R. v. Bird, 2009 SCC 60, [2009] 3 SCR 638

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

Stephanie Rosa Bird

Respondent

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

______________________________

R. v. Bird, 2009 SCC 60, [2009] 3 S.C.R. 638

Her Majesty The Queen                                                                                                    Appellant

v.

Stephanie Rosa Bird                                                                                                       Respondent

Indexed as:  R. v. Bird

Neutral citation:  2009 SCC 60.

File No.:  33054.

2009:  December 11; 2009:  December 18.

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

on appeal from the court of appeal for alberta

Criminal law — Defences — Abandonment — Accused charged with first degree murder, kidnapping and aggravated sexual assault — Trial judge finding air of reality to defence of abandonment and convicting accused of manslaughter, kidnapping and aggravated sexual assault — Court of Appeal erring in dismissing Crown’s appeal from manslaughter conviction — Evidence incapable of supporting defence of abandonment — Facts as found by trial judge clearly establishing planned and deliberate murder — Conviction for manslaughter set aside and conviction for first degree murder entered.

Held:  The appeal should be allowed.

APPEAL from a judgment of the Alberta Court of Appeal (Berger and Costigan JJ.A. and Sulyma J. (ad hoc)), 2009 ABCA 45, 2 Alta. L.R. (5th) 88, 448 A.R. 124, 447 W.A.C. 124, 243 C.C.C. (3d) 419, [2009] A.J. No. 107 (QL), 2009 CarswellAlta 157, upholding the accused’s conviction for manslaughter entered by Ross J., 2007 ABQB 289, 416 A.R. 223, [2007] A.J. No. 765 (QL), 2007 CarswellAlta 599.  Appeal allowed.

Susan D. Hughson, Q.C., and Joanne Dartana, for the appellant.

Colleen M. Connolly, for the respondent.

The following is the judgment delivered by

[1]     The Court — We agree with Costigan J.A., dissenting, that the evidence was incapable of supporting the defence of abandonment.  No other defence arises on the facts.

[2]     The appeal is therefore allowed and the conviction for manslaughter is set aside.  As the facts found by the trial judge clearly establish that the murder was planned and deliberate, and involved the unlawful confinement of the victim at the time of the killing, a conviction for first degree murder is entered.

Appeal allowed.

Solicitor for the appellant:  Attorney General of Alberta, Edmonton.

Solicitors for the respondent:  Bokenfohr & Connolly, Edmonton.