DATE: 20030908
DOCKET: C36947

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - ABIMBOLA OLUBOWALE (Applicant/Appellant)

BEFORE:

CARTHY, DOHERTY, and SHARPE JJ.A.

COUNSEL:

Christopher Hicks for the appellant

Gillian Roberts for the respondent

HEARD & ENDORSED:

September 03, 2003

On appeal from the conviction imposed by Justice Paul G. Philp of the Superior Court of Justice dated April 10, 2001.

APPEAL BOOK ENDORSEMENT

[1] Where, as in this case, the defence of self-defence rested on an apprehended assault, the trial judge's direction that the jury should consider the reasonableness of the appellant's belief in the context of deciding whether there was an unlawful assault was appropriate.

[2] We see no error in the instruction on s. 34(2) of the Criminal Code.

[3] We also see no error in the failure to instruct on s. 37. Trial counsel did not request the instruction. The only possible way that s. 37 may have been engaged was if the appellant provoked the assault, thereby removing himself from s. 34(1). The trial judge all but took that possibility away from the jury in his instruction. In all other aspects, s. 37 presented a much higher hurdle to the appellant than did s. 34(1).

[4] The Crown relied on the evidence of the appellant's conduct immediately after the assault and his statement to the police to challenge the credibility of the appellant's evidence that he acted in self-defence. The trial judge dealt with this evidence in the same way in his instructions. We see no error.

[5] The trial judge admitted evidence of the deceased's peaceful disposition. We see no error in his ruling. The defence "opened the door" to the evidence in its cross-examination and in any event, the evidence was relatively innocuous.

[6] Appeal dismissed.

"D. Doherty. J.A."