in order to render a statement involuntary. The Crown had failed to prove beyond
a reasonable doubt that the inculpatory statement was voluntary.
The trial judge erred in declining to leave defence of others to the jury on the
basis that the accused had testified that he stabbed the victim for the purpose of
defending or protecting himself. There were other aspects of the accused’s
testimony in-chief and his statement to the police, as well as the testimony of
others, that provided a basis for the defence to be left with the jury.
The trial judge’s instructions to the jury on self-defence were unbalanced. Not
only did the trial judge telegraph to the jury that he did not find the accused’s
testimony about his own injuries credible, he also failed to refer to evidence that
supported the accused’s version of events.
Cases referred to
R. v. Oickle,  2 S.C.R. 3,  S.C.J. No. 38, 2000 SCC 38, 190 D.L.R.
(4th) 257, 259 N.R. 227, J.E. 2000-1846, 187 N.S.R. (2d) 201, 147 C.C.C. (3d) 321,
36 C.R. (5th) 129, REJB 2000-20234, 47 W.C.B. (2d) 247; R. v. Spencer, 
1 S.C.R. 500,  S.C.J. No. 11, 2007 SCC 11, 276 D.L.R. (4th) 565, 358 N.R.
278,  5 W. W.R. 201, J.E. 2007-504, 237 B.C.A.C. 1, 64 B.C.L.R. (4th) 203, 217
C.C.C. (3d) 353, 44 C.R. (6th) 199, EYB 2006-115980, 72 W.C.B. (2d) 271; R. v. Van
Wyk,  O.J. No. 3515, 104 O. T.C. 161, 6 M.V.R. (4th) 248, 43 W.C.B. (2d) 371
(S.C.J.); R. v. Wabason,  O.J. No. 1012, 2018 ONCA 187, 361 C.C.C. (3d) 98,
44 C.R. (7th) 246, 144 W.C.B. (2d) 448
Statutes referred to
Criminal Code, R.S.C. 1985, c. C- 46, s. 34 [as am.]
APPEAL by the accused from the conviction entered by André J.
of the Superior Court of Justice, sitting with a jury, on October 4,
Frank Addario and Samara Secter, for appellant.
Christopher Webb and Dena Bonnet, for respondent.
BY THE COURT: —
A. Facts and Issues
[ 1] The appellant was found guilty of second degree murder by
a jury. The events giving rise to the conviction occurred at and
near a backyard house party. The appellant was 19 years old at
[ 2] It may be unclear whether the appellant and his friends
were invited to the party by a guest. What is clear is that they did
not know the host and were asked to leave. As they were leaving,
one of the partygoers (the “instigator”) “sucker-punched” one of
the appellant’s friends (the “initial victim”). When another of the
appellant’s friends attempted to intervene, the instigator
punched him as well. The intervening friend pushed the instigator to the ground and the appellant and his friends left the backyard. As they were making their way to the street, one member of