R. v. Neverson, [1992] 1 SCR 1014

R. v. Neverson, [1992] 1 S.C.R. 1014

Septimus Neverson                                                                            Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. Neverson

File No.:  22587.

1992:  April 30.

Present:  La Forest, L'Heureux‑Dubé, Gonthier, Cory and Stevenson JJ.

on appeal from the court of appeal for quebec

                   Criminal law ‑‑ Trial ‑‑ Addresses to jury ‑‑ Accused charged with murder ‑‑ Murder weapon found in accused's car ‑‑ Defence counsel incorrectly summarizing evidence concerning access to accused's car in his address to jury

‑‑ Defence counsel's errors not corrected in trial judge's charge ‑‑ Accused's acquittal set aside by Court of Appeal and new trial ordered ‑‑ Verdict would not have been necessarily the same if evidence had been correctly summarized.

Cases Cited

                   Referred to:  R. v. Morin, [1988] 2 S.C.R. 345.

                   APPEAL from a judgment of the Quebec Court of Appeal (1991), 69 C.C.C. (3d) 80, 42 Q.A.C. 16, setting aside the accused's acquittal on a charge of first degree murder, and ordering a new trial.  Appeal dismissed.

                   Ivan Lerner, for the appellant.

                   Normand J. Chénier, for the respondent.

//La Forest J.//

                   The judgment of the Court was delivered orally by

                   La Forest J. ‑‑ It will not be necessary to hear from you Mr. Chénier.  The Court is ready to hand down judgment.  The judgment will be pronounced by Mr. Justice Stevenson.

                   Stevenson J. ‑‑ This is an appeal, as of right, from a judgment of the Quebec Court of Appeal ordering a new trial when the accused, appellant, had been acquitted at trial by a jury.

                   Before us, counsel for the appellant quite properly and fairly conceded that the dissenting member of the Court of Appeal had based her disagreement with the majority of that court on one single question:  accepting that the trial judge erred, had the Crown, after demonstrating the error, also met the burden of showing that on a new trial the verdict would not necessarily have been the same.  That test was recently discussed in R. v. Morin, [1988] 2 S.C.R. 345, at p. 374.  We are in agreement with the conclusions of McCarthy and Nichols JJ.A. on that question.  The judgment ordering a new trial stands.

                   The appeal is dismissed.

                   Judgment accordingly.

                   Solicitor for the appellant:  Ivan Lerner, Montréal.

                   Solicitor for the respondent:  Normand J. Chénier, Montréal.