R. v. Haughton, [1994] 3 SCR 516

R. v. Haughton, [1994] 3 S.C.R. 516

Desmond Haughton                                                                           Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as: R. v. Haughton

File No.: 23665.

1994: October 5.

Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for ontario

                   Criminal law — Charge to jury — Murder — Trial judge erring in instructions concerning included offence of manslaughter — No substantial wrong or miscarriage of justice — Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).

Statutes and Regulations Cited

Criminal Code , R.S.C., 1985, c. C‑46 , s. 686(1) (b)(iii).

                   APPEAL from a judgment of the Ontario Court of Appeal (1992), 11 O.R. (3d) 621, 60 O.A.C. 291, dismissing the accused's appeal from his conviction of second degree murder. Appeal dismissed.

                   James Lockyer and Michelle Levy, for the appellant.

                   John Corelli, for the respondent.

                   The judgment of the Court was delivered orally by

//Sopinka J.//

                   Sopinka J. — The application of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C‑46 , requires the Court to consider whether a jury properly instructed could, acting reasonably, have come to a different conclusion absent the error. In applying this test the findings of the jury in the case under appeal may be a factor in determining what the hypothetical reasonable jury would have done, provided those findings are not tainted by the error. In cases in which an included offence is not left with the jury, a conviction by the jury of the more serious offence cannot generally be relied on by reason of the fact that it may very well be a reaction against a complete acquittal. There is an apprehension that the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable. In this case, the jury had an alternative: they could have convicted of manslaughter. It cannot be said that it did not do so by reason of the failure to charge them by reference to the objective standard of liability with respect to manslaughter. In convicting of murder the jury must have found that the appellant had subjective foresight of death. It is impossible to hold that they came to this conclusion because they were unable to conclude that the appellant had subjective foresight of bodily harm.

                   The appeal is dismissed.

                   Judgment accordingly.

                   Solicitors for the appellant: Pinkofsky, Lockyer, Kwinter, Toronto.

                   Solicitor for the respondent: The Attorney General for Ontario, Toronto.