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And if that was a close shave, maybe no one wants to talk about the poor handling of the sentencing phase of Bain’s trial, either. It was a surprise to everyone in the courtroom when the jury returned its second-degree murder verdict. Psychiatrists who had examined Bain disagreed (can you believe it?) on whether Bain was in a criminally responsible frame of mind at the time of the shooting. Since there was plenty of evidence of planning and premeditation, the jury seemed to face a fairly clear choice between first-degree murder and finding Bain not responsible. But juries sometimes succumb to internal bargaining and illogical difference-splitting, and when it comes to settling guilt, they are the ultimate authority.

Photo by Ryan Remiorz/CP

Justice Guy Cournoyer, caught off guard, messed up. When a jury declares the accused guilty of second-degree murder, the Criminal Code requires the judge to ask it for recommendations on parole eligibility. He does not have to accept the recommendations, if there are any, but he is supposed to ask. The Code (in s. 745.2) even sets out the specific language he must use in asking. This step was skipped in the Bain trial, which was one of the reasons Bain’s lawyers appealed, and the jury was released before the error could be repaired.

The Court of Appeal panel agreed that this was a bad mistake. Since the judge is as much the final decision-maker in sentencing as the jury is in the guilt phase, the panel decided unanimously that a retrial was not warranted. But this consensus concealed a subtle technical split. The majority of the panel, three of the judges, refused to review the sentence at all. Two others did feel that the s. 745.2 error was serious enough to allow for a review of the sentence, and went ahead.