Criminal Law

OCA orders new trial in manslaughter case after rare Crown concession

By Jennifer Pritchett, Associate Editor

The Ontario Court of Appeal (OCA) has ordered a new trial for two men convicted of manslaughter after the Crown, in a rare move, conceded that the trial judge’s charge to the jury was not sufficient to give them an understanding of the essential issues and a new proceeding was the fair remedy, says Toronto criminal lawyer Richard Litkowski. Read Toronto Star Hamilton Spectator Law Times

“We are very pleased that the Court of Appeal affirmed that there were serious flaws in the charge to the jury,” Litkowski tells AdvocateDaily.com.

Litkowski and Jessica Zita, both associates with Hicks Adams LLP, represented George Cooke on appeal. Cooke and his nephew, Matthew Cooke, were convicted of manslaughter in 2015 in connection with the death of Jesse Kovacs of Hamilton. Christopher Hicks, a partner with Hicks Adams LLP, represented George Cooke at trial.

In its factum to the OCA, the Crown states that after a thorough review, the “respondent must concede that the trial judge’s charge to the jury on the offence of manslaughter was not sufficient to give the jury a fair understanding of the essential issues in place (factual causation and the mental element of manslaughter) and the evidence as it related to the positions of the parties on those issues.

“The respondent, therefore, agrees that the fair remedy is to order a new trial.”

The OCA agreed and ordered a new trial for both men on Monday.

Litkowski says the cause of death was a hotly contested issue at the trial.

“As such, the trial judge’s instructions had to help the jury grapple with the complex evidence surrounding this issue,” he says. “Unfortunately, despite the objections registered at the trial, those instructions did not properly assist the jury in coming to a fair verdict."

Litkowski, as outlined in the appellant's factum to the OCA, appealed his client’s conviction on the basis that the trial judge erred in several ways, including that the judge: failed to draft an organized jury charge and failed to properly assist the jury; failed to leave the jury with a clear understanding of the factual issues involved; erred in failing to assist the jury in clearly understanding the legal principles governing the factual issues and how the evidence related to those issues; and failed to summarize the evidence for the jury that was relevant to the position of the parties, thereby failing to put the defence position fully and fairly to the jury.

Specifically, the appellant says in the factum that the “differing expert opinions on the potential causes of death were the crux of the case, yet there was no discussion on how the expert opinions could be related to the facts. Most troubling is that there was no reference to how the expert opinions fit into the defence position.”

Both appellants had argued for their convictions to be quashed and a new trial ordered, says the factum.

The new trial hasn’t yet been scheduled.

“The Crown on appeal is to be commended for its very fair approach, by acknowledging that the trial judge’s charge was not sufficient to give the jury a fair understanding of the essential issues in play and the evidence as it related to the positions of the parties on those issues," Litkowski says.

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