R. v. Olubowale, 2001 CanLII 24056 (ON CA)

DATE: 20010320

DOCKET: C35635

COURT OF APPEAL FOR ONTARIO

CARTHY, LASKIN, ROSENBERG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

AMBIBOLA OLUBOWALE

Applicant/Appellant

Peter Zaduk, for the Appellant

L. Paine, for the Respondent

Heard: March 13, 2001

On appeal from the decision of Justice John Cavarzan dated December 18, 2000.

BY THE COURT:

1This appeal is from an order of Cavarzan J. refusing an order of certiorari against a committal for trial on a charge of murder following a preliminary hearing before Zuraw J.

2The evidence at the preliminary hearing indicated that the victim was one of a group of men asked to leave a tavern in Hamilton. The appellant was on duty as a bouncer and became engaged in an altercation with the victim outside the front door. It is said that racial epithets were directed to the appellant and that he then struck or kicked the victim three times at or about his head. On each occasion the victim fell to the sidewalk, the last time striking his head on the concrete and subsequently dying from his injuries. This last blow was delivered when the appellant was angry and had chased the retreating victim around a car.

3Section 229(a) of the Criminal Code reads:

229. Murder – Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

4At the preliminary hearing, Zuraw J. found no evidence of intent to murder and thus rejected the possibility of a properly instructed jury convicting on the basis of s. 229(a)(i). He also noted that the medical evidence suggested that the blows themselves would be unlikely to cause death.

5However he did find:

In all the circumstances, I find such a jury could find that this accused, a large, well trained pugilist delivering more than one blow to the head area of a man half his size could very well know that either the blows themselves, or what could happen as a result of the blows in this case, a stunned recipient smashing his head on the pavement, would likely cause death and that he was reckless as to whether death ensued. [emphasis added]

And, accordingly, committed the appellant for trial on a charge of murder.

6Cavarzan J. refused an application for certiorari to quash the committal and replace it with one for manslaughter. By way of appeal we are now asked for that order.

7In R. v. Cooper (1993), 1993 CanLII 147 (SCC), 78 C.C.C. (3d) 289 (S.C.C.) pages 294-295 the Supreme Court acknowledged that there was only a slight relaxation of the mens rea requirement between s. 229(a)(i) and s. 229(a)(ii) and that it is not sufficient that an accused foresee a danger of death. He must foresee a likelihood of death from the bodily harm he is inflicting.

8The scope of review is a very narrow one on this appeal. To interfere we must find that Zuraw J. acted without jurisdiction and committed the accused without a scintilla of evidence to support the charge.

9The Crown’s case at its highest came to this: The appellant was a foot higher and almost twice the weight of the victim. He was a trained Olympic boxer. They were on a concrete sidewalk and the first two blows knocked the victim onto the sidewalk. The appellant had all that knowledge and was angry when he struck the third blow or kick to the head. The blows were described by witnesses as “precise”, “powerful”, “full force”, “very strong”. The medical evidence is that the evidence of damage makes it unlikely the blows alone could be the cause of death.

10These facts support a finding that it was at least reckless for the appellant to strike a smaller man on a sidewalk where he will probably fall and might hit his head on the concrete and might die as a result. This evidence, although weak, could also support an inference that the appellant knew his actions were likely to cause death. At this stage in the proceedings, this court cannot weigh the evidence. The inference that the appellant had the requisite knowledge is weak, but it cannot be said that there is not a scintilla of evidence to support it.

11Accordingly, the appeal is dismissed.