclose, it must consider whether such failure impaired the right to make full answer and defence". In our opinion, full disclosure had been made before the second trial. No application for a stay was made to the trial court on the second trial. The Court of Appeal therefore had no jurisdiction to order a stay on this ground and we are in the same position. This is a matter that should be dealt with at trial and, if the failure to disclose impaired the appellant's ability to make full answer and defence, this matter can be raised in the new trial ordered by the Court of Appeal.

We agree with the Court of Appeal that ordering a new trial in the circumstances of this case is not one of those "clearest of cases" which would amount to an abuse of process.

The appeal is dismissed.

Judgment accordingly.

Solicitors for the appellant: Walsh, Micay & Company, Winnipeg.

Solicitor for the respondent: The Department of Justice, Winnipeg.