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OCA rules judge must recharge jury if it doesn't grasp issue: Hicks

The Ontario Court of Appeal recently set aside a first-degree murder conviction after ruling judges must recharge a jury if they fail to understand the issues at hand, Toronto criminal lawyer Christopher Hicks tells The Lawyer's Daily

“In the case law, you have to [handle] these questions as a trial judge with the utmost care and attention and that wasn’t done," says Hicks, a partner at Hicks Adams LLP, who represented the man before the appeal court.

Ontario Court of Appeal (OCA) Justice Gary Trotter ruled there's no doubt the accused killed his half-brother, but the issue of intent is the basis for setting aside the conviction in the shotgun slaying.

"A new trial must be ordered because of shortcomings in the instructions on second- degree murder," Trotter wrote in his decision. "There is also an aspect of the instruction on first-degree murder that requires discussion. It is unnecessary to address the remaining issues, which are best left for resolution by the judge presiding at the new trial.

"As a whole, the charge to the jury on the intent for murder was confusing. This conclusion is borne out by the jury’s request for assistance: 'need more guidance or instruction on state of mind required for murder,'" he said.

Hicks tells the online legal publication that in answer to their query, the trial judge repeated what he had said earlier to the jury "and that doesn’t help because they [the jury] asked a question because they didn’t get it. You can’t just say the same thing to them again.”

He says the jury asked Superior Court Justice Robert Riopelle a question about the main issue at trial — the necessary intention of the crime of murder — and when he "fumbled that question from the jury it pretty much settled the matter as far as the appeal was concerned.

"He didn’t properly instruct the jury on the intention for murder and there was some real nuance to it because, first of all, (the accused) said it was an accident,” Hicks says in the article.

The defendant told police he meant to shoot a computer or stereo near his brother, not to kill him in the 2014 incident.

“That was part of his defence and you had to clarify that to the jury because you have to have the intention to kill to be convicted of murder and he said, ‘I didn’t intend to kill my brother.’ That was a key issue," Hicks tells Lawyers Daily.

“And as far as the intent was concerned, he clearly had some mental issues," he says. The accused "was somewhat unstable, but that wasn’t developed very well by trial counsel."

"There’s no expert evidence, but still there was some evidence that this client was having some issues with his mental stability and that would go to the intent as well," he says. "Not simply the intent to murder, but the intent to plan and deliberate a murder because he was convicted [of first-degree murder] on that basis.”

Lawyers must be prepared to “dive into the books” to understand the law and grasp the duty judges have to the jury, he adds in the interview.

“Know what the judge should say to the jury on the proper intention for murder and what affects the intention for murder. You have to know that judges have to take questions from juries and give them great consideration and attention.

“You have to be ready for it to make sure the judge properly instructs the jury on major issues,” Hicks says in the piece.

A date for the new trial has not been set yet.

Hicks says he's pleased the appeal was granted, in part because the accused is indigenous.

“I have the greatest sympathy for indigenous Canadians who are caught in the Canadian justice system and too frequently are not treated well," he tells AdvocateDaily.com.

"And this is one of those examples. It’s a very important issue. There’s racism in the criminal justice system and it has to be spoken to.”

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