DATE: 20040614

DOCKET: C37041

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL WHITLEY (Appellant)

BEFORE: ABELLA, MOLDAVER and BORINS, JJ.A.

COUNSEL: Michael Lacy,

for the appellant

Gregory Tweney,

for the respondent

HEARD: June 9, 2004

RELEASED ORALLY: June 9, 2004

On appeal from the conviction entered by Justice T.R. Lofchik, sitting with a jury, dated March 8, 1999.

E N D O R S E M E N T

[1] At the outset of the appeal, the appellant abandoned the grounds relating to the admissibility of his statement. The narrow remaining issue on this appeal is whether the trial judge, in response to the jury’s final question, erred in failing to repeat to them his earlier re-instruction on the question of the intent required under s. 229(a)(ii) of the Criminal Code, namely, that it must be subjective.

[2] Both counsel agree, in response to the defence counsel’s objection to the original charge, that the trial judge committed no error in his recharge. The recharge made it abundantly clear that the intent required was subjective, not objective. So, too, did the trial judge’s response (at p. 734) to the first question posed by the jury.

[3] We note, as well, in the context of his brief charge as a whole, that the trial judge made it known on no less than fourteen occasions that it was the subjective intent of the appellant that had to be the focus of their deliberations. In our view, the final question from the jury reflected a concern on its part as to whether the inference that a sane and sober person intends the natural consequences of his actions is permissive or presumptive. The trial judge’s response in repeating what he had originally told the jury made it clear that it is an inference that is permissive rather than presumptive.

[4] In all of the circumstances, while it would not have been improper for the trial judge to repeat what he had said on the recharge about the subjective/objective dichotomy, we are not persuaded that his failure to do so constituted reversible error. Reading the record as a whole, we are satisfied that the jury would have understood that in order to convict the appellant of murder, they had to be satisfied beyond a reasonable doubt that the appellant had the requisite subjective intent.

[5] As for the other grounds, we are satisfied that the trial judge’s review of the defence evidence was adequate in the circumstances.

[6] We are further of the view that a W.(D.) instruction was not mandatory in this case: see R. v. Westergard, 2004 ONCA 16356, [2004] O.J. No. 1500. This is so, particularly given the trial judge’s instructions at (p. 667) to the effect, on the crucial issue of intent, that since the evidence was circumstantial, the jury could only convict if they were satisfied “that the only rational and logical conclusion is that the accused is guilty.” While that instruction was not necessary on the issue of intent, it inured to the benefit of the appellant and leaves us without concern as to the jury’s proper understanding of the principles that give rise to the need for a W.(D.) instruction.

[7] Accordingly, the appeal is dismissed.

“R.S. Abella J.A.”

“M.J. Moldaver J.A.”

“S. Borins J.A.”