DATE: 20010426

DOCKET: C27005

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– WILLIAM DUTTON (Appellant)

BEFORE: CATZMAN, ABELLA and FELDMAN JJ.A.

COUNSEL: Alison Wheeler, for the appellant W. Graeme Cameron, for the respondent

HEARD: April 18 and 19, 2001

On appeal from the conviction imposed by Justice Robert N. Weekes, sitting with a jury, dated June 24, 1996.

O R A L E N D O R S E M E N T

[1] Counsel for the appellant raised five issues, with which we propose to deal in the order in which they were argued.

[2] With respect to the reasonable doubt issue, we are satisfied by reference to Russell that this pre-Lifchus charge, although not ideal, was adequate in the context of the facts of this case and that in that context there was substantial compliance with the requirements of Lifchus and the cases that succeeded it.

[3] We see no error in the manner in which the trial judge reviewed the evidence for the jury on the issue of intent. The position strongly taken by very experienced defence counsel at trial was that the appellant was not affected by alcohol that night. Defence counsel did not ask either before or after the charge for an instruction which would have been contrary to his position.

[4] With respect to the circumstantial evidence issue, counsel for the appellant submitted that the instructions, although correct, dealt only with the issue of the identity of the person who committed the offence but not with the issue of intent. We do not agree. The trial judge concluded his instruction by saying that the jury had also to be satisfied beyond a reasonable doubt regarding the other elements of the offence previously mentioned, which included the element of intent.

[5] With respect to the statements of the deceased and his state of mind, both counsel at trial agreed with the trial judge respecting the manner in which this was to be put to the jury, and we see no prejudice to the appellant in the instructions given in this regard.

[6] With respect to the appellant’s character, it was open to the trial judge to conclude, as he did, that the appellant had put his character in issue and to give the instruction he did, and we see no basis on which to interfere.

[7] Accordingly, the appeal is dismissed.

Signed: "M.A. Catzman J.A."

"R.S. Abella J.A."

"K. Feldman J.A."