DATE: 20030507

DOCKET: C35698

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– CHARLES FERRARA (Appellant)

BEFORE: WEILER, ABELLA and ARMSTRONG JJ.A.

COUNSEL: Benson Cowan, for the appellant Alex Alvaro, for the respondent

HEARD: April 17, 2003

RELEASED ORALLY: April 17, 2003

On appeal from the conviction imposed by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury, dated October 3, 2000, and the sentence imposed by Justice Ewaschuk dated October 6, 2000.

E N D O R S E M E N T

[1] The appellant raises three grounds of appeal in connection with the portion of the trial judge’s charge to the jury relating to aggravated assault and the accused’s defence of self defence.

[2] The first ground of appeal is that the trial judge failed to link the evidence of the prior assaults on the appellant to the appellant’s apprehension of death or grievous bodily harm.

[3] The trial judge told the jury that they were entitled to assess the reasonableness of the accused’s apprehension of death or grievous bodily harm and belief in light of his prior experience with the complainant. In his review of the evidence the trial judge also reviewed the two prior occasions where the complainant assaulted the appellant. In his recharge to the jury the trial judge told the jury that with respect to apprehension of death or grievous bodily harm, there was both a subjective and objective component and that the subjective component related to the accused’s belief. In our opinion the trial judge’s charge to the jury sufficiently linked the evidence of the prior assaults on the appellant to the accused’s apprehension of death or grievous bodily harm.

[4] In connection with the issue of grievous bodily harm, the appellant also complains that the trial judge failed to define grievous bodily harm. The trial judge referred to “grievous” or “serious” bodily harm throughout his charge. The first ground of appeal is dismissed.

[5] The second ground of appeal is that the trial judge did not charge the jury on the availability of s. 37 of the Code. We agree with the submission in the respondent’s factum that section 37 could not have helped the appellant because it permits only the use of proportional force and would have undermined the defence put forward under section 34(2). Defence counsel did not ask the trial judge to charge on section 37 and there was no objection to the charge on this basis.

[6] The final ground of appeal is whether the trial judge erred in his instructions on the burden of proof. We disagree that the trial judge made remarks throughout the charge which could only diminish the burden of proof. The trial judge’s charge stressed the burden of proof upon the Crown, and he related it to the essential elements of each offence and to the defence of self-defence. Nothing in the charge diluted the burden of proof, especially when the charge is read as a whole.

[7] We also disagree that in his charge the trial judge improperly collapsed the three parts of R. v. W(D) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) into two parts, thereby eliminating the middle part, that if the jury rejected the accused’s evidence but had a reasonable doubt about it they must acquit the accused. In our opinion the trial judge’s charge read as a whole does not take away the middle ground and the jury would have understood the proper burden of proof.

[8] The appeal is, therefore, dismissed.

“Karen M. Weiler J.A.”

“R. S. Abella J.A.”

“Robert P. Armstrong J.A.”