The following is the judgment delivered by
1. The Court‑‑This appeal is before us as of right. The appeal is from the conviction of Harlie Marvin Nehring on a charge of second degree murder. He was convicted before Egbert J. of the Court of Queen's Bench of Alberta sitting alone. On appeal, two members of the Alberta Court of Appeal (McClung and Stevenson JJ.A.) dismissed the appeal with Harradence J.A. in dissent: (1984), 30 Alta. L.R. (2d) 289, 51 A.R. 215, [1984] 3 W.W.R. 632.
2. Three points were raised on behalf of the appellant in this Court:
1. That the learned trial judge erred in law in misdirecting himself as to burden of proof and that this misdirection was not a mere slip or harmless deviation from proper direction;
2. That the learned trial judge erred in failing to warn himself regarding the risk in adopting the evidence of the Crown witness Von Wolzogen;
3. That the learned trial judge erred in disregarding and failing to assess evidence which could have affected his verdict.
As the law applicable to the facts of this case is not in dispute, it will suffice to dispose of the appeal in the manner following:
3. Four members of the Court (the Chief Justice and McIntyre, Chouinard and Le Dain JJ.) are in substantial agreement with the majority decision of the Court of Appeal of Alberta and would dismiss the appeal. Three members of the Court (Estey, Lamer and Wilson JJ.) are in substantial agreement with the minority judgment of the Alberta Court of Appeal and would allow the appeal.
4. In the result, the appeal is dismissed.
Appeal dismissed, Estey, Lamer and Wilson JJ. dissenting.
Solicitor for the appellant: Clayton C. Ruby, Toronto.
Solicitor for the respondent: The Attorney General for the Province of Alberta, Calgary.
Cases cited
- 3 W.W.R. 632 3 W.W.R. 632