- DATE: 20020617 DOCKET: C33050
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) - and - MILTON LLOYD GILLETT (Appellant)
BEFORE:
MOLDAVER, GILLESE, ARMSTRONG JJ.A.
COUNSEL:
Frank Addario and Tamara Duncan
For the appellant
Beverly Brown
For the respondent
HEARD:
June 4, 2002
RELEASED ORALLY:
June 4, 2002
On appeal from conviction for second degree murder by Justice John O'Driscoll, sitting with a jury, on June 22, 1999.
E N D O R S E M E N T
[1] The appellant appeals from his conviction for second degree murder. He also appeals against the increase in his parole eligibility from 10 to 16 years. For reasons that follow, we are of the view that the conviction cannot stand and a new trial must be ordered. Accordingly, we need not deal with the issue of sentence.
[2] The appellant raised the defences of provocation and lack of intent at trial. In our view, both defences were available on the record and the appellant was entitled to have each put to the jury fully and fairly.
[3] With respect to the defence of provocation, we are of the view that the trial judge improperly removed from the jury's consideration acts on the part of the deceased which could, in law, amount to wrongful acts within the meaning of s. 232(2) of the Criminal Code. According to the appellant, just prior to the fatal stabbing, the deceased not only insulted him, but she brandished a knife at him and in the ensuing struggle over the knife, she knocked out two of his teeth and inflicted cuts and injuries to his fingers. Evidence given by other witnesses confirmed the appellant's injuries. In addition, a fellow employee of the deceased testified to a conversation with the deceased the night before the homicide in which the deceased stated that she was fed-up with the appellant and that she felt like she could kill him. In our view, this evidence was relevant in assessing the veracity of the appellant's version of the events that immediately preceded the fatal stabbing.
[4] We are of the opinion that the brandishing of the knife and the ensuing physical struggle were capable in law of amounting to wrongful acts within the meaning of s. 232(2) of the Code and the jury should have been so instructed. As it is, the trial judge led the jury to believe that the only wrongful act they could consider stemmed from the appellant's evidence that the deceased stabbed him in the neck. The trial judge then immediately reminded the jury that neighbours did not see any injuries to the appellant when they observed him stabbing the deceased. In so instructing the jury, the trial judge effectively removed from the jury's consideration the potential wrongful acts of the deceased in first brandishing the knife at the appellant and then engaging in a struggle with him. The error in our view was serious because it left the jury with the erroneous impression that they could only consider the deceased's verbal insult in assessing the defence of provocation.
[5] With respect to the issue of intent, the trial judge failed to draw the jury's attention to the evidence capable of supporting his position that he lacked the requisite intent for murder at the time of the fatal stabbing. Evidence supporting his position came from Dr. Gojer who testified that in his opinion, the appellant may well have been acting reflexively and impulsively at the time of the stabbing and that he may also have been consumed by emotions of rage, jealousy and anger. Also relevant to this issue was the evidence given by neighbours who testified that the appellant appeared oblivious to what was going on around him when they appeared at the back door and attempted to prevent him from continuing to stab the deceased. The nature and number of stab wounds was also relevant in assessing the appellant's mental state at the critical time.
[6] In the context of his instructions on intent, the trial judge did not draw the jury's intention to this body of evidence and the jury was not told how it could impact on the critical issue of whether the appellant had the requisite intent for murder. This error was serious and it effectively removed from the jury's consideration one of the key defences available to the appellant.
[7] We need not decide whether standing alone, the errors which we have identified would have necessitated a new trial. In combination, we believe that the appellant's right to a fair trial was compromised. Accordingly, we would allow the appeal from conviction.
[8] We specifically refrain from addressing the hearsay issue raised by the appellant. If the Crown seeks to tender the impugned evidence from Mr. Titus at the new trial, it will be for the trial judge to determine its admissibility in accordance with the relevant authorities.
[9] In the result, the appeal is allowed, the conviction is set aside and a new trial on a charge of second degree murder is ordered.
Signed: "M.J. Moldaver J.A."
_____ "Robert P. Armstrong J.A." "Eileen Gillese J.A."