Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Verdicts ‑‑ Manslaughter ‑‑ Trial judge correct in not leaving with jury manslaughter as available verdict.
APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (1994), 18 O.R. (3d) 33, 69 O.A.C. 321, 89 C.C.C. (3d) 39, 29 C.R. (4th) 327, allowing the accused's appeal, setting aside his conviction on a charge of second degree murder, and ordering a new trial limited to the question of whether the accused was guilty of second degree murder or manslaughter. Cross‑appeal allowed, Lamer C.J. and Sopinka J. dissenting. Appeal dismissed.
Brian H. Greenspan, William Hechter and Sharon E. Lavine, for the appellant.
Kenneth L. Campbell, for the respondent.
The judgment of the Court was delivered orally by
1 Lamer C.J. ‑‑ The Court, the Chief Justice and Justice Sopinka dissenting, is of the view that based on the totality of the evidence there was no error committed by the trial judge in not leaving with the jury manslaughter as an available verdict. Accordingly the cross‑appeal is allowed, the Chief Justice and Sopinka J. dissenting, and the appeal is dismissed, the order entered by the Court of Appeal is set aside and the conviction entered by the trial court is restored. The Chief Justice and Sopinka J., in dissent, agree with the Court of Appeal on this issue.
Judgment accordingly.
Solicitors for the appellant: Greenspan, Humphrey, Toronto.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.
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