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Criminal law - Trial - Charge to jury - Attempted murder - Appeals - Curative proviso - Whether the curative proviso contained in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C 46, should be applied in this case.

The victim in this case died a month after he was shot and seriously wounded outside an Ottawa nightclub. The respondents were convicted of second degree murder and were sentenced to life imprisonment without eligibility for parole for 18 years. The respondents appealed their convictions and the Court of Appeal ordered a new trial. The respondents were once again convicted of second degree murder and were sentenced to life imprisonment without eligibility for parole for 18 years. On appeal for the second time, the respondents raised two issues. First, they claimed that while evidence that they and the victim were members of rival street gangs was admissible, the trial judge erred in admitting extensive evidence about the manner in which those gangs operated, their criminal activities, and the culture of violence that permeated both gangs. They also challenged the adequacy of the trial judge’s limiting instructions with respect to that evidence. Second, the respondents submitted that the trial judge failed to instruct the jury that it could find the respondents guilty of attempted murder if it had a reasonable doubt as to the cause of the victim’s death. The respondents alleged that the trial judge’s instruction to the jury that it must acquit if it had a reasonable doubt on the issue of causation was wrong in law and prejudicial to them. The Court of Appeal unanimously agreed that the trial judge erred in law in failing to leave a conviction for attempted murder as a possible verdict. The majority of the Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial. Moldaver J.A., dissenting, would have applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code and dismissed the appeal on the basis that the error resulted in no substantial wrong or miscarriage of justice.