Her Majesty The Queen (appellant) v. Robert Sarrazin and Darlind Jean (respondents) (33917; 2011 SCC 54; 2011 CSC 54) Indexed As: R. v. Sarrazin (R.) et al. Supreme Court of Canada McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ. November 4, 2011. Summary: A shooting in February 1998, resulted in the victim's death a month later. The two accused (Sarrazin and Jean) were arrested within two weeks of the shooting and in June 2000 were convicted of second degree murder. Both were sentenced to life imprisonment without eligibility for parole for 18 years. The accused appealed. The Ontario Court of Appeal, in a decision reported (2005), 196 O.A.C. 224, allowed the appeal and ordered a new trial. After a second trial in November 2006, the accused were again convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 18 years. The accused appealed again. The appeals proceeded in March 2010, at which time, the accused had been in custody for over 12 years since their arrests in 1998. On appeal, the accused argued that the trial judge's instruction to the jury that it had to acquit if it had a reasonable doubt on the issue of causation was wrong in law and was prejudicial to the accused. They argued that the trial judge should have instructed the jury that it could convict the accused of attempted murder if it had a reasonable doubt as to the cause of the victim's death (i.e., doubt as to whether the victim's death was caused by consumption of cocaine shortly before his death rather than the shooting). The Ontario Court of Appeal, Moldaver, J.A., dissenting, in a decision reported 268 O.A.C. 200, allowed the appeal, set aside the verdicts and ordered a third trial for both accused on the charge of second degree murder. The court was unanimously of the view that the trial judge erred in law in failing to leave a conviction for attempted murder as a possible verdict. Moldaver, J.A., opined that the error resulted in no substantial wrong or miscarriage of justice and would have dismissed the appeal (Criminal Code, s. 686(1)(b)(iii)). In the view of the majority, the curative proviso could not overcome the legal error and there had to be a new trial. The Crown appealed. The Supreme Court of Canada, Cromwell, Deschamps and Rothstein, JJ., dissenting, dismissed the appeal. Offences against person and reputation - Attempted murder - Jury charge - The Supreme Court of Canada agreed with the Ontario Court of Appeal that attempted murder was an included offence in murder - See paragraph 20.
Offences against person and reputation - Attempted murder - Jury charge - [See Criminal Law - Topic 5045]. Attempted murder - [See first and Criminal Law - Topic 5045]. Included or alternative offences - [See first and Criminal Law - Topic 5045]. offences - [See first and Criminal Law - Topic 5045]. Procedure - Verdicts - Included offences - Inclusion in murder - [See first Criminal Law - Topic 1258 and Criminal Law - Topic 5045]. Criminal Law - Topic 5045 Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - The accused were were convicted by a jury of second degree murder - On appeal, the Ontario Court of Appeal held that the trial judge erred in failing to instruct the jury on attempted murder - The court held that the error could not be overcome by the "curative proviso" (Criminal Code, s. 686(1)(b)(iii)) which permitted an appellate court to uphold a jury's verdict notwithstanding an error of law, where no substantial wrong or miscarriage of justice had occurred - A new trial was ordered - The Crown appealed, raising a question as to whether the requirements for the application of the proviso should be relaxed, and Cases Noticed: R. v. Poole (W.S.) (1997), 91 B.C.A.C. 279; 148 W.A.C. 279 (C.A.), refd to. [para. 10]. R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 17]. R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 19]. R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [paras. 23, 45]. R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [paras. 24, 43]. R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd
to. [para. 24]. R. v. Haughton (D.), [1994] 3 S.C.R. 516; 179 N.R. 1; 79 O.A.C. 319, refd to. [para. 29]. Gilbert v. R., [2000] HCA 15; 201 C.L.R. 414, refd to. [paras. 35, 49]. R. v. Jackson and Davy, [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161, refd to. [paras. 36, 48]. Bullard v. R., [1957] A.C. 635 (P.C.), refd to. [para. 49]. R. v. Coutts, [2006] 4 All E.R. 353; [2006] UKHL 39; 360 N.R. 362, refd to. [para. 49]. R. v. Maxwell (1990), 91 Cr. App. Rep. 61 (H.L.), refd to. [para. 50]. Statutes Noticed: Criminal Code, R.S.C. 1985, c. C-46, sect. 229(a), sect. 660, sect. 662 [para. 20]; sect. 686(1)(a)(ii), sect. 686(1)(b)(iii) [para. 7]. Counsel: James K. Stewart, for the appellant; Russell Silverstein and Ingrid Grant, for the respondent, Robert Sarrazin; Philip Campbell and Howard L. Krongold, for the respondent, Darlind Jean. Solicitors of Record: Attorney General of Ontario, Toronto, Ontario, for the appellant; Russell Silverstein & Associate, Toronto, Ontario, for the respondent, Robert Sarrazin; Lockyer Campbell Posner, Toronto, Ontario, for the respondent, Darlind Jean. This appeal was heard on April 18, 2011, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The decision of the court was delivered, in both official languages, on November 4, 2011, including the following opinions: Binnie (McLachlin, C.J.C., LeBel, Fish, Abella and Charron, JJ., concurring) - see paragraphs 1 to 40; Cromwell, J., dissenting (Deschamps and Rothstein, JJ., concurring) - see paragraphs 41 to 59. Editor: Elizabeth M.A. Turgeon Appeal dismissed. Offences against person and reputation - Attempted murder - Jury charge - The accused were were convicted by a jury of second degree murder - On appeal, the Ontario Court of Appeal held that the trial judge erred in failing to instruct the jury on attempted murder - The court held that the error could not be overcome by the "curative proviso" (Criminal Code, s. 686(1)(b)(iii)) which permitted an appellate court to uphold a jury's verdict notwithstanding an error of law, where no substantial wrong or miscarriage of justice had occurred - A new trial was ordered - The Crown appealed, raising a question as to
whether the requirements for the application of the proviso should be relaxed, and Attempted murder - The Supreme Court of Canada agreed with the Ontario Court of Appeal that attempted murder was an included offence in murder - See paragraph 20. Attempted murder - The accused were were convicted by a jury of second degree murder - On appeal, the Ontario Court of Appeal held that the trial judge erred in failing to instruct the jury on attempted murder - The court held that the error could not be overcome by the "curative proviso" (Criminal Code, s. 686(1)(b)(iii)) which permitted an appellate court to uphold a jury's verdict notwithstanding an error of law, where no substantial wrong or miscarriage of justice had occurred - A new trial was ordered - The Crown appealed, raising a question as to whether the requirements for the application of the proviso should be relaxed, and whether, relaxed or not, the proviso applied in this case to deny the accused the new trial ordered by the Court of Appeal - The Supreme Court of Canada agreed with the majority of the Court of Appeal that the rules governing the application of s. 686(1)(b)(iii) should not be relaxed - The proviso had no application in the circumstances of this case - The Included or alternative offences - The Supreme Court of Canada agreed with the Ontario Court of Appeal that attempted murder was an included offence in murder - See paragraph 20. Included or alternative offences - The accused were were convicted by a jury of second degree murder - On appeal, the Ontario Court of Appeal held that the trial judge erred in failing to instruct the jury on attempted murder - The court held that the error could not be overcome by the "curative proviso" (Criminal Code, s. 686(1)(b)(iii)) which permitted an appellate court to uphold a jury's verdict notwithstanding an error of law, where no substantial wrong or miscarriage of justice had occurred - A new trial was ordered - The Crown appealed, raising a question as to whether the requirements for the application of the proviso should be relaxed, and whether, relaxed or not, the proviso applied in this case to deny the accused the new trial ordered by the Court of Appeal - The Supreme Court of Canada agreed with the majority of the Court of Appeal that the rules governing the application of s. 686(1)(b)(iii) should not be relaxed - The proviso had no application
in the circumstances of this case - The offences - The Supreme Court of Canada agreed with the Ontario Court of Appeal that attempted murder was an included offence in murder - See paragraph 20. offences - The accused were were convicted by a jury of second degree murder - On appeal, the Ontario Court of Appeal held that the trial judge erred in failing to instruct the jury on attempted murder - The court held that the error could not be overcome by the "curative proviso" (Criminal Code, s. 686(1)(b)(iii)) which permitted an appellate court to uphold a jury's verdict notwithstanding an error of law, where no substantial wrong or miscarriage of justice had occurred - A new trial was ordered - The Crown appealed, raising a question as to whether the requirements for the application of the proviso should be relaxed, and whether, relaxed or not, the proviso applied in this case to deny the accused the new trial ordered by the Court of Appeal - The Supreme Court of Canada agreed with the majority of the Court of Appeal that the rules governing the application of s. 686(1)(b)(iii) should not be relaxed - The proviso had no application in the circumstances of this case - The Procedure - Verdicts - Included offences - Inclusion in murder - The Supreme Court of Canada agreed with the Ontario Court of Appeal that attempted murder was an included offence in murder - See paragraph 20. Procedure - Verdicts - Included offences - Inclusion in murder - The accused were were convicted by a jury of second degree murder - On appeal, the Ontario Court of Appeal held that the trial judge erred in failing to instruct the jury on attempted murder - The court held that the error could not be overcome by the "curative proviso" (Criminal Code, s. 686(1)(b)(iii)) which permitted an appellate court to uphold a jury's verdict notwithstanding an error of law, where no substantial wrong or miscarriage of justice had occurred - A new trial was ordered - The Crown appealed, raising a question as to whether the requirements for the application of the proviso should be relaxed, and