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The Ontario Court of Appeal dismissed Saboon’s appeal, allowed Morrison’s appeal, substituted manslaughter for murder, and imposed a 14-month sentence.
Sentencing after a jury conviction for second degree murder, robbery and vehicle theft. The court imposed life imprisonment with 10 years parole ineligibility.
The trial judge did not err: the evidence only supported that the respondent knew the victim was shot, not that he subjectively knew or strongly suspected the victim was probably dead and deliberately avoided inquiry. Wilful blindness requires suspicion of probability and deliberate avoidance; the record supported recklessness or indifference at best. There was also no air of reality to accessory-after-the-fact to attempted murder because the evidence did not raise a live dispute that the principal did not cause the victim's death. Therefore the directed verdict of acquittal on the accessory-…
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Appeal dismissed: trial judge correctly declined to leave accessory-after-fact to attempted murder to the jury because there was no air of reality to attempted murder on the trial evidence (no live issue on causation); although attempted murder can in rare cases be an included offence under ss.660/662, where the principal's acts indisputably caused death a jury cannot reasonably convict of attempt and thus accessory-after-fact to attempted murder was not available.
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The trial judge did not err: excluding the appellant's prior statements to his first lawyer was a proper discretionary ruling on probative value versus prejudice; there was an evidentiary basis to instruct the jury on constructive first degree murder under s.231(5) given kidnapping by fraud and the appellant's active role in delivering and confining the victim; and the charge, read as a whole, adequately instructed the jury on the factual findings required for s.231(5).
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Conviction appeal dismissed: trial judge properly left manslaughter to the jury because the appellant's testimony (explicit denial of intent and trial counsel's concession) created an air of reality; self-defence and out-of-court statement instructions were adequate in the circumstances. Sentence appeal allowed: trial judge misstated the intended sentence (read eight years but intended six), failed to correct the error promptly, was not functus officio at the time, and appellate court must sentence afresh; having reviewed the record and sentencing factors the appropriate sentence is six years…
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The Court of Appeal dismissed the conviction appeal, holding the trial judge did not err in refusing to self‑instruct a rolled‑up direction or in assessing the witness’s reliability; the sentencing judge erred by failing to properly weigh mitigating factors (advanced intoxication and agitation, youth, Gladue systemic factors, immediate remorse and rehabilitation) when accepting the parties’ joint recommendation, and Anthony‑Cook does not bind joint recommendations following a contested trial; the 18‑year parole ineligibility was demonstrably unfit and was substituted with a 13‑year parole ine…
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The trial judge acted within his discretion in removing manslaughter from the jury because the agreed pathology evidence left no realistic possibility that the killing was accidental or unintentional, but erred by directing the jury to find the appellant had the mens rea for murder if satisfied he was the shooter because only the jury could determine that non-admitted essential element; the error was nonetheless harmless under the curative proviso because the jury independently found the killing was planned and deliberate, which necessarily includes intentionality, and the instructions on aft…
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The appeal is allowed and a new trial ordered because the trial judge failed to adequately explain why after-the-fact conduct supported a finding of murder rather than manslaughter and also referred to an unconstitutional objective fault standard in s.229(c) of the Criminal Code; these legal and reasoning errors require setting aside the conviction and ordering a new trial.
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Mr. Medwedrich was sentenced for first degree murder to life imprisonment with no parole eligibility for 25 years, with ancillary weapons, DNA, and forfeiture orders made.
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