LB was killed in his own home by a single gunshot to the chest. Van Every was convicted of second degree murder in the death of his friend who was also the second in command of his drug dealing business.

The Crown’s theory was that Van Every murdered his friend because LB had disrespected him earlier that evening. The Crown argued that it was a planned and deliberate murder. The defence on the other hand argued that JG, another friend and drug dealer who was also present in the home on the night of the murder was the real killer but that if Van Every was the shooter, well he was too drunk to form the requisite intent.

Over the course of his charge to the jury Whitten J misstated the requisite intent for murder. Several times throughout the charge the trial judge stated that to find that Van Every had the intent for murder the jury would have to be satisfied that: Van Every intended to kill LB or to cause bodily harm that he knew was likely to cause death OR was reckless whether or not LB would die.

The correct wording for the intent for murder is as follows; Van Every intended to kill LB or cause bodily harm that he knew was likely to cause death AND was reckless whether or not LB would die.

Van Every appealed his conviction and sentence: 2016 ONCA 87. One of the grounds of appeal was the trial judge’s misstatement of the requisite intent for murder.

van Rensberg writing for a unanimous Court dismissed the appeal. As a starting point the Court noted that something more than a legal error is required before there is appellate intervention. The test is “was there a substantial wrong or miscarriage of justice caused by this error, on this evidence at trial.” [citing Watt JA in R v Moo, 2009 ONCA 645 at para 68]

The Court concluded that when the instructions were considered as whole and given the positions taken by the Crown and the defence “it is inconceivable that the jury would have understood the instruction the way the Appellant now contends – that they could find the appellant guilty of murder if he had recklessly caused LB’s death, and that they would have found him guilty of second degree murder on that basis.” [at para 52]

van Rensberg offered four reasons for this conclusion.

First, the incorrect words must be read in context of the instructions on intent as a whole. In every instance that the judge described the intent for murder he correctly framed the intent as having two alternatives: the intent to kill or the intent to cause bodily harm likely to kill. In fact on several occasions the trial judge referred to each of these alternatives by a shorthand “intent to kill or intent to cause bodily harm. This, the Court of Appeal held “is inconsistent with a third and freestanding intent for murder, that of “recklessness”, which the trial judge did not further explain.” [at para 53]

Second, no one noticed the mistakes at trial, even though it was made repeatedly. The Court of Appeal noted this in the context of concluding that the mistake was immaterial. [at para 54]. In fact counsel had draft copies of the charge which contained the erroneous wording. “There was no objection to that part of the charge at any time during the trial: not in the pre-charge conference, not when the trial judge reviewed the draft decision tree with counsel and repeated the erroneous wording three times, not when the trial judge solicited comments from counsel during one of several breaks in reading his charge, and not after the charge was given.” [at para 56]

Third, both the closing addresses and the balance of the jury charge clearly indicate that recklessness as an independent route to establishing the mens rea for murder was simply not in play. [at para 57]

van Rensberg concluded the analysis by looking at the parole ineligibility recommendations of the jurors as a gauge for their views on the level of intent. The Court noted that:

although one can never know precisely how the jury arrived at its verdict in the present case, its recommendations on parole ineligibility shed some light on how they viewed the case. Five jurors recommended 25 years before Van Every was eligible for parole. Two recommended 20 years. Three recommended between 15 and 18 years. Two abstained. As the trial judge noted at the sentencing hearing: “Now obviously from that statistic, the jury, the members of this community were of the view that this was a serious second degree murder and it would indicate seriousness which became closely akin to that associated with first degree murder”. This belies appellate counsel’s suggestion that the jury “may well have” convicted Van Every based on mere recklessness. [at para 67]

Being nitpicky about grammar isn’t going to overturn a murder conviction… unless maybe you were nitpicky the first time around too.