A recent Supreme Court of Canada decision, in the case of R. v. Miljevic, considers the question of whether or not a judge is required to provide specific examples of a crime, when the jury asks for them. This case is particularly interesting because the court was split. The majority judgment was written by Justice Cromwell, with Justices Abella, Charron and Rothstein concurring, while Fish wrote dissenting reasons in which Chief Justice McLachlin and Justice Deschamps concurred. A 3-4 split among judges can evolve and be applied in such a manner as to make the minority decision the majority, over time.
The facts of the case involve a man who is accused of second-degree murder, after he threw a heavy object into a crowd, causing someone’s death. At trial, he admitted he unlawfully killed someone, but contended that he was guilty of manslaughter, rather than second-degree murder. He was convicted, which conviction was upheld on appeal, and the case came to the Supreme Court of Canada.
During their deliberations, the jury asked the judge a series of questions pertaining to the issue of the distinction between manslaughter and second-degree murder. They asked the judge to explain the difference in layman’s terms, provide an example of each, and a specific definition of manslaughter. He responded to the first and last questions by saying that although there is no specific definition of manslaughter, if the accused did not have the required mental state for murder then he should be found guilty of manslaughter. He declined to provide an example of either because he worried it may not make the jury’s task easier.
The accused was convicted of second-degree murder, and appealed his conviction all the way to the Supreme Court of Canada. He argued that the failure to provide an example was an error in law which necessitated a new trial. Justice Cromwell, writing for the narrow majority, held that there was no way the jury could have been confused as to the distinction between second-degree murder and manslaughter after the trial judge’s response. The failure to provide examples did not constitute an error in law.
The minority, in substantially longer written reasons than the majority provided, disagreed entirely with the decision of the majority. Fish, who wrote the dissent, suggested that where a jury indicates a need for a distinction between two offences, the jury should be instructed on the essential elements of each offence, not just one. He referred to the trial judge’s response as “plainly inadequate” and suggested that the failure to provide a full answer to each of the questions was an error in law necessitating a new trial.
It will be very interesting to see how the law develops from this point. The dissent in this case is strong, it was joined by the Chief Justice, and it sets out precedent for a number of the propositions it raises. There may be opportunity for the dissent to become law, especially if one of the dissenting judges becomes Chief Justice, or if McLachlin, C.J. hears a similar case. However, she has failed to apply her dissents in the past. I suppose we will just have to wait and see.