



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cooke, 2017 ONCA 749

DATE: 20170926

DOCKET: C60905, C61409 and C61447

Cronk, Juriansz and Paciocco JJ.A.

BETWEEN

DOCKET: C60905

Her Majesty the Queen

Appellant

and

George Cooke

Respondent

AND BETWEEN

DOCKET: C61409 and C61447

Her Majesty the Queen

Respondent

and

George Cooke and Matthew Cooke

Appellants

Richard Litkowski and Jessica Zita, for the appellant
    George Cooke

Paul Burstein and Karen Symes, for the appellant Matthew
    Cooke

Susan Magotiaux, for the appellant (C60905) and
    respondent (C61409 and C61447)

Heard and released orally: September 25, 2017

On appeal from the convictions entered on March 25, 2015 and
    the sentences imposed on July 24, 2015 by Justice Jane A. Milanetti of the
    Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Following a trial by judge and jury, the appellants were convicted of
    manslaughter.  Their convictions on the offence of break and enter to commit
    robbery were stayed pursuant to
Kienapple v. R.
, [1975] 1 S.C.R. 729. 
    They appeal their manslaughter convictions, on various grounds, and seek leave
    to appeal the sentences imposed.  The Crown also seeks leave to appeal against
    the sentence imposed on the appellant George Cooke.

[2]

It is unnecessary, in our view, to address all the grounds advanced by
    the appellants on their conviction appeals.  We are satisfied, as Crown counsel
    responsibly concedes, that the jury charge in this case on the critical counts
    of manslaughter is insufficient to meet the functional requirements for an
    adequate jury charge as articulated in
R. v. Newton
, 2017 ONCA 496 and
    related cases.  In particular, as Crown counsel acknowledges, the charge fails
    to adequately relate the evidence to the key issues in the case and the
    parties positions on those issues.

[3]

Accordingly, the conviction appeals are allowed and a new trial is
    ordered in respect of all original charges on the joint indictment against the
    appellants.  In the circumstances, the sentence appeals (by the appellants and
    by the Crown) are moot.

E.A.
    Cronk J.A.

R.G.
    Juriansz J.A.

David
    M. Paciocco J.A.


