Her Majesty the Queen v. Srun
[Indexed as: R. v. Srun]
2019 ONCA 453
Court of Appeal for Ontario, Hoy A.C.J.O., Watt J.A., and Then J. (ad hoc)
May 31, 2019
Criminal law — Evidence — Hearsay — Accused seeking to have
exculpatory parts of out-of-court police statement of co-accused
admitted as evidence for accused at trial — Trial judge ruling
that statement was admissible only in relation to co-accused —
Accused’s appeal dismissed — Exculpatory parts of accused’s statement not being admissible under principled exception to hearsay rule
in circumstances of this case — Exculpatory evidence constituting
double hearsay — Evidence not satisfying requirements of either procedural or substantive reliability.
Criminal law — Murder — Mens rea — Accused charged with murder
and attempted murder as principal under s. 21(1)(a) of Criminal Code
— Co-accused charged with manslaughter and aggravated assault as
parties under s. 21(2) — Trial judge initially telling jury that s. 21(2)
applied to “all counts” but later telling jury that his instructions on
s. 21(2) applied only to counts of manslaughter and aggravated assault
— Trial judge’s inadvertent misstatement that s. 21(2) applied to all
counts being harmless as it was clear to jury that accused was charged
as principal — Trial judge not erring in failing to give rolled up instruction to jury despite evidence of intoxication — Criminal Code,
R.S.C. 1985, c. C-46, s. 21.
The accused was charged with murder and attempted murder. It was the
Crown’s position at trial that the accused’s liability was that of a principal under
s. 21(1)(a) of the Criminal Code. Four co-accused were charged with manslaughter
and aggravated assault as parties under s. 21(2) of the Code and were acquitted.
The accused was convicted. He appealed.
Held, the appeal should be dismissed.
In his charge to the jury, the trial judge initially said that s. 21(2) of the Code
applied to “all counts”. Later in his charge, he told the jury that the instructions
on s. 21(2) applied only to the counts of manslaughter and aggravated assault,
with which the accused was not charged. The trial judge accurately reviewed the
mental elements in s. 229(a) of the Code. The jury would have also appreciated
that only the accused was the only one charged with murder and attempted murder and that the Crown’s case was that he alone stabbed the victims. In the circumstances, the trial judge’s inadvertent misstatement that s. 21(2) applied to “all
counts” was a harmless error. The fact that Crown counsel, in describing the elements in s. 229(a)( iii) in his closing address, failed to include the knowledge component — “means to cause him bodily harm that he knows is likely to cause his
death” — was also harmless, as the trial judge accurately described the mental
element in murder under s. 229(a).
The trial judge directed the jury on intoxication, but found that there was no air
of reality to self-defence and did not instruct the jury on the statutory partial
defence of provocation. The trial judge did not err in failing to give a rolled up
charge in his final jury instructions that included references to the evidence of