Thomas N. Basciano

The Crown appealed the accused's acquittal on a charge of attempted murder and the sentence imposed for a manslaughter conviction arising from a barroom shooting.

The Court of Appeal allowed the acquittal appeal, finding the trial judge erred by leaving self-defence under s. 34(2) of the Criminal Code to the jury when there was no air of reality to the claim that the intervening bystanders were committing an unlawful assault.

The trial judge also erred by failing to instruct the jury on s. 27, which permits bystanders to use force to prevent an offence.

A new trial was ordered for the attempted murder charge.

The sentence appeals by both the Crown and the accused were dismissed.

The respondent Bank brought a motion for security for costs of an appeal.

The appellants had previously commenced an action against the Bank which was struck, and a costs order of $5,000 remained unpaid.

The appellants then commenced a second, almost identical action which was struck on the basis of res judicata, and appealed that decision.

The Court of Appeal granted the Bank's motion under Rule 61.06(1)(c), finding good reason to order security for costs as the appellants had ignored the prior costs order and failed to disclose the second action to the court during the first proceeding.