R. v. Roberts, 2005 SCC 3, [2005] 1 SCR 22

                                                 SUPREME COURT OF CANADA

Between:

Eifion Wyn Roberts

Appellant

v.

Her Majesty the Queen

Respondent

Coram: Major, Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Roberts, [2005] 1 S.C.R. 22, 2005 SCC 3

Eifion Wyn Roberts                                                                                          Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Roberts

Neutral citation:  2005 SCC 3.

File No.:  30282.

2004:  December 15; 2005:  January 27.

Present:  Major, Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for alberta

Criminal law — Defences — Provocation — Accused convicted of second degree murder — No air of reality supporting objective components of test for defence of provocation — Court of Appeal correct in upholding trial judge’s decision not to leave defence of provocation with jury.

Held (Fish J. dissenting):  The appeal should be dismissed.

APPEAL from a judgment of the Alberta Court of Appeal (Côté, Conrad and Fruman JJ.A.) (2004), 185 C.C.C. (3d) 382, 346 A.R. 325, 320 W.A.C. 325, [2004] A.J. No. 356 (QL), 2004 ABCA 114, upholding the accused’s conviction for second degree murder.  Appeal dismissed, Fish J. dissenting.

Charles B. Davison, for the appellant.

Eric Tolppanen, for the respondent.

The judgment of Major, Bastarache, Binnie, Deschamps, Abella and Charron JJ. was delivered by

1                                   Major J. — We agree that the majority of the Alberta Court of Appeal was correct in finding no air of reality supporting the objective components of the test for the defence of provocation.

2                                   The appeal is dismissed.

The following are the reasons delivered by

3                                   Fish J. (dissenting) — However weak the evidence of provocation may have appeared to the majority in the Court of Appeal, or appears to us in this Court, I agree with Conrad J.A., dissenting, that a reasonable jury, properly instructed, could have been left with a reasonable doubt on that issue.  The defence of provocation should therefore have been left to the jury.

4                                   With respect for those who see the matter differently, I would allow the appeal on this ground alone and order a new trial.

Appeal dismissed, Fish J. dissenting.

Solicitors for the appellant:  Abbey Hunter Davison Spencer, Edmonton.

Solicitor for the respondent:  Alberta Justice, Calgary.