S.C.C. No. 02435 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Jones, Hallett and Chipman, JJ.A. BETWEEN: PAUL WINSTON BOUDREAU and HER MAJESTY THE QUEEN Respondent William Brian Smith and Kevin Drolet for the Appellant Dana Giovannetti for the Respondent Appeal Heard: November 20, 1991 Judgment Delivered: November 20, 1991 THE COURT: Appeal allowed, verdict set aside and new trial ordered on the indictment, per oral reasons for judgment of Hallett, J.A.; Jones and Chipman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: HALLETT, LA.: This is an appeal from a conviction of first degree murder. We agree with counsel that the trial judge\'s instruction to the jury contained several serious errors; the most serious being the instruction as to the requisite intent for murder. The trial judge failed to instruct the jury that nothing short of the accused\'s subjective foresight of death can found a conviction for murder (R. v. Martineau (1990), 1990 CanLII 80 (SCC), 58 C.C.C. (3d) 353). Furthermore, the instruction given could have left the jury with the impression that the appellant could be convicted of murder if it was proven beyond reasonable doubt that he attacked Smith and was merely careless whether he killed him or not. Secondly, on the evidence adduced at trial, the jury should not have been instructed that they could return a verdict of first degree murder by the application of s. 231(5) of the Criminal Code (see R. v. Pare (1988), 1987 CanLII 1 (SCC), 38 C.C.C. (3d) 97 at n. 108). In addition to the errors already mentioned, the instructions on the defence of drunkenness were not adequate and there were errors in the jury selection process. Because of these errors the verdict cannot stand. The appeal is allowed, the verdict is set aside and a new trial is ordered on the indictment. J.A. Concurred in: Jones, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1991 C. R. 11161 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION HER MAJESTY THE QUEEN versus PAUL WINSTON BOUDREAU HEARD BEFORE: The Honourable Justice Robert MacDonald PLACE HEARD: Halifax, Nova Scotia DATES HEARD: January 10, 11, 14, 15, 16, 17, 1991 COUNSEL: D. Martin, Esq., for the Prosecution W. Brian Smith, Esq., for the Defence CASE ON APPEAL VOLUME S.C.C. No. 02435 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: PAUL WINSTON BOUDREAU and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A. (orally)
This was an appeal from a first degree murder conviction. Allowing the appeal and ordering a new trial, that the trial judge erred in (1) failing to instruct the jury that nothing short of the accused's subjective foresight of death could found a conviction; (2) instructing the jury they could return a first degree murder conviction on the basis of s.231(5) of the Criminal Code; and (3) failing to give adequate instructions on the defence of drunkenness. The court also found errors in the jury selection process.