Oral Judgments

Criminal Law: Homicide; Conspiracy

R. v. Kelsie, 2019 SCC 17 (38129) Judgment rendered April 15, 2019

“Karakatsanis J.: “We agree with the conclusion of the Court of Appeal that the trial judge’s instructions on party liability for first degree murder were in error. As a result, the conviction for first degree murder cannot stand. We do not, however, agree with the Court of Appeal that the trial judge was required to charge the jury on manslaughter. While not determinative, we agree with defence counsel’s position at trial that there was no basis to leave it with the jury as an available verdict. In our view, the evidence was, at best, tenuous and speculative, and did not meet the air of reality test. With respect to the conspiracy charge, we do not agree with the Court of Appeal. In the particular circumstances of this case, we are not persuaded that the trial judge erred in the evidence he left for the jury to consider as part of the third prong of the Carter test for the admissibility of co-conspirator hearsay (R. v. Carter, [1982] 1 S.C.R. 938). We note, in this regard, that the defence of the accused to the charge of conspiracy is that he did not know the nature and scope of the alleged conspiracy. Accordingly, we would not have interfered with the conviction for conspiracy to commit murder. Given our conclusions, the parties agree that it would be appropriate to substitute a verdict of second degree murder in place of the verdict for first degree murder. We are satisfied that such a verdict is appropriate in the circumstances. As a result, pursuant to s. 686(1)  (b)(i) and s. 686(3)   of the Criminal Code, R.S.C. 1985, c. C-46, we would have dismissed the appeal and substituted a conviction for second degree murder. Therefore, the appeal is allowed in part. The conspiracy conviction is restored and a second degree murder conviction is entered. Counsel are encouraged to agree on the appropriate sentence regarding eligibility for parole. The matter is remitted to the trial court for sentencing.”

Criminal Law: Delay; Mootness

R. v. Thanabalasingham, 2019 SCC 21 (37984) Judgment rendered April 24, 2019

The Chief Justice: “The test to be applied in this case is a two-part test as stated in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, and R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385. The test requires the court to first determine whether the case is moot. If the matter is moot, the court may nevertheless choose to exercise its discretion to hear the case on the merits based on the factors set out in Borowski and Smith. In this case, the majority of the Court of Appeal erred at the first stage of the test because the case is clearly not moot. The mere fact that an individual has been deported, even if he has been deported to a country with which Canada does not have an extradition treaty, does not render a case moot. The underlying basis for the criminal proceedings has not disappeared and there remains a live controversy even if the accused’s return to Canada is unlikely. Justice Abella, concurring on the result, is of the view that the appeal is moot, but based on the factors set out in para. 50 of Smith, thinks that the Court of Appeal should have exercised its discretion to decide the merits having heard the full argument over two days. We would all therefore allow the appeal and remit the matter to the Quebec Court of Appeal for decision on the merits.”