COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent)
v. VINCENZO CIPOLLONE (Appellant)
BEFORE: ABELLA, ROSENBERG and MacPHERSON JJ.A.
COUNSEL: Timothy E. Breen,
for the appellant
Lucy Cecchetto,
for the respondent
HEARD: January 17, 2000
On appeal from the conviction imposed by Howden J., with a jury,
dated October 16, 1996.
E N D O R S E M E N T
1The appellant submits that the trial judge did not
adequately present the factual background underlying the defence
of provocation. In particular, he submits that the trial judge
did not make it clear that, in considering whether there was an
act or insult and whether the appellant acted all of a sudden,
the jury had to take into account the background of the
matrimonial dispute between the appellant and the deceased’s
daughter.
2The trial judge had fully reviewed the evidence, including
the appellant’s testimony. The jury could have no doubt that the
quarrel witnessed by the deceased was anchored in the matrimonial
dispute. The trial judge told the jury expressly that they had
to consider the position of an ordinary person in the same
situation or circumstances as the appellant. There was no
objection to the charge or the further charge on this basis. We
are satisfied that the jury would have appreciated the factual
circumstances underlying the defence and that there was no
misdirection.
3The appellant also submits that the trial judge erred in
directing the jury with respect to s.34(2) of the Criminal Code
that self-defence under that subsection was unavailable if the
appellant was the aggressor. The central factual dispute in this
case was whether the appellant or the deceased’s wife first
introduced the hammer into the altercation. Realistically, self-
defence was not available if the appellant first introduced the
hammer into the altercation. It was open to the trial judge to
assist the jury by focusing them on the central factual and legal
issues upon which the defence depended. We are satisfied that,
in the circumstances, there was no misdirection.
4Accordingly, the appeal is dismissed.
(signed) "R. S. Abella J.A."
(signed) "M. Rosenberg J.A."
(signed) "J. C. MacPherson J.A."