R. v. Leming
The appeal is allowed because the trial judge failed to adequately direct the jury to consider the cumulative effect of intoxication, provocation and excessive force on intent and self‑defence, creating a real possibility of a miscarriage of justice; conviction set aside and new trial ordered.
Source-derived case information.
- Citation
- C32146
- Parties
- Respondent: Her Majesty the Queen; Appellant: Jeremy Leming
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 27 September 2000
- Procedural Posture
- Criminal / Appeal From Conviction
- Outcome
- Appeal allowed; conviction set aside; new trial ordered on second degree murder.
- Legal Topics
- Jury Charge, Mens Rea, Cumulative Effect of Defences, Miscarriage of Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Jeremy Leming
Appellant
Procedural Posture
Criminal / Appeal From Conviction
Legal Issues
- 1 Whether the trial judge failed to instruct the jury to consider the cumulative effect of intoxication, provocation and excessive force on intent and self‑defence
- 2 Whether that failure amounted to a substantial wrong or miscarriage of justice warranting a new trial
- 3 Whether compartmentalizing defences as "alternative" in the charge was appropriate
Ratio Decidendi
The appeal is allowed because the trial judge failed to adequately direct the jury to consider the cumulative effect of intoxication, provocation and excessive force on intent and self‑defence, creating a real possibility of a miscarriage of justice; conviction set aside and new trial ordered.
Court Disposition
Appeal allowed; conviction set aside; new trial ordered on second degree murder.
Orders
- Conviction for second degree murder set aside
- New trial ordered on charge of second degree murder
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Leming Collection Decisions of the Court of Appeal Date 2000-09-27 Docket numbers C32146 Judges Rosenberg, Marc; Moldaver, Michael James; Simmons, Janet M. Subject Criminal Decision Content DATE: 20000927 DOCKET: C32146 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) and JEREMY LEMING (Appellant) BEFORE: ROSENBERG and MOLDAVER JJ.A. and SIMMONS J. (ad hoc) COUNSEL: Clay M. Powell, Q.C., for the appellant Philip Downes, for the respondent HEARD: September 22, 2000 On appeal from conviction for second degree murder by The Honourable Mr. Justice John G. Kerr, with a jury, dated June 25, 1998. E N D O R S E M E N T [1] We are not satisfied that the trial judge adequately dealt with the question of intent and the impact of the combined effect of intoxication, provocation and excessive force in self-defence. The trial judge did refer to the consumption of alcohol separately and in the context of provocation under s.232 of the Criminal Code. Unfortunately, however, he compartmentalized the various defences in the course of the charge and more importantly at the conclusion of his charge when he referred to them as "alternative" defences. In fairness to the trial judge, there was no objection to this aspect of the charge. Nevertheless, we cannot be satisfied that the jury would have appreciated the need to consider the cumulative effect of the evidence of intoxication and the fear and anger experienced by the appellant. See R. v. Nealy (1986), 30 C.C.C. (3d) 460 (Ont. C.A.). We have therefore not been persuaded that no substantial wrong or miscarriage of justice was occasioned. [2] Accordingly, the appeal is allowed, the conviction set aside and a new trial ordered on second degree murder. (signed) "M. Rosenberg J.A." (signed) "M. J. Moldaver J.A." (signed) "J. Simmons J. ad hoc"