Appeal Court overturns Sask. man’s attempted murder conviction

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Saskatchewan’s Court of Appeal ruled a man convicted of beating and choking his ex-girlfriend in a garage in Hanley will be retried for attempted murder.

Cory James Smockum’s conviction was overturned due to a “miscarriage of justice” during his 2020 jury trial in Saskatoon, the appeal judges concluded in a written decision released Friday.

In his appeal, heard in May, Smockum argued the Crown’s “improper” cross-examination “had an unfairly prejudicial effect on the jury and rendered the trial unfair, thus necessitating a new trial.”

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“Crown counsel employed sarcasm, expressed a contemptuous attitude toward the accused, expressed personal opinions disguised as questions, inserted argument into their questioning, and utilized language that was intended to inflame the jury,” Smockum’s factum stated.

The appeal judges ruled that while some of Crown prosecutor Carla Dewar’s questioning “tested the limits,” it was overall appropriate for the issues at stake —  demonstrating that Smockum’s actions were an extension of his controlling nature rather than a response to a perceived threat.

It only amounted to a miscarriage of justice when combined with other legal errors made at trial, Justice Georgina Jackson concluded, with Justices Jerome Tholl and Jeffery Kalmakoff agreeing.

The judges ruled that the Crown shouldn’t have been allowed to ask Smockum why he hadn’t told police he acted in self-defence — breaching his right to silence with authorities — or to elicit evidence intended to demonstrate his “bad character.”

The jury was left with inadmissible and prejudicial evidence, lacking adequate instruction from the trial judge about the possibility of self-defence, Jackson concluded.

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Making a finding of fact after the conviction, Saskatoon King’s Bench Justice Grant Currie determined the jury believed Smockum attacked his former girlfriend, who had attended a quad rally with him in Hanley, in a garage after an intoxicated argument on Oct. 13, 2018.

The jury heard Smockum then called her family, told them he was going to kill her, and left with her on a quad, which she later escaped.

In 2022, Smockum was designated a dangerous offender and sentenced to an indeterminate prison term. Currie found he demonstrated a pattern of repetitive and uncontrollable violence toward both women and men that “constitutes a threat to the life, safety or physical or mental well-being of other persons.”

Smockum also appealed his sentence — a moot point since his conviction was overturned.

His ex, then 30, testified that Smockum choked her unconscious three times and told her she was going to die. She spent eight days in hospital with broken ribs, a brain bleed, black eyes and bruising to her neck and throat.

Smockum testified that he punched her twice in the face and grabbed her throat after she hit him on the head and in the ribs with a hammer, which she denied.

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At the appeal hearing, the Crown argued that “(t)here was no evidence in the case to suggest that the appellant believed on reasonable grounds that his own safety and survival depended on killing (her) in the garage.”

The appeal judges determined that Currie didn’t instruct the jury as to when they must acquit someone on self-defence, and failed to include instructions regarding the Crown’s burden to disprove self-defence.

Smockum also argued that the jury should have been given the option of convicting him of aggravated assault instead of attempted murder.

“I do not find that the trial judge erred by not instructing the jury with respect to an included offence of aggravated assault or some other assault-based charge when the jury was charged on attempted murder,” Jackson wrote.

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