Reasons for Judgment — McLachlin C.J. (Abella, Moldaver, Côté and Brown JJ. concurring)
The Chief Justice — This is an appeal as of right. We would allow the appeal.
The jury in its final question asked the judge to clarify the distinction between “to kill” and “to murder”. This raised the question of intent in relation to the charges of murder and attempted murder. The judge should have clarified the nature of the concern, and then addressed it. Instead, the judge merely referred the jury to the written instructions he had previously given the jury.
Viewing the record as a whole, we are satisfied that there is a possibility that the jury could have misunderstood what had to be proved for them to return guilty verdicts. We note in this regard the Crown’s concession that the decision tree given to the jury was in error on the issue of provocation.
The evidence is not so overwhelming as to permit us to conclude that the error would have had no effect on the verdicts.
The appeal is allowed, the verdicts are set aside, and a new trial ordered on both charges.