R. v. Jack

Sopinka J. ‑‑ We agree with the Chief Justice of Manitoba that in the circumstances the slip in the charge to the jury amounted to a serious misdirection. We are satisfied with the requisite degree of certainty that, absent the error, the verdict would not inevitably have been the same.

With respect to the failure of the respondent to make timely disclosure, in R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 348, we stated: ". . . when a court of appeal is called upon to review a failure to disclose, it must consider whether such failure impaired the right to make full answer and defence". In our opinion, full disclosure had been made before the second trial. No application for a stay was made to the trial court on the second trial. The Court of Appeal therefore had no jurisdiction to order a stay on this ground and we are in the same position. This is a matter that should be dealt with at trial and, if the failure to disclose impaired the appellant's ability to make full answer and defence, this matter can be raised in the new trial ordered by the Court of Appeal.

We agree with the Court of Appeal that ordering a new trial in the circumstances of this case is not one of those "clearest of cases" which would amount to an abuse of process.

The appeal is dismissed.