DATE: 20030908
DOCKET: C36947
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) - and - ABIMBOLA OLUBOWALE (Applicant/Appellant)
BEFORE:
CARTHY, DOHERTY, and SHARPE JJ.A.
COUNSEL:
Christopher Hicks for the appellant
Gillian Roberts for the respondent
HEARD & ENDORSED:
September 03, 2003
On appeal from the conviction imposed by Justice Paul G. Philp of the Superior Court of Justice dated April 10, 2001.
APPEAL BOOK ENDORSEMENT
1Where, as in this case, the defence of self-defence rested on an apprehended assault, the trial judge's direction that the jury should consider the reasonableness of the appellant's belief in the context of deciding whether there was an unlawful assault was appropriate.
2We see no error in the instruction on s. 34(2) of the Criminal Code.
3We also see no error in the failure to instruct on s. 37. Trial counsel did not request the instruction. The only possible way that s. 37 may have been engaged was if the appellant provoked the assault, thereby removing himself from s. 34(1). The trial judge all but took that possibility away from the jury in his instruction. In all other aspects, s. 37 presented a much higher hurdle to the appellant than did s. 34(1).
4The Crown relied on the evidence of the appellant's conduct immediately after the assault and his statement to the police to challenge the credibility of the appellant's evidence that he acted in self-defence. The trial judge dealt with this evidence in the same way in his instructions. We see no error.
5The trial judge admitted evidence of the deceased's peaceful disposition. We see no error in his ruling. The defence "opened the door" to the evidence in its cross-examination and in any event, the evidence was relatively innocuous.
6Appeal dismissed.
"D. Doherty. J.A."