Live from the SCC: Steven Michael Neville v The Queen

The Supreme Court of Canada (“SCC”) has handed down a decision on Steven Michael Neville v The Queen, a criminal right of appeal case that centred around the jury’s question of whether “to kill” was the same as “to murder.” The trial judge’s instructions left the answer to this question unclear, leading to concerns that the verdict was unsound. As such, the SCC, after their live hearing this Thursday, set aside the verdict and ordered a new trial.

Mr. Neville, the accused, was charged with the second-degree murder of Doug Flynn and the attempted murder of Ryan Dwyer. The three men had been acquaintances in their late teens and early twenties, but there had been increasing animosity between Mr. Neville and the other two men, made worse because of ongoing conflicts relating to their involvement in selling drugs. This animosity included escalating threats and intermittent physical altercations, eventually resulting in Mr. Neville fatally stabbing Mr. Flynn and severely injuring Mr. Dwyer in a street fight between the three men.

The long history of animosity between the men and the mutual exchange of threats and violence led the trial judge—Thompson J—to instruct the jury on the defences of self-defence and the defence of provocation. Thompson J gave the jury a decision tree on first-degree murder, and written instructions on the elements of first-degree murder, attempted murder, aggravated assault, self-defense, and provocation, but did not give them written instructions on second-degree murder or manslaughter, though he did explain them orally.

This appeal revolves around one of the questions posed by the jury on the first day of deliberations. They asked: “We realize that this may be a ridiculous question…We would like to clarify that the legal definition of ‘to kill’ is the same as ‘to murder’ thank you” (Appellant’s Factum, para 1).

There seemed to be some confusion among Thompson J, the crown counsel, and defence counsel about what exactly this question meant. Thompson J thought that the jury’s question had been “precise” (para 64) and went on to say that there was “a potential for difficulty and confusion if we enter into my trying to explain the difference, if any, between kill and murder…in a vacuum” (para 64). Thompson J, along with counsel, concluded that the best response would be to refer the jury back to Thompson J’s previous instructions. Specifically, he said: “What I have to say to you is that the instructions that you have that I have given you should be sufficient to address the question that you raise. …. Don’t feel that, that, that you’re being precluded from asking questions. I don’t want you to, I don’t want you to take it that way at all. You still have that, you still have that prerogative” (para 65).

Mr. Neville was found guilty of the second-degree murder of Mr. Flynn and attempted murder of Mr. Dwyer.

Derek Hogan—Counsel for Mr. Neville—argued, before five of the Supremes on Thursday morning, that the trial judge’s instructions were insufficient. He had no objections to how Thompson J handled the defence of provocation but thought that the judge should have clearly explained that “to murder” requires proof of intent to murder while “to kill” does not. Moldaver J quickly stopped Hogan, asking why Hogan did not have an objection to how the trial judge handled the defence of provocation. It soon became apparent that Moldaver J very much did. Moldaver J found the decision tree provided by the trial judge “troublesome” in that it caused confusion in knowing when provocation should apply (it should be raised before proof of first-degree murder, not after, because it presupposes that intent).

Hogan admitted that he had not thought of this argument, but quickly added that it bolstered his main submission: that the trial judge’s answer to refer to his previous instructions did not “constitute a comprehensive and correct response to the jury when it asks a question” and likely did nothing to dispel any confusion.

It was when counsel for the respondent, Lloyd Strickland, took the stand that the judges became much more animated.

Strickland’s main submission was that, by looking at the context of the trial, one could see that the jury did understand the components of murder but simply wanted to know the legal meaning of “to kill.” He used examples of the jury’s previous questions to highlight this understanding.

At this, many of the judges immediately jumped in. Cote J claimed that “everybody seemed to be confused about what the jury was looking for.”

McLachlin CJ wanted to know how the court could rely on the fact that the jury may have previously indicated they understood the components of the crime. She noted that a jury is made up of 12 people, and the questions may be formulated by some but not all of them. Can the court be satisfied that these are safe verdicts, especially if a question raises the inference that the jury didn’t understand?

McLachlin CJ went on to say: “Your friend [Counsel for Mr. Neville] would say: the real fault is nobody asked, nobody sought clarification, and therefore we cannot be certain the jury had whatever confusion they had allayed, and in those circumstances your friend says the verdict is unsafe and we should have a new trial.”

Strickland stood steadfast and affirmed his main point that the trial judge did not make any errors and that there was nothing to clarify.

Brown J interrupted to say, “The fact that we all read different things into this question is indicative of a problem.” If five SCC judges think the jury’s question means a different thing, how could the trial judge be sure he had understood it correctly?

Strickland concluded that this court has not stringently demanded perfection in instructions. He stated, “the trial judge had a legitimate concern about not introducing any new instructions into the deliberations and that is a legitimate concern late into a lengthy trial…I respectfully ask that the trial judge be granted some degree of deference.”

It was clear by this point, though, that the court had made up its five minds. It was clear that Moldaver J himself had problems with the direction tree given to the jury. It was clear that Brown J thought the fact that his four colleagues couldn’t agree on what the jury was asking was the answer to the question of whether the instructions were sufficient. And it was clear that McLachlin CJ was concerned about how a jury’s past understanding of a crime’s components could reflect current and ongoing understanding.

And so it was. After a fifteen minute deliberation, the court came back with a final decision: to set aside the verdict and order a new trial.