On Monday, AGP appeal lawyer and certified criminal law specialist Howard Krongold won a hard fought case before the Court of Appeal for Ontario, saving his client from a first degree murder conviction.
Willy Ching was convicted of the first degree murder of his uncle. Ottawa appeal guru Krongold, spotting a novel argument that the trial judge and trial counsel overlooked, argued that the jury was misdirected. A murder is first degree murder when “it” is planned and deliberate. The issue was whether Ching could be found guilty of first degree murder when the jury found he had planned and deliberated to kill one person but then actually took the life of another person.
For the reasons that follow, I agree with the appellant’s submission. A finding that the appellant had planned and deliberated the murder of Ms. Ching and that Mr. Agsaulio’s murder was committed while carrying out that plan does not satisfy the statutory requirement for first degree murder. As I will explain, the trial judge’s reliance on Droste for the wording of his charge to the jury was misplaced.
No Ontario decisions had directly addressed this issue, but the three Court of Appeal judges agreed with Krongold in a 23 page decision and substituted a conviction for second degree murder.
Criminal appeals are a specialized area of legal practice. Many lawyers are eager to take on appeals, but few have the experience to ensure that your chances of winning are the best they can be.
With respect to the instruction on first degree murder, I have concluded that the instruction was incorrect. Counsel advised the court that in such an eventuality, they had agreed that a verdict of not guilty of first degree murder and a verdict of guilty of second degree murder should be substituted. As a result, I would dismiss the appellant’s conviction appeal under s. 686(1)(b)(i) of the Criminal Code and substitute a conviction for second degree murder in lieu of the conviction for first degree murder pursuant to s. 686(3) of the Criminal Code. I would ask the parties to contact the court office within thirty days to arrange a conference call with me to set a schedule for submissions on the appropriate period of parole ineligibility.
Abergel Goldstein & Partners LLP has a track record of success overturning convictions and obtaining sentence reductions for our clients. Based in Ottawa, our firm is one of the few criminal law firms with significant appellate experience located outside of Toronto. With our help, our clients have successfully appealed convictions for murder, manslaughter, attempted murder, robbery, domestic assault, sexual assault, drug trafficking, and impaired driving, among other offences. We succeed because of our attention to detail, creativity, and relentless work ethic.
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