Soikie v The Queen: Another SCC Appeal over Faulty Jury Instruction?

Glen Soikie has submitted an application to the Supreme Court for leave to appeal his conviction and seven-year sentence for manslaughter. Mr. Soikie was charged with second-degree murder in the killing of Mr. Garcia-Briones, with whom Mr. Soikie had an altercation on the night of October 18th, 2004.


On that evening, the appellant and the deceased allegedly went to a nightclub together, purchased cocaine, and smoked the cocaine in Mr. Soikie’s apartment. A conversation took place that upset Mr. Soikie, and led to him insulting Mr. Garcia-Briones; according to the appellant, Mr. Garcia-Briones threatened and lunged at Mr. Soikie, compelling Mr. Soikie to grab a nearby wrench and hit the deceased in the head. Mr. Soikie claimed that he did not stop hitting Mr. Garcia-Briones until he had stopped moving. Mr. Soikie then cleaned his hands and face of the deceased’s blood, called his mother, and finally called 911.

At his jury trial, Mr. Soikie claimed that his actions were done in self-defence. While the jury rejected this argument, they accepted his secondary argument of provocation, which reduced the murder charge to manslaughter. At the Ontario Court of Appeal (“ONCA”), however, both his appeal of the manslaughter conviction and sentence were denied (see R v Soikie, 2007 ONCA 473).

The ONCA Decision

At the OCA, Mr. Soikie argued that the trial judge’s instructions were erroneous in several ways. Firstly, the appellant contended that the trial judge erred in his jury instructions on the interplay between self-induced intoxication and self defence under s. 34(2) of the Criminal Code, RSC 1985, c C-46. The ONCA disagreed, holding that the instructions cohered with the prevailing case law.

Mr. Soikie’s second argument was also rejected, but the appellate court took more time to consider this issue. Mr. Soikie alleged that the trial judge’s instructions on whether the appellant was unlawfully assaulted under s. 34(2) were in error. While the ONCA recognized that the trial judge could have aided the jury on the definition of assault, the court examined the instructions as a whole, and concluded that they would not have misled the jury into believing that s. 34(2) was unavailable to them. The ONCA noted the trial judge’s statement that if the jury believed the appellant’s story, or if the jury was left with a reasonable doubt, it was to acquit; the appellate court saw this as an implicit accommodation of the appellant’s story that the deceased initiated the altercation, which would meet the first branch of s. 34(2).

Beyond this analysis, the Court also found that the issue of self-defence actually turned on the second and third branches of the impugned section of the Criminal Code. These sections address whether the appellant reasonably believed that the deceased would kill or seriously injure him, and whether in responding as he did, the appellant reasonably believed that he could not otherwise preserve himself from death or serious injury. According to the OCA, more weight was given to these subsequent branches due to defence counsel’s failure to object to the trial judge’s instructions on the first branch of s. 34(2), and the fact that the jury’s questions only related to the second and third branches.

Thirdly, Mr. Soikie argued that the trial judge erred by instructing the jury that it could consider the helpful parts of the appellant’s statements, as well as the balance of the evidence, in deciding whether there was reasonable doubt as to guilt. The judge also instructed the jury that it should not weigh credibility in this fashion, but should acquit if the jury believed the appellant’s evidence or if the jury was left with a reasonable doubt. The ONCA also disagreed with Mr. Soikie on this ground; it held that nothing more was required than the judge’s instructions to consider the appellant’s testimony, along with those parts of his statements that contributed to a belief in, or a reasonable doubt that, the appellant acted in self defence.

Finally, the argument that the trial judge erred in excluding the details of an alleged argument between the deceased and a waitress was dismissed as irrelevant by the ONCA. The appellate court held that the trial judge properly excluded this evidence, as it lacked probative value and merely served to impugn the deceased’s character.

The sentence was similarly found to be reasonable on appellate review, since the appellant’s force was far beyond that which would have been sufficient to subdue the smaller deceased. Given these facts, the imposed sentence was considered to be well within the range of sentences imposed in similar circumstances.


Before the SCC is not only the trial judge’s instructions, but also the ONCA’s assessment of them. It is unlikely that the SCC will have anything substantial to add to the ONCA’s quick and logical dispatch of the appellant’s grounds of appeal. However, if the appeal is granted, it will not only lengthen the list of SCC-reviewed jury instructions, but it will also demonstrate the importance that the SCC places upon properly instructed juries. If such flimsy, semantically-grounded arguments as Mr. Soikie’s are granted leave, it cannot be disputed that the Supreme Court holds jury instruction in extremely high regard.

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