SUPREME COURT OF CANADA

Citation: R. v. MacKay, [2005] 3 S.C.R. 607, 2005 SCC 75

Date: 20051214

Docket: 30643

Between:

Kenneth David MacKay

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

Reasons for judgment:

(paras. 1 to 4)

McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)

R. v. Mackay, [2005] 3 S.C.R. 607, 2005 SCC 75

Kenneth David MacKay Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. MacKay

Neutral citation: 2005 SCC 75.

File No.: 30643.

2005: December 14.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for saskatchewan

Criminal law — Trial — Charge to jury — Lengthy charge not misleading jury or having adverse impact on fairness of trial.

Criminal law — Evidence — Circumstantial evidence — Accused convicted of first degree murder — Sufficient evidence to support verdict.

Cases Cited

Referred to: Azoulay v. The Queen, 1952 4 (SCC), [1952] 2 S.C.R. 495; R. v. Lawrence, [1982] A.C. 510.

APPEAL from a judgment of the Saskatchewan Court of Appeal (Tallis, Cameron and Gerwing JJ.A.) (2004), 241 Sask. R. 238, 313 W.A.C. 238, [2004] S.J. No. 103 (QL), 2004 SKCA 24, upholding the guilty verdict against the accused for first degree murder. Appeal dismissed.

William H. Roe, Q.C., for the appellant.

Anthony B. Gerein, for the respondent.

The judgment of the Court was delivered orally by

[1] The Chief Justice — We are all of the view that this appeal should be dismissed. On the issue of the charge, we are satisfied that, while it was not perfect, it was adequate. The function of instructions to the jury is to “explain the relevant law and so relate it to the evidence that the jury may appreciate the issues or questions they must pass upon in order to render a verdict of guilty or not guilty” (Azoulay v. The Queen, 1952 4 (SCC), [1952] 2 S.C.R. 495, at p. 503). The charge here contained no error of law or fact, and it set out the issues and the essential evidence bearing on them. The charge was lengthy — 2.5 days — and the reading for several continuous hours of extended passages of evidence from the judge’s notes is a practice to be discouraged. As the Saskatchewan Court of Appeal, citing English authority, pointed out:

A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge’s note book.

((2004), 241 Sask. R. 238, 2004 SKCA 24, at para. 14 (quoting Lord Hailsham L.C. in R. v. Lawrence, [1982] A.C. 510 (H.L.), at p. 519))

[2] However, in this case we are satisfied the length of the charge did not mislead or confuse the jury or otherwise have an adverse impact on the fairness of the trial. Despite the inordinate length of the judge’s instructions, the jury was ultimately left with a clear understanding of its duty and adequate guidance as to how it was to be discharged.

[3] The second issue is whether there was evidence to support the verdict of first degree murder, on the ground that the accused committed the murder in the course of a sexual assault on the victim. The evidence is circumstantial. However, we are satisfied that there was sufficient evidence for a jury, properly instructed and acting reasonably, to conclude that the murder occurred during the course of a sexual assault.

[4] For these reasons, we would dismiss the appeal.

Judgment accordingly.

Solicitors for the appellant: Roe & Company, Saskatoon.

Solicitor for the respondent: Attorney General for Saskatchewan, Regina.