Defence counsel are often faced with difficult tactical decisions to make at the end of a murder case. One of those difficult decisions is how to deal with alternative defences without undercutting the main defence theory. For example, the accused’s main defence may be that she didn’t commit the murder. But the evidence led at trial might suggest that whoever was responsible for the killing may not have had the requisite intent for murder. The offence of manslaughter is a possibility on the evidence. What is defence counsel to do?
First, it is important to note that in a murder case, a trial judge is obliged to instruct the jury on the possibility of a conviction on the included offence of manslaughter if on all of the evidence there is an air of reality to a finding that the Crown had not proved beyond a reasonable doubt that the killer had either of the requisite intents required for murder. If an air of reality exists, the trial judge will provide instructions on manslaughter, whether defence counsel likes it or not. Second, this principle applies even in scenarios where the Crown is alleging at trial that manslaughter is not available and it is either murder or nothing. Third, the trial judge has a duty to review the evidence in support of that alternate position even if it is not raised by defence or Crown counsel in their closing addresses.
Defence counsel cannot prevent an alternative defence from being left with a jury if there is an air of reality to it. Counsel does, however, have the right to ensure any instruction that is provided does not undercut the main defence theory. In this way, counsel can maintain an “all or nothing” approach and yet still benefit from the jury having alternative defences before it.