DATE: 20020206
DOCKET: C35496
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) -and- KEVIN ROSS SHAPWAYKEESIC (Appellant)
BEFORE:
MOLDAVER, FELDMAN and MacPHERSON JJ.A.
COUNSEL:
Karen Shai
For the appellant
Keith E. Wright
For the respondent
HEARD:
January 30, 2002
RELEASED ORALLY:
January 30, 2002
On appeal from conviction by Justice Michael Meehan, sitting with a jury, dated February 14, 1997 and from sentence dated February 21, 1997.
E N D O R S E M E N T
[1] The appellant appeals from his convictions for second degree murder. He raises several grounds of appeal in support of his submission that the convictions should be quashed and a new trial ordered.
[2] Before addressing the various grounds, we note that the sole issue in this case was whether the appellant, on account of drunkenness, lacked the requisite intent for second degree murder. In his charge, the trial judge reviewed at some length the evidence relating to the appellant’s state of intoxication at the time of the killings and he made it clear to the jury that they were to find the appellant not guilty of second degree murder if, after considering the whole of the evidence, they believed or had a reasonable doubt that he did not possess one or the other of the requisite intents for murder. At the conclusion of the charge, defence counsel at trial [not Mr. Wright] observed that in his view, the charge was not biased in any way and that it was fair and balanced, an observation with which we agree.
[3] The appellant complains that the trial judge made a number of errors in his instructions to the jury on the defence of drunkenness. We disagree. In our view, it was appropriate for the trial judge to leave the common sense inference to the jury and we are satisfied that in doing so, he clearly linked it with the evidence of intoxication. We are also satisfied that the trial judge properly instructed the jury on the requisite intent for murder and although his explanation as to how the appellant’s state of intoxication could negative that intent was not ideal, it was adequate in the circumstances.
[4] Finally, the trial judge, at the request of defence counsel, did not instruct the jury on capacity to form the requisite intent. Instead, he told the jury that the sole issue to be determined was whether the appellant possessed one or the other of the requisite intents for murder at the time of the killings. In the circumstances, the fact that Crown counsel may have referred to the appellant’s capacity in his closing address resulted in no prejudice to the appellant.
[5] With respect to the alleged Miller error, while we agree that the impugned sentence is wrong and should not be repeated, [^1] when the charge is read fairly as a whole, we are not persuaded that the jury would have been left with the impression that they could only find the appellant not guilty of murder on evidence found to be credible and reliable. The trial judge told the jury on numerous occasions that they were to consider the whole of the evidence in arriving at their verdict and if, after doing so, they were left in a state of reasonable doubt on the issue of the appellant’s intent, they could not find him guilty of murder. Moreover, the trial judge made it clear to the jury that they could “have a reasonable doubt as to the guilt of the accused arising from the credibility of witnesses.” Accordingly, we would not give effect to this ground of appeal.
[6] With respect to the submission that the trial judge erred in failing to properly instruct the jury as to the difference between inferences and speculation and in failing to caution the jury against relying upon speculative submissions made by Crown counsel in his closing address, we are satisfied that the trial judge properly instructed the jury on the difference between inferences that could be drawn from proven facts and speculation. As for the Crown’s address, we see no merit in the submission that Crown counsel invited the jury to speculate.
[7] Finally, with respect to the trial judge’s instructions on the meaning of reasonable doubt, the test is substantial compliance with the principles set forth in Lifchus. Although the charge did not comply with all of the Lifchus principles, it contained many of the factors that have preserved similar charges in later cases. These include: (1) the trial judge linked the presumption of innocence to the burden of proof and the meaning of reasonable doubt; (2) the trial judge gave a special instruction on the high standard of proof needed to sustain a conviction on circumstantial evidence, and he gave that instruction with respect to the crucial issue of intent; and (3) apart from the instruction on reasonable doubt, there were no other errors in the charge. Accordingly, we would not give effect to this ground of appeal.
[8] In the result, the appeal from conviction is dismissed.
[9] With respect to sentence, the appellant submits that the trial judge erred in increasing his period of parole ineligiblity from ten to fifteen years. We have not been persuaded that the trial judge erred in principle in arriving at the sentence in question. While we think the increase was substantial, we cannot say, in all of the circumstances, that it was manifestly excessive. Accordingly, leave to appeal sentence is granted but the appeal is dismissed.
Signed: “M. J. Moldaver J.A.”
“K. Feldman J.A.”
“J.C. MacPherson J.A.”
[^1]: The trial judge instructed the jury as follows: “Evidence is the body of testimony you heard, including the exhibits filed. Facts are the things you choose to believe from the evidence. The things that you choose not to accept must not be taken into account when arriving at your verdict.” [Emphasis added]