DATE: 20030423

DOCKET: C37597

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – RONALD CAMPBELL (Appellant)

BEFORE: CARTHY, GOUDGE and GILLESE JJ.A.

COUNSEL: Delmar Doucette for the appellant

Christine Tier the respondent

HEARD: March 25, 2003

On appeal from the conviction entered by Justice Hugh Roderick McLean of the Superior Court of Justice, sitting with a jury, dated January 8, 2001 and from the sentence imposed on April 10, 2001.

E N D O R S E M E N T

[1] The appellant was convicted of attempted murder and sentenced to a term of nine years imprisonment. He appeals both conviction and sentence. The issue at trial was whether the appellant was guilty of attempted murder, as charged, or aggravated assault, which was conceded.

[2] The appellant raises two issues. First, he submits that the trial judge erred in the first step of the W.D. instruction to the jury. Second, he argues that the trial judge gave an unnecessary instruction distinguishing an attempt from mere preparation under s. 24 of the Criminal Code with the result that he obscured the simple issue of whether the appellant intended to kill the complainant.

The W.D. Charge

[1] The impugned statement in the trial judge’s charge is:

First, if you accept the evidence favouring the accused, including his testimony on this matter, and find it to be factually true when weighed against the contradictory evidence, if so, you must acquit the accused.

[2] In our view, this charge does not contravene W.D. It is not reversible error to describe the first W.D. step in terms of believing the accused’s evidence when “weighed against” the contradictory evidence. See R. v. DLM, [1996] O.J. No. 3596 (C.A.).

[3] Assessment of the accused’s evidence cannot be done in isolation. As the Crown concedes, it would have been preferable to describe this step in terms of considering the accused’s evidence in the context of the entirety of the evidence, since this steers more clearly away from the risk of simply choosing between the accused’s evidence and the complainant’s evidence.

[4] Nonetheless, the language used here is not fatal. It does not invite the jury to choose between two versions of the event; rather, it recognizes the reality that the context in which the appellant’s evidence had to be considered was contradictory evidence from the complainant.

The s. 24 Charge

[5] There is no doubt that the charge unnecessarily referred to s. 24(2) of the Code. However, the charge made it clear that the key task for the jury was to determine if the Crown had proven the necessary intent for attempt murder. Having left the jury so squarely with this task, we do not think that the jury would have been tempted to conclude from the s. 24(2) instruction that the trial judge was answering this question for them. Rather, they would have understood that the trial judge was describing for them the distinction between an attempt to commit an offence and mere preparation.

The Sentence Appeal

[6] The appellant argues that the sentencing judge erred in giving prominence to denunciation and deterrence despite the fact that the appellant was a first offender.

[7] We do not agree. The sentence is within the appropriate range for attempt murder in a domestic situation. This court has repeatedly stated that the principle of deterrence is of paramount importance in determining the appropriate sentence for crimes of domestic violence. See, for example, R. v. Edwards (1996), 1996 1522 (ON CA), 28 O.R. (3rd) 54 (C.A.).

Disposition

[8] Accordingly, the conviction appeal is dismissed. Leave to appeal against sentence is granted and the sentence appeal is dismissed.

“J.J. Carthy J.A.”

“S.T. Goudge J.A.”

“E.E. Gillese J.A.”