DATE: 20010430

DOCKET:C32442

COURT OF APPEAL FOR ONTARIO

ROSENBERG, GOUDGE AND SIMMONS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Gregory Lafontaine for the appellant

Respondent

• and -

GARNET HANIFAN

Trevor Shaw for the respondent

Appellant

Heard: February 23, 2001

On appeal from the conviction by Justice Frank R. Caputo and a jury on January 28, 1999 and on appeal from the sentence imposed by Justice Frank R. Caputo, on February 12, 1999.

GOUDGE J.A.:

[1] The appellant was charged with manslaughter for the unlawful killing of Oliver Laitinen on July 5, 1998 in the City of Sault Ste. Marie. He was convicted on January 28, 1999 and was subsequently sentenced to six years imprisonment.

[2] He appeals both his conviction and his sentence.

[3] The charge was laid after Mr. Laitinen died following a brief encounter with the appellant at the end of an evening of drinking and playing pool at the Algoma Hotel in Sault Ste. Marie. At trial, the principal theory of the defence was that the appellant was exercising legitimate self-defence.

[4] On his conviction appeal, the appellant raised a number of arguments. Primary amongst them were, first, that the trial judge erred in several respects in his charge on self-defence and, second, that the trial judge erred in failing to instruct the jury on the limited use they could make of evidence of the appellant’s after-the-fact conduct.

[5] For the reasons that follow, I have concluded that neither of these arguments nor the appellant’s other arguments can succeed. Nor do I find merit in his appeal from sentence. Hence both the conviction appeal and the sentence appeal must be dismissed.

[6] Before addressing the appellant’s arguments in turn, an outline of the facts is necessary.

THE FACTS

[7] On July 4, 1998, the appellant spent the evening drinking and playing pool with his friend Victor Duffield at the Algoma Hotel in Sault Ste. Marie. The deceased, Oliver Laitinen, and his friend Seppo Lukkarila were also at the hotel that evening and they too were drinking and playing pool. At one point during the evening the appellant, who was waiting for his turn at the pool table, complained about how slowly Mr. Laitinen was playing, to which Mr. Laitinen responded “shut the fuck up”. Later the appellant and Mr. Laitinen were both playing pool when the appellant missed a shot, threw his cue on the table scattering the balls and went to the washroom. Mr. Laitinen took this to mean that the game had been forfeited and racked up the balls for a new game. As a result, when the appellant returned from the washroom, words were exchanged between the two men.

[8] Marilyn Raven was also at the bar that night. She was known to both men and chatted with each of them over the course of the evening. And when the bar closed, Ms. Raven left with the appellant and Mr. Duffield. They were sitting across the street from the hotel when Mr. Laitinen and Mr. Lakkarila left the bar and began to cross the street towards them.

[9] At this point, the evidence of the Crown was that Mr. Laitinen and Mr. Lukkarila were afraid that the appellant was lying in wait for them, and as they crossed the street the appellant walked up to Mr. Laitinen and punched him once in the face. The force of the blow knocked Mr. Laitinen to the ground and he struck his head on the pavement. He suffered head injuries which caused his death several days later.

[10] The appellant’s evidence was that Mr. Laitinen and Mr. Lukkarila exited the bar and walked directly towards him in a provocative manner. Mr. Laitinen said something like “let’s go” and seemed to be raising his hands above his waist. The appellant responded by punching him once in self-defence. After Mr. Laitinen fell to the ground the appellant panicked and fled. He surrendered to the police the next day.

ANALYSIS

[11] In support of the appellant’s position that he acted in self-defence, defence counsel requested that only one self-defence provision be put to the jury, namely, s. 34(1) of the Criminal Code. While the Crown suggested that s. 37 might also be put to the jury, the trial judge charged the jury only in respect of the former section. These two provisions read as follows:

34(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

37(1) Everyone is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force was intended to prevent.

[12] The appellant raises four complaints about the charge on self-defence.

[13] First, he argues that the trial judge misdefined the assault necessary to trigger the defence by requiring that there be both words and some other act or gesture. I disagree. The trial judge made clear to the jury that the relevant definition of assault was that found in s. 265(1)(b) of the Code namely, an attempt or a threat by act or gesture to apply force to another person if the person doing so has, or causes the other to believe upon reasonable grounds that the person attempting or threatening has, the present ability to effect that purpose. The trial judge quoted the essence of the subsection to the jury. His reference in this context to the acts and words of the deceased clearly referred to the evidence of the appellant who testified that he hit Mr. Laitinen in response to Mr. Laitinen approaching him in a provocative way, starting to raise his arms, and saying “let’s go”. The appellant testified that he acted in response to the words and the gesture. The jury would have easily understood this and the charge cannot be faulted on this score.

[14] Second, the appellant says that in explaining the possibility of the appellant’s mistaken belief concerning the deceased’s intention, the trial judge left the determination as an entirely objective one without any consideration of the appellant’s own circumstances. This is simply an incorrect view of the charge. The trial judge made clear that the jury’s consideration of this issue must begin with the appellant’s subjective perception and then move to whether this was an honest, but mistaken belief that was reasonable in all the circumstances.

[15] Third, the appellant argues that the trial judge erred in leaving the issue of provocation to the jury as part of their consideration of self-defence, pursuant to s. 34(1) of the Code. Again, I disagree. While the evidence of provocation was far from strong, the appellant’s exchanges with the deceased at the pool table (complaining that the deceased was taking too long and throwing his cue on the table after which he and the deceased had words) constituted enough to leave the issue of provocation with the jury. In his charge, the trial judge not only referenced this evidence, but properly made clear its relative weakness. He did not err in this regard.

[16] Finally, the appellant argues that, having put the issue of provocation to the jury, the trial judge erred in confining his self-defence instruction to s. 34(1) and failing to put s. 37 as well. The appellant points out that if an accused provokes the assault to which he responds he cannot avail himself of the self-defence provision found in s. 34(1) whereas the s. 37 description of self-defence contains no such disqualifier. The appellant says that the consequence of leaving provocation with the jury without an instruction on s. 37 was that he could have been completely deprived of any defence of self-defence on the basis of provocation and that this constitutes an error.

[17] I agree that in the specific circumstances of this case the trial judge should also have instructed the jury on self-defence as found in s. 37 to deal with the possibility, however theoretical, of the jury finding that the evidence of provocation negated the application of s. 34(1). The defence request to put only that section was not in my view founded on any real tactical advantage sufficient to deprive the appellant of the possibility of the defence of self-defence to a provoked assault. Hence it would have been better had the trial judge also put s. 37 to the jury.

[18] However, if that had been done I think the result would necessarily have been the same. I would therefore apply s. 686(1)(b)(iii) to dismiss this ground of appeal. The evidence of provocation by the appellant was very weak. The trial judge said as much to the jury. The real issue was whether a threatened application of force was reasonably perceived by the appellant and whether his response was proportionate to it. That is precisely the issue that the jury would have been required to address whether under s. 34(1) or s. 37. They would have reached the same verdict, even if they had also been instructed on s. 37.

[19] Thus, in summary, I conclude that all of the appellant’s arguments concerning self-defence must fail.

[20] Next, the appellant argues that the trial judge erred in admitting considerable evidence of after-the-fact conduct without providing the jury with any instruction of the permissible use which could be made of that evidence.

[21] I do not think that the trial judge erred in this regard. This evidence was tendered by the Crown simply as part of the narrative. At the pre-charge conference with the trial judge, Crown counsel agreed that he would not ask the jury to rely on this evidence to infer the appellant’s consciousness of guilt. As a result, both Crown and defence counsel and the trial judge agreed that there would be no instruction on the point. The defence was content with this way of proceeding. Indeed, had there been an instruction on this matter, it would have carried the risk that highlighting the after-the-fact conduct of the appellant, (including his flight) would have magnified for the jury the importance of this evidence that was not a central part of the Crown’s case. It was beneficial to the appellant to have as little as possible said about the adverse inferences that could be drawn from this evidence. Hence this ground of appeal fails.

[22] It was unnecessary for the court to call on the Crown to respond to any of the remaining six grounds of appeal. I will deal briefly with each of them.

[23] First, the trial judge correctly instructed the jury on the foresight of bodily harm required, where, as here, the death results from the unlawful act of assault. He made clear that the Crown must prove the objective foreseeability of the risk of nontrivial bodily harm.

[24] Second, the trial judge responded properly to the jury’s request to be given a copy of the Criminal Code section defining manslaughter by giving them a complete listing of the relevant statutory provisions. A further instruction on the elements of the offence of manslaughter was not required to respond adequately to this question.

[25] Third, while the defence led some evidence that the deceased could be a rude, obnoxious drunk, it was not necessary for the trial judge to instruct the jury that this evidence was relevant in assessing the issue of self-defence. Not only was this evidence of the deceased’s propensity weak, but it was of only marginal relevance. Even on the appellant’s version of events, there was little about the deceased’s approach to him that could be said to be rude or obnoxious.

[26] Fourth, the appellant complains that the trial judge excised too little of his criminal record in disposing of the appellant’s Corbett application. I disagree. The trial judge gave substantial reasons for the exercise of his discretion in this regard. He balanced prejudice to the appellant with the need to avoid an unbalanced picture of him. Moreover, the trial judge properly cautioned the jury concerning the proper use to be made of this record.

[27] Fifth, the appellant’s complaint about the charge on causation must also fail. The trial judge explained the Crown’s obligation to prove causation in simple error-free terms, and the evidence was overwhelming that the punch by the appellant contributed to Mr. Laitinen’s death in more than a de minimis way.

[28] Finally, the appellant seeks to appeal his sentence. However, given the severe blow struck by the appellant, its tragic consequences and the appellant’s criminal record, this sentence was within the appropriate range for this offence.

[29] In conclusion, the appeal of conviction must be dismissed. Leave is granted to appeal sentence, but that appeal must also be dismissed.

Released: April 30, 2001 “MR”

“S.T. Goudge J.A.”

“I agree M. Rosenberg J.A.”

“I agree Simmons J.A.”