COURT OF APPEAL FOR ONTARIO
DATE: 20000124
DOCKET: C26551
CARTHY, CHARRON and SHARPE JJ.A.
B E T W E E N : )
) Marie Henein and
HER MAJESTY THE QUEEN ) John McInnes,
) for the appellant
Respondent )
)
- and - ) Gary T. Trotter,
) for the respondent
DENNIS JAMES EDGAR )
)
Appellant )
)
Heard: December 13 and 14,
1999
On appeal from his conviction by Mr. Justice Anthony E. Cusinato,
sitting with a jury, on February 21, 1996 and from the sentence
imposed on March 1, 1996
CHARRON J.A.:
[1] The appellant was tried before Cusinato J. and a jury on a
charge of second degree murder in relation to the death of Tracey
Kelsh. The jury found him guilty as charged and recommended that
the period of parole ineligibility be increased from ten to
twenty-five years. The trial judge agreed with the jury‘s
recommendation and sentenced the appellant to life imprisonment
with no eligibility for parole for twenty-five years. The
appellant appeals his conviction and seeks leave to appeal his
sentence.
[2] The appeal against conviction raises two issues about the
admissibility of prior statements made by the appellant that the
defence sought to introduce at trial and several further issues
about the sufficiency and correctness of the trial judge’s
instructions to the jury on the various defences advanced at
trial.
[3] The appellant submits that the trial judge erred in
excluding evidence of statements made by him to the police both
shortly after his arrest and a few hours later. He argues that
the utterances made shortly after his arrest were relevant to,
and admissible in support of, the psychiatric evidence called by
the defence at trial. He argues further that evidence of the
prior consistent statement made to the police a few hours later
was admissible to rebut Crown counsel’s allegation of recent
fabrication both during the course of counsel’s cross-examination
of the appellant and in his jury address.
[4] The appellant further submits that the trial judge’s
instructions to the jury were both incomplete and incorrect. He
argues that the trial judge erred in failing to charge the jury
on the defence of provocation and on the absence of motive and
that he misdirected the jury on self-defence and intoxication.
[5] In my view, the appeal against conviction must succeed on
two grounds. First, the trial judge erred in excluding the
evidence of the utterances made by the appellant shortly after
his arrest. I agree with the appellant’s position that this
evidence was relevant to and admissible in support of the
psychiatric expert opinion proffered at trial. Second, the trial
judge erred in refusing to charge the jury on the defence of
provocation. Contrary to his ruling, the record demonstrates that
there was evidence in support of the defence of provocation and
that it formed an important part of the defence theory at trial.
[6] I will deal with these two grounds in more detail and will
also comment briefly on the other grounds of appeal against
conviction. In view of this result, however, it will not be
necessary to deal with the sentence appeal and I do not propose
to give any opinion on the issue of parole eligibility.
1. Overview of the Evidence at Trial
[7] The appellant and the deceased, Tracey Kelsh, had recently
begun a relationship and were planning to move in together. There
was no evidence of acrimony between them. On October 8, 1994,
they spent the evening at the deceased’s apartment in the company
of some friends, drinking alcohol and taking cocaine. One of the
guests testified that the appellant and Ms. Kelsh were
affectionate with each other during the course of the evening and
that they were “very quiet, very mellow”. The party broke up
sometime after 3:00 a.m. and the appellant was left alone with
Ms. Kelsh in the apartment.
[8] The appellant testified that, after the departure of the
guests, he and Ms. Kelsh continued to be physically intimate for
a long period of time. Periodically, they snorted more cocaine.
At one point, immediately after Ms. Kelsh snorted a line of
cocaine, she got up and went to the kitchen. When she failed to
return, the appellant called out to her and, when she failed to
respond, he went to the kitchen to find her. As he approached the
kitchen door, Ms. Kelsh suddenly ran out of the kitchen toward
him, holding a knife in each hand, yelling that it was all his
fault, swinging the knives at him and threatening to kill him.
Ms. Kelsh also said something about bikers and words to the
effect that “I can get paid for this.” The appellant testified
that he had no idea what Ms. Kelsh was talking about. He
instinctively backed up and then tried to get the knives away
from Ms. Kelsh. They both ended up in the unlit bathroom with the
door closed.
[9] The appellant further testified about a lengthy and very
violent struggle in the bathroom. Ms. Kelsh continued to say
things that made no sense and to fight with him. The appellant
repeatedly told her to “shut up” and continued in his attempts to
disarm her. At one point, he bit her right arm in an attempt to
get her to release the knife. At another point, he grabbed the
knife’s blade and cut his hand. He was finally successful in
getting one of the knives. The struggle continued for some time.
During the course of the struggle Ms. Kelsh was further bitten
and stabbed a number of times.
[10] The fight was overheard by neighbours who called the police.
Two police officers arrived at about 7:40 a.m. and entered the
apartment. The appellant and Ms. Kelsh were still in the bathroom
with the door closed. The police stood outside the bathroom door
and heard scuffling sounds and grunts from inside. The door to
the bathroom did not open when they turned the handle. They
called for assistance. The police officers testified that they
heard the appellant say “I’m going to stab you. I’m going to kill
you” and the word “don’t” twice repeated. They repeatedly kicked
the door in an attempt to open it and yelled “open the door,
police”. The door was opened a few inches and the police sprayed
pepper spray into the bathroom. The door was slammed shut again
and the police heard the appellant say “I’m going to kill her.
I’m going to cut her throat.” Two other police officers arrived
and they too kicked the door. A scream was heard from the
bathroom. Finally the door was forced open, the police entered
and turned on the bathroom light.
[11] The appellant was lying on his back. Ms. Kelsh was lying on
top of him with her back on top of his stomach. The police
delivered several blows to the appellant, handcuffed him with his
arms behind his back and took him out of the bathroom. One of the
police officers recognized the appellant and called him by name.
At that point, the appellant became enraged and began screaming
inaudible things and moving on the floor. The police administered
numerous “hammer” blows to the appellant and he was again
subdued.
[12] The police officers determined that Ms. Kelsh was dead. It
was apparent that she had been stabbed, beaten and bitten. Her
throat had been slashed, severing her jugular vein. A triangular
shard of glass was imbedded in her right eye. The police
therefore arrested the appellant for murder. At that point, the
appellant resumed his struggle. He was further struck by the
police several times in order to subdue him, his feet were
eventually cuffed and he was finally carried out of the apartment
by four police officers.
[13] The police found nothing unusual about the apartment except
for the state of the bathroom. The mirror from the medicine
cabinet was broken and pieces of glass were scattered about the
floor. The vanity counter-top was demolished. The sink had been
ripped off the wall and the pipes were bent. The doors of the
medicine cabinet were off. Water was streaming out of the pipes
and the bathtub taps were turned on full. A steak knife blade
without a handle and another knife with a portion of the handle
were located in the bathroom. Both blades had bent tips, and one
had a broken tip.
[14] The appellant arrived at the police station at approximately
8:00 a.m., some six minutes after leaving the apartment. At that
time, he made certain statements to the police. These statements
were not introduced in evidence by the Crown. Counsel for the
appellant at trial, conceding that some of these statements were
self-serving and inadmissible as part of the defence, sought to
introduce in evidence only those statements that appeared
irrational or delusional to establish the foundation of the
expert opinion evidence of one of its witnesses. I have
underlined the statements sought to be introduced and reproduced
them in their context as follows.
[15] Upon arriving at the station, the appellant said “she had
the knife. The bikers are going to kill me. I’m telling you.”
Shortly after, the appellant started yelling “the bikers are
going to kill me. She had the knife. She was trying to kill me.”
He also yelled “she kissed me and tried to kill me. I took the
knife out of her hands. I got one of the knives out of her hands.
She was trying to kill me. Why would she try to kill me? She had
two knives.” At 8:17 a.m. the appellant further stated:
“I will testify they are going to kill me. She tried to kill
me. I’m done. I’m done. The police are going to cut my dick off.
They’re the ones who are going to kill me. The bikers want to
kill me. You get the knife. You will have her prints all over it.
I’m telling you right now I could tell you guys so fucking much.
I’ll tell you everything. They are killing me. They are stabbing
me. The police will tell you everything. Why would they do this
to me? Because they are bikers. They are trying to kill me I’ll
tell you something, I could tell you everything. Why would they
want to kill me because they’re bikers. The police are killing
me. They’re stabbing me. They are killing me. They are –they were
the bikers. I’ll tell you everything. The police are stabbing me.
They’re killing me.
[16] Later that morning, while at the hospital, the appellant
made a further statement to the two investigating officers,
briefly stating his version of the events of the night. The
defence also sought to introduce this statement in evidence. It
is not necessary for our purposes to reproduce the whole
statement. It is sufficient to note that, in contrast to the
earlier utterances, the statement appeared to be coherent and was
generally consistent with the appellant’s testimony at trial,
except that at trial the appellant testified that he stabbed the
deceased just once. The description of the main events contained
in the statement reads as follows:
Before you know she pulled out two knives and got me in the
hand. Somehow we ended up in the bathroom. I smashed the mirror.
She dropped the knife. I grabbed it. I started sticking her with
the knife everywhere. The lights were out. Why are you doing it?
I got paid to do it. It doesn’t make sense to me. Someone was
outside the door. They said “who is it?” I thought they were out
to fuck her. She had one knife. I had the other. She wouldn’t
stop. She kept up picking up pieces of glass. She wouldn’t stop.
I can’t believe it.
[17] A post-mortem examination of the deceased revealed the
following injuries: multiple cuts to the face consistent with
cuts caused by broken glass; glass imbedded in the eye; split
lip; small cuts to the side of the neck and back of the head;
scratches to the neck that appeared to be caused by a necklace
deeply embedding the skin; a very deep cut to the left side of
the neck cutting through the jugular vein, nicking the carotid
artery and causing her death; several stab wounds in her mid-
section that did not cause her death; defensive wounds on the
hands and forearm; two bite marks on her arm; and, several
bruises over various parts of her body.
[18] The appellant also suffered several injuries. Most notably,
there were deep cuts to his hands that required re-constructive
surgery. The evidence supported two different explanations for
these wounds. They could have been caused by the appellant acting
offensively, by stabbing with a knife with a broken handle or
while holding the blade of a knife. Alternatively, they could
have been caused by the appellant acting defensively, by warding
off a knife attack with his hands and arms or trying to grab a
knife from someone.
2. Admissibility of the Appellant’s Prior Statements
a) Statements made shortly after the arrest
[19] Counsel for the appellant at trial argued that the
utterances made by the appellant shortly after his arrest about
bikers and the police trying to kill him were relevant to his
state of mind and were properly admissible to establish the
foundation of the expert opinion evidence he intended to elicit
from Dr. Ronald Kolito. Counsel did not seek to introduce the
other statements made at the time, conceding that they were self-
serving and inadmissible. Dr. Kolito is a psychologist with
particular expertise on how substance abuse, in particular
cocaine intoxication, can affect a person’s capacity to form a
criminal intent.
[20] Counsel for the appellant at trial also argued that the
utterances in question were relevant with respect to the expert
opinion evidence of Dr. Colin Buckman. Dr. Buckman is a
psychiatrist with particular expertise on the psychiatric effects
of cocaine ingestion. He had testified earlier in the trial for
the defence and had described a condition known as cocaine
psychosis that occurs in some individuals following the ingestion
of cocaine. He testified that cocaine psychosis produces a
behavioural state known as agitated delirium that involves
hallucinations, intense paranoia, “word salad” –meaning that the
words used by the subject do not seem to make sense, an
inclination toward violence, and periods of extreme strength. A
hypothetical case based on the actions and circumstances of the
deceased was put to Dr. Buckman. In response, he gave the opinion
that it would be “probable” that a person like the deceased was
experiencing a cocaine psychosis. Although Dr. Buckman was not
questioned on the condition of the appellant, counsel argued
before the trial judge that, because the above-noted statements
of the appellant appeared to make no sense, the evidence was also
relevant as a foundation to this expert opinion as it may apply
to the appellant.
[21] Crown counsel at trial objected to the introduction of these
utterances on the ground that they were not relevant to the
appellant’s state of mind. It was argued that the statements were
simply a self-serving explanation for what happened, given some
six to ten minutes after the appellant was removed from the
scene.
[22] The trial judge ruled that the statements were inadmissible
because they were not made at a sufficiently proximate time to be
relevant to the appellant’s state of mind at the time of the
offence. He was also concerned that, in excising certain parts of
the statements, the jury could misconstrue the statements.
[23] With respect, it is my view that the trial judge failed to
appreciate the relevance of the proposed evidence. In the
circumstances of this case, where intent was in issue and
intoxication was raised as a defence, utterances made by the
appellant that could support an inference that he was irrational
or delusional shortly after the commission of the offence were
highly relevant.
[24] The trial judge placed too much emphasis on the fact that
some time had passed between the time of the arrest and the
making of the utterances. The defence was not seeking to admit
the utterances as spontaneous declarations. The probative value
of the utterances did not lie in the fact that they were made
contemporaneously with the event in circumstances where the
appellant would have had no opportunity to reflect upon what was
best for him to say. Clearly they were not. The probative value
lay in the fact that the utterances appeared to be irrational or
delusional, and hence potentially supportive of the defence being
advanced. The passage of time, or, for that matter, the fact that
there may have been a rational explanation for the statements,
were simply matters going to the weight of the evidence, not its
admissibility.
[25] It is also my view that the further concern expressed by the
trial judge that the jury could misconstrue the statements if
they were excised from other statements made at the same time did
not justify their exclusion. It would have been open to the Crown
in cross-examination of the witnesses called to give this
evidence to elicit such part of the context as deemed necessary
for the jury to properly interpret the evidence.
[26] The significance of this evidence in the context of this
trial can further be assessed by considering the evidence of Dr.
Kolito. Following the trial judge’s ruling, Dr. Kolito testified
and gave extensive evidence on cocaine psychosis and cocaine
intoxication. In his opinion, a person in a state of cocaine
psychosis would not be able to form the required intent for
murder and a person in a state of cocaine intoxication might or
might not have this capacity depending on the level of
intoxication. He described some objective criteria that can
assist in making the determination whether or not an intoxicated
person would have the required capacity. These included
hallucinations, delusions, agitation, paranoia, disorganized or
irrational behaviour, and confusion.
[27] A lengthy hypothetical situation was put to Dr. Kolito with
respect to the appellant’s condition and behaviour at the time of
the offence, excluding any reference to the utterances made
following his arrest. Dr. Kolito expressed the opinion that the
appellant’s behaviour, as described by counsel, was consistent
with both cocaine intoxication and cocaine psychosis.
[28] At a further point in the examination-in-chief, defence
counsel asked Dr. Kolito a series of questions on whether it
would assist, in giving his opinion, to know if this hypothetical
person made irrational statements at the time about unrelated
persons or organizations trying to kill him. Dr. Kolito testified
that evidence of such statements would make it more likely that
the person was in a cocaine psychotic state. It is noteworthy
that counsel prefaced this series of questions by the remark
“obviously, other things that we haven’t been able to present to
you…” In cross-examination, Dr. Kolito, in answer to Crown
counsel’s questions, confirmed that the absence of any evidence
of hallucinations, delusions or paranoid beliefs in this case was
a significant point that detracted from the opinion of lack of
capacity or cocaine psychosis. Further reference was made to the
absence of such evidence by Crown counsel in his closing address.
[29] Counsel for the appellant, who was not counsel at trial,
placed much reliance on Crown counsel’s cross-examination and
closing address on this latter point to demonstrate the prejudice
occasioned by the exclusion of this evidence. In my view, Crown
counsel’s approach to this issue must be considered in context.
The further series of hypothetical questions put to Dr. Kolito by
defence counsel, prefaced as they were with the remark that there
were “other things” that were not before the jury, would
inevitably lead the jury to infer that the appellant had made the
irrational statements referred to in counsel’s questions.
Whether intended or not, this course of questioning had the
effect of circumventing the trial judge’s ruling and was highly
improper. Faced with this situation, it would perhaps have been
preferable for Crown counsel to have simply objected to the
course taken by defence counsel in his examination and for the
trial judge to instruct the jury to disregard counsel’s remark
and to remind them that counsel’s questions did not constitute
evidence. However, in all the circumstances, it is my view that
it is not open now to the appellant to rely on the outcome of
defence counsel’s ill-advised tactic in support of this ground of
appeal.
[30] However, regardless of the impact of the evidence elicited
by the further series of questions, it cannot be said that the
exclusion of the appellant’s prior statements would not have
affected the verdict. I would therefore give effect to this
ground of appeal.
b) Statements made at the hospital
[31] At the close of the defence case, counsel for the appellant
sought to introduce evidence of the statement made by the
appellant to the police on the morning of his arrest while he was
in the hospital, on the basis that the prosecution was implicitly
alleging recent fabrication by the appellant. The application was
dismissed by the trial judge. In his reasons, he succinctly set
out the question for determination in the following words:
If a story is given by an accused immediately after an event
or upon his arrest, and the story later given at trial is one and
the same but challenged by the crown in cross-examination, does
that in itself indicate or permit the earlier statement to be
admitted on the basis of consistency, even if the statement is
self-serving? In my view, it does not.
[32] On appeal, the appellant submits that the Crown was clearly
implying that he was fabricating his version of events to conform
to his acquired understanding of the case against him. Counsel
for the appellant relies more particularly on the following
excerpt from the appellant’s cross-examination by Crown counsel
in support of this position.
Q. I asked you about that morning. You were aware of
everything that went on that morning.
A. No, I’m not, not the whole morning,
I’m not.
Q. You have a good memory of what happened.
A. Of some of it, yes, I do.
Q. What do you have, just sort of convenient memory
loss, maybe.
A. I don’t find any of this convenient.
[33] Previous consistent statements of a witness, including an
accused person, are generally inadmissible because they are
considered to be superfluous and of no probative value. The rule
is based on the rationale that the credibility of the witness is
not enhanced simply because the same statement was made before.
In some instances, the rule does not apply. One such instance
occurs when a witness’s testimony is challenged in cross-
examination as being a recent fabrication. In such a case, it is
not superfluous to lead evidence that the witness, on an earlier
occasion, made a statement consistent with the challenged
testimony because it serves to rebut the allegation of recent
fabrication.
[34] In my view, the trial judge was correct in refusing to admit
the statement in this case. Throughout the cross-examination of
the appellant, Crown counsel generally challenged the credibility
of his testimony but there was no allegation, either express or
implied, that the appellant had recently made up the story.
[35] The defence renewed its application to introduce the
appellant’s statement after Crown counsel delivered his closing
address. In his application to reopen the case, counsel argued
that Crown counsel had clearly alleged that the appellant’s
testimony was recently fabricated when he referred to it at one
point as having “a sense of tailoring” and later as being “too
tailored”. In the alternative, counsel moved for a mistrial.
[36] The trial judge refused the application. In his view, the
comments of Crown counsel in the context of the case did not
create a suggestion of recent fabrication but, rather, raised the
question “whether or not the events occurred as described by the
accused on the date in question”. He held that it was not
appropriate to reopen the case or to declare a mistrial.
[37] I see no reason to interfere with the trial judge’s exercise
of discretion. While the suggestion that certain testimony is
“tailored” can mean, depending on the context, that the witness
is adapting his story to suit the other evidence in the case, it
can also mean that the witness is simply adapting his story to
suit his purpose in explaining the events in question. In the
context of the evidence adduced at trial and Crown counsel’s
address as a whole, it is my view that the trial judge’s
interpretation was reasonable.
[38] Furthermore, I note that defence counsel’s main argument at
trial in support of the contention that the statement would serve
to rebut any allegation of recent fabrication was the fact that
his client could not have known at the time that he made his
statement in the hospital all the details of the evidence
including the fact that the neighbours had overheard him
repeatedly yelling “shut up”. In fact, the statement in question
is not very detailed. It simply referred to matters that the
appellant would obviously have known at the time because he was
there. And the statement certainly does not make any reference to
the fact that the appellant yelled “shut up” as contended.
[39] I therefore see no merit to this ground of appeal.
3. Trial Judge’s Instructions to the Jury
a) Provocation
[40] The trial judge did not instruct the jury on the defence of
provocation. Defence counsel objected and submitted that it was
mandatory that such an instruction be given in the circumstances
of this case. The trial judge indicated that he had not
instructed the jury on provocation because he was of the view
that there was no air of reality to the defence and because
defence counsel had not made submissions concerning provocation
at the end of the trial.
[41] Section 232 of the Criminal Code, R.S.C. 1985, c.C-46,
provides that murder may be reduced to manslaughter if the person
who committed it did so in the heat of passion caused by sudden
provocation. The language of s. 232 was considered in R. v. Hill,
1986 58 (SCC), [1986] 1 S.C.R. 313 where the Supreme Court set out three
questions that must be answered in determining whether the
defence of provocation is available:
- Would an ordinary person be
deprived of self control by the act or
insult?
- Did the accused in fact act in
response to those “provocative” acts; in
short, was he or she provoked by them
whether or not an ordinary person would
have been?
- Was the accused’s response sudden
and before there was time for his or her
passion to cool?
These questions are questions of fact for the jury to determine.
However, before the defence is put to the jury, the trial judge
must determine whether there is any evidence to support it.
Cory J. in R. v. Thibert (1996), 1996 249 (SCC), 104 C.C.C. (3d) 1 at 6 (S.C.C.)
set out the trial judge’s function as follows:
None the less, the trial judge must still determine if there
is any evidence upon which a reasonable jury properly instructed
and acting judicially could find that there had been
provocation. If the trial judge is satisfied that there is such
evidence, then the defence must be put to the jury to determine
what weight, if any, will be attached to the evidence.
Obviously, the trial judge should not weigh the sufficiency of
the evidence. This is the function reserved for the jury. A trial
judge considering whether the evidence has met the threshold test
must also take into account the nature of the wrongful act or
insult and how that act or insult should be viewed in the context
of the case.
[42] In my view, the trial judge effectively usurped the
function of the jury when he determined that the defence of
provocation had no “air of reality”. The defence may well have no
air of reality if the appellant’s testimony is disbelieved.
However, that is a matter for the jury to determine.
[43] In this case, there was some evidence in support of the
partial defence of provocation. Counsel for the appellant noted
the following in her submissions: the appellant’s evidence that
he was attacked by the deceased with two knives; his evidence
that he became enraged; the absence of other evidence of motive
for the killing; evidence that this was one continuous
transaction with no opportunity for his passion to cool; the
appellant’s own injuries, some of which were consistent with
being defensive wounds; and the evidence of cocaine and alcohol
intoxication that may be relevant to the subjective elements of
the defence.
[44] I agree with counsel for the appellant when she states that
the appellant’s evidence, depending on the view taken of it by
the jury, could support either self-defence or provocation. It
would have been open to the jury to accept the appellant’s
evidence as to how the struggle began but still conclude that the
appellant acted outside the scope of self-defence under s. 34(2).
[45] The trial judge was also incorrect in stating that the
defence had not relied on provocation. At the end of the case, in
the absence of the jury, the trial judge asked both counsel to
set out their respective positions so as to assist him in the
preparation of his charge. In response, defence counsel set out
his position and expressly included provocation as part of the
theory of the defence. The Crown took the position that
provocation did not apply to the facts of the case. Defence
counsel also expressly referred to provocation in his address to
the jury and advised the jury that the trial judge would instruct
them on that issue.
[46] For these reasons, I would give effect to this ground of
appeal.
b) Self-defence
[47] Both parties agreed at trial s. 34(2) of the Criminal Code
was the only applicable provision to the facts of this case. The
trial judge instructed the jury accordingly. The appellant,
however, notes two difficulties with the charge.
[48] First, the appellant submits that the trial judge erred in
making any reference to the use of excessive force in his
instructions because, so long as the appellant meets the
requirements set out in s. 34(2), it does not matter if the force
used is excessive. The appellant notes more particularly the
following instruction given to the jury:
To fall within this subsection, the force used cannot be
excessive in self-defence unless the accused acted under
reasonable apprehension of death or grievous bodily harm to his
person. To consider this question you will have regard to the
nature of the assault, if you accept the accused’s evidence and
whether the force used by him to resist the assault was no more
than reasonable to protect himself, or if, in the alternative,
upon the facts accepted the accused had a reasonable apprehension
of grievous bodily harm.
[49] The appellant relies on R. v. Hebert (1996), 107 C.C.C. (3d)
42 at 50 (S.C.C.) where the Court states:
Under s. 34(2), the use of excessive force by the accused
will not take away self-defence. In R. v. Ward (1978), 4 C.R.
(3d) 190 (Ont. C.A.), it was properly found that it is not a
requirement of s. 34(2) that the force used must be proportionate
to the assault against which the accused is defending him or
herself. As well in R. v. Mulder (1978), 1978 2496 (ON CA), 40 C.C.C. (2d) 1 (Ont.
C.A.), it was correctly held that there is no requirement that
the force be no more than is necessary to prevent death or
grievous bodily harm.
[50] It is clear from Hebert that the appellant is correct in
stating that whether an accused, from an objective standpoint,
actually uses excessive force, or more force than necessary, is
not the issue under s. 34(2). The question is, rather, whether
the accused, in causing the death, acted under reasonable
apprehension of death or grievous bodily harm and in the belief,
on reasonable grounds, that he could not otherwise preserve
himself from death or grievous bodily harm.
[51] I agree that the above-noted excerpt from the trial judge’s
instructions was not very clear on this issue. Even though the
words “the force used cannot be excessive in self-defence” were
qualified, it would have been preferable to avoid this
phraseology and to instruct the jury more in accordance with the
language used in s. 34(2).
[52] The second difficulty noted by the appellant with respect to
the instructions on self-defence is the failure to relate the
facts to the requirements under s. 34(2). Again, I do agree that
it would have been preferable to do so.
[53] However, while I agree that the appellant’s submissions have
merit, in view of the conclusion I have reached that the
conviction must be set aside on other grounds, it is not
necessary for me to decide whether to give effect to the
submission that the instructions on self-defence amounted to
reversible error.
c) Intoxication
[54] The appellant submits that the trial judge committed a
reversible error by failing to link his instruction on
intoxication to his instruction on the common sense inference
that a sane and sober person intends the natural consequences of
his acts. The appellant relies on R. v. Robinson (1996), 105
C.C.C. (3d) 97 at 122-23 (S.C.C.) where Lamer C. J. states as
follows:
The respondent correctly argues, in my view, that where
there is some evidence of intoxication, a trial judge must link
his or her instructions on intoxication with the instruction on
the common sense inference so that the jury is specifically
instructed that evidence of intoxication can rebut the inference.
In both the model charges set out in MacKinlay and Canute, this
approach is taken. This instruction is critical since in most
cases jurors are likely to rely on the inference to find intent.
Moreover, if no instruction is given, then a confused jury may
see a conflict between the inference and the defence and resolve
that conflict in favour of their own evaluation of common sense:
see Korzepa, at p.505. Therefore, an instruction which does not
link the common sense inference with the evidence of intoxication
constitutes reversible error.
[55] The charge in this case was given before the decision in
Robinson. While the trial judge did not specifically relate the
evidence of intoxication to the common sense inference, he made
it clear to the jury that all the evidence should be considered
on the question of intent and specifically told them that the
inference should not be made if, on all the facts of this case,
it was their opinion that it was not a correct inference or if
they had any reasonable doubt on this issue. When viewed in
context, it is my view that there was no reversible error in this
case.
[56] This charge was also given before this court’s decision in
R. v. Rathwell (1998), 1998 4574 (ON CA), 130 C.C.C. (3d) 302 (Ont. C.A.). It may be
worth noting the court’s remarks in Rathwell at pp. 314-15 where
it is indicated that “[c]harges would generally improve if the
sane sober person boilerplate were eliminated, or at least
adjusted to the particular circumstances.”
d) Motive
[57] The appellant submits that it was incumbent upon the trial
judge to instruct the jury that the absence of evidence of motive
in this case tended to support the appellant’s evidence.
Reference is made to R. v. Lewis (1979), 1979 19 (SCC), 47 C.C.C. (2d) 24 at 34-
8 (S.C.C.) where the Supreme Court gives guidance with respect to
jury instructions on motive.
[58] In my view, the trial judge was under no duty to instruct
the jury on the absence of motive on the facts of this case nor
was he asked to do so by defence counsel at trial. I see no
reason to interfere with the exercise of his discretion on this
issue.
4. Disposition
[59] For these reasons, I would allow the appeal against
conviction, quash the conviction and order a new trial. In view
of this result, it is not necessary to deal with the leave
application to appeal the sentence.
(signed) "Louise Charron J.A."
(signed) "I agree J. J. Carthy J.A."
(signed) "I agree Robert J. Sharpe J.A."
RELEASED: January 24, 2000