DATE: 20021126

DOCKET: C35273

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. MARK JOSEPH CHAMPAGNE (Applicant/Appellant)

BEFORE: DOHERTY, ROSENBERG and CRONK JJ.A.

COUNSEL: Christopher Hicks for the appellant

Eric Siebenmorgen for the respondent

HEARD: November 15, 2002

ORALLY

RELEASED: November 15, 2002

On appeal from the conviction entered by a jury presided over by Justice Rose Boyko on March 23, 2000 and the sentence imposed on April 7, 2000.

E N D O R S E M E N T

[1] The appellant was convicted of various offences arising out of his relationship with a woman named Wilson. These included the attempted murder of Ms. Wilson and the aggravated assaulted of her five year old son. The trial judge concluded that a sentence of twelve years for attempted murder and a total sentence of thirteen years and three months was appropriate. She credited the appellant with three and one-half years for the twenty month pre-trial custody and imposed a total sentence of nine years and nine months. He appeals conviction and sentence.

[2] Various grounds of appeal were advanced on behalf of the appellant. We propose to address the three issues on which we required submissions from the respondent, and the appellant’s contention that the trial judge misdirected the jury as to the mens rea of attempted murder.

[3] Counsel for the appellant quite properly took the position that the attempted murder conviction was the focal point of the appeal. He argued that that conviction should be set aside, a conviction for aggravated assault substituted and the sentence reduced to reflect that change.

[4] Counsel submitted that the jury should have been told that the mens rea for attempted murder required subjective foresight of the likelihood of death. We disagree. The mens rea of attempted murder as set out in s. 229(a)(i) of the Criminal Code is an intention to kill. In our view, references to the subjective foresight of the likelihood of death are unnecessary and potentially confusing in an instruction as to the mens rea required for attempted murder.

[5] Counsel next submitted that the trial judge did not adequately respond to the jury’s request for further instructions on the intent required for attempted murder. Once again, we must disagree. The trial judge considered the submissions of counsel before answering the jury’s question and her response accorded with the joint position taken by counsel for the Crown and the defence. Her brief answer was correct in law. It is safe to conclude that it was responsive to the jury’s problem as there were no follow-up questions from the jury.

[6] Counsel next submitted that the trial judge should have told the jury that the appellant’s rage, considered along with the other circumstances, could result in a reasonable doubt as to whether the appellant had the intention to commit murder when he stabbed Ms. Wilson numerous times. The trial judge referred specifically to “the state of rage” in summarizing the position of the Crown. It was part of the Crown’s position that rage was one of the factors which led the appellant to form the necessary intent. The trial judge made no reference to rage when outlining the position of the defence or the evidence relied on by the defence. She did, however, refer to the circumstances which, on the defence theory, gave rise to that rage. Even without a specific reference to rage, we are satisfied that the jury would have understood the position of the defence as it related to the appellant’s agitated state of mind and appreciated the evidence relied on by the defence to support that position. A more direct and detailed reference to rage in the context of the evidence led in this case would not have assisted the appellant.

[7] The conviction appeal is dismissed.

[8] The appellant also seeks leave to appeal the sentence. He suggests that the trial judge made three errors in the course of her reasons for sentence. Without deciding whether the trial judge made any of those errors, we prefer to proceed directly to the appropriateness of the total sentence imposed. This was a terrible case of domestic abuse. There were three separate victims and two discrete attacks. During the second attack, the appellant attempted to kill Ms. Wilson. His failure was not through any lack of effort on his part. Even if the trial judge fell into error in the course of her reasons thereby permitting this court to consider the fitness of the sentence anew, we would not interfere with the sentence.

[9] We would grant leave to appeal sentence, but would dismiss the appeal from sentence.

“Doherty J.A.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”