R v Yakimchuk, 2015 SKCA 110

Restriction on Publication An order has been made in accordance with s. 486.5(2) of the Criminal Code directing that any information identifying the undercover officers shall not be published. Court of Appeal for Saskatchewan Docket: CACR2485 Citation: R v Yakimchuk , 2015 SKCA 110 Date: 2015-10-21 Between: Neil Lee Yakimchuk Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit, and Ryan-Froslie JJ.A. Disposition: Appeal allowed, new trial ordered (orally) Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Ryan-Froslie On Appeal From: J 1/13, Saskatoon Appeal Heard: 21 October 2015 Counsel: Paul McMurray for the Appellant W Dean Sinclair, Q.C. for the Respondent Jackson J.A. (orally) [ 1 ] The police charged Mr. Neil Lee Yakimchuk of Calgary of unlawfully causing the death of Mr. Isho Hana and thereby committing first degree murder, contrary to s. 235 of the Criminal Code , RSC 1985, c C-46. [ 2 ] In her instructions to the jury, the trial judge did not leave them the option of convicting Mr. Yakimchuk of manslaughter.

As to why she did not do so, the trial judge may have been persuaded by submissions made by Crown counsel. Crown counsel’s submissions, however, were based on an erroneous

interpretation of the law relating to the requisite intent for manslaughter. In any event, the trial judge did not accept defence counsel’s request to leave manslaughter with the jury, saying the following: There is no air of reality to include the manslaughter charge by way of a party to the offence by Yakimchuk in -- allege Tingle’s manslaughter. The manslaughter charge or murder charge against Tingle is not in the indictment. The Crown does not allege or lead evidence that Tingle committed manslaughter, so there’s no need for a charge that -- regarding Mr. Yakimchuk as a party to that offence.

And I will not put that offence to the jury. (Trial Transcript, p. T933) In the result, the trial judge left the jury with the possibility of three verdicts only: first degree murder, second degree murder or not guilty. [ 3 ] The jury convicted Mr. Yakimchuk of first degree murder. He appeals his conviction on three grounds, including that the trial judge erred by not leaving manslaughter with the jury.

He argues that the decision in R v Cinous , 2002 SCC 29 at paras 50–54 , [2002] 2 SCR 3 governs this appeal, notably the obligation on a trial judge to leave with the jury any defence that has an “air of reality.” [ 4 ] Based on the evidence adduced at trial, the Crown agrees with counsel for Mr. Yakimchuk that there was some evidence capable of supporting a verdict of guilty on the lesser included offence of manslaughter, thus giving rise to the necessary air of reality for its inclusion as a possible verdict. If the jury accepted Mr. Yakimchuk’s evidence that he asked Mr.

Tingle to hospitalize the victim, but did not intend Mr. Tingle to kill the victim, or if the jury was left with a reasonable doubt by virtue of that evidence, it was open for them to find Mr. Yakimchuk liable as a party to manslaughter. The Crown does not concede that Mr. Yakimchuk was telling the truth, but the Crown does concede that the trial judge’s air of reality assessment had to be conducted on the assumption it was true. It is on this basis that the Crown has consented to a new trial. [ 5 ] Given there must be a new trial, we do not need to address Mr.

Yakimchuk’s other grounds of appeal, nor will we say anything further about the evidence, but simply indicate that on the basis of the evidence presented at the first trial, the trial judge erred by not leaving the jury the option of convicting Mr. Yakimchuk of the included offence of manslaughter.

We agree with Crown counsel that the curative provision contained in s. 686(1)( b )(iii) of the Criminal Code is not available to save the verdict. [ 6 ] The Court acknowledges the professionalism with which counsel have played their respective roles in the handling of this appeal. [ 7 ] The appeal is allowed and a new trial ordered.