COURT OF APPEAL FOR ONTARIO

DATE: 20000121

DOCKET: C27046

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

[1] The 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.

[2] The 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.

[3] The 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.

[4] Accordingly, the appeal is dismissed.

(signed) "R. S. Abella J.A."

(signed) "M. Rosenberg J.A."

(signed) "J. C. MacPherson J.A."