Her Majesty the Queen v. Lessey

[Indexed as: R. v. Lessey]

80 O.R. (3d) 181

Court of Appeal for Ontario,

Rosenberg, Goudge and Feldman JJ.A.

April 18, 2006

Criminal law -- Charge to jury -- Defences -- Accident -- Accused convicted of second degree murder -- Accused admitting he planned to rob deceased and stabbed him causing death -- Accused alleging he drew knife in self-defence during melee during robbery and accidentally stabbed deceased -- Jury not given definition of accident -- Accused arguing jury might have thought accident only applying if result of chance or unexpected result as opposed to accused's defence lacked intent to stab deceased -- Jury would not have misunderstood nature of accused's defence -- Appeal from conviction dismissed.

Criminal law -- Charge to jury -- Manslaughter -- Unlawful act manslaughter -- Accused convicted of second degree murder after fatal stabbing while robbing deceased -- Accused admitted intending to assault and rob deceased but claiming he drew knife in self-defence and stabbing accidental -- At trial both counsel asking trial judge not to leave unlawful act manslaughter and trial judge accepting position -- On appeal accused arguing trial judge erring by failing to instruct jury regarding unlawful act manslaughter -- Jury instructed that if found accused did not have intent for murder but they rejected defences of accident and self-defence accused should be acquitted -- Instruction duly favourable -- Jury should have been told even accidental stabbing during robbery rendered accused guilty of manslaughter -- Even if trial judge erred in failing to leave unlawful act manslaughter error causing no prejudice -- Appeal from conviction dismissed.

Criminal law -- Charge to jury -- Murder -- Intent -- Recklessness -- Trial judge providing brief plain language explanation of recklessness [page182] -- In isolation jury could have misunderstood words as summary of intent required for murder but charge elsewhere providing appropriate direction and decision tree contained correct description of intent -- No prejudice to accused -- Appeal from conviction dismissed.

The accused stabbed the deceased while they were engaged in an altercation in the back seat of a car. The accused admitted that he entered the vehicle for the purpose of assaulting and robbing the deceased, but claimed that he drew his knife in self-defence and that he accidentally stabbed the deceased in the course of the ensuing melee. The accused was convicted of second degree murder. He appealed.

Held, the appeal should be dismissed.

The trial judge did not err in failing to define "accident" for the jury. When discussing the defence of accident, he instructed the jury that the accused's defence was that "he did not mean to cause the death" of the deceased, and that they had to acquit if what happened to the deceased was an accident. He did not give the jury a dictionary definition of accident limited to the unexpected, the unforeseen or chance, and the jury would have understood that the accused's accident defence was that he did not intend to stab the deceased.

The trial judge did not err in failing to leave unlawful act manslaughter to the jury as a possible verdict on the theory that the accused's initial production of the knife was unlawful but that the stabbing was accidental. In the pre-charge discussion, he expressly raised the possibility of this route to a manslaughter verdict, but was dissuaded from doing so by both counsel. Ultimately, he instructed the jury that if they found that the accused accidentally caused the death of the deceased, the accused had to be acquitted. That instruction was favourable to the accused. This was not a case in which an included offence was not left to the jury, so that they had no alternative to a murder conviction other than the unpalatable choice of acquittal. The trial judge instructed the jury that if they rejected the defences of self-defence and accident but found that the accused did not have the intent for murder, he should be convicted of manslaughter.

In the course of instructing the jury on the intent required for murder under s. 229(a)(ii) of the Criminal Code, the trial judge stated that the Crown was required to prove that the accused meant either to kill the deceased or to cause him bodily harm such that he knew was likely to kill the accused and was reckless whether the deceased died or not, and then added "That is to say, he saw the risk that [the deceased] could die from the injury and went ahead anyway and took the chance." Standing on its own, that addition was unfortunate. However, this was the only occasion on which this language was used; elsewhere, the trial judge correctly paraphrased s. 229(a)(ii). More importantly, in the typed decision tree which the jurors had with them during their deliberations, the intent for murder under s. 229(a) was correctly described. The language used by the trial judge caused no prejudice to the accused.

APPEAL from a conviction by Gans J. of the Superior Court of Justice, dated June 15, 2004, for second degree murder.

Cases referred to R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 190 O.A.C. 1, 189 C.C.C. (3d) 199, 24 C.R. (6th) 152 (C.A.), distd Other cases referred to R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516, [1994] S.C.J. No. 86, 20 O.R. (3d) 63n, 179 N.R. 1, 93 C.C.C. (3d) 99, 34 C.R. (4th) 22; R. v. Stevenson, 1990 2594 (ON CA), [1990] O.J. No. 1657, 41 O.A.C. 1, 58 C.C.C. (3d) 464 (C.A.); R. v. Tennant (1975), 1975 605 (ON CA), 7 O.R. (2d) 687, 23 C.C.C. (2d) 80, 31 C.R.N.S. 1 (C.A.) [page183] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 229(a)

Russell Silverstein, for appellant. Jamie Klukach, for respondent.

[1] BY THE COURT: -- The appellant appeals from his conviction for second degree murder following a trial before Gans J. and a jury. There was no dispute at trial that the appellant fatally stabbed the deceased while they were engaged in an altercation in the back seat of a motor vehicle. The appellant's defences were accident and self-defence. While the appellant admitted that he entered the vehicle for the purpose of assaulting and robbing the deceased, he claimed that he drew his knife in self-defence and that he accidentally stabbed the deceased in the course of the ensuing melee.

[2] In his very able submissions, Mr. Silverstein has raised a number of issues concerning the adequacy of the trial judge's legal instructions to the jury. He also argues that the verdict is unreasonable and that this court should substitute a conviction for manslaughter. For the following reasons, we would not give effect to any of these grounds of appeal and, accordingly, the appeal is dismissed.

[3] Before dealing specifically with the grounds of appeal, we note that the appellant's counsel at trial (not Mr. Silverstein) raised no objections to the charge to the jury. Further, the trial judge conducted a lengthy pre-charge discussion with counsel and the charge to the jury was very much a product of those discussions.

Definition of Accident

[4] The appellant submits that the trial judge erred in failing to define "accident" for the jury. He submits that in the absence of a definition, the jury may have thought that the defence of accident was limited to a chance or unforeseen happening and could not include a stabbing that occurred in a situation of which the accused was the architect. He argues that in the context of this case, accident meant nothing more than that the appellant lacked the intention to stab the victim. Thus, if the jury applied a test of chance or unforeseen happening they would not fairly consider the defence, given that the appellant admitted that he initially assaulted the deceased, attempted to rob him and [page184] intentionally produced a knife. The appellant relies upon this court's decision in R. v. Stevenson, 1990 2594 (ON CA), [1990] O.J. No. 1657, 58 C.C.C. (3d) 464 (C.A.), at pp. 485-86 C.C.C.

[5] In our view, the jury would not have been misled about the meaning of accident in the context of this case. When discussing the defence of accident, the trial judge instructed the jury that the appellant's defence was that "he did not mean to cause the death of [the deceased]" and that they must acquit if what happened to the deceased, including the stabbing, was an accident. Unlike Stevenson, the trial judge did not give the jury a dictionary definition of accident limited to the unexpected, the unforeseen or chance. The jury would necessarily understand that the appellant's accident defence was, as he testified, that he did not intend to stab the deceased.

Unlawful Act Manslaughter

[6] The appellant submits that the trial judge erred in failing to leave unlawful act manslaughter to the jury as a possible verdict on the theory that the appellant's initial production of the knife was unlawful but that the subsequent stabbing was accidental. In the pre-charge discussion, the trial judge expressly raised the possibility of this route to a manslaughter verdict, but was dissuaded from doing so by both counsel. Among other things, Crown counsel said the following:

I don't think we need to get into issues of the lawfulness of the taking of the knife initially. I think it's [a] clean issue of he's saying he had the knife and he's not trying to hurt this guy, it's an accident in the common sense way, and I think it can be left with the jury that simply.

[7] Defence counsel agreed and added:

I just tend to agree with [Crown counsel]. This is importing things into the case that really aren't realistic on the facts. I mean, if they find he's pulling out the knife to do harm in circumstances that don't even amount to self-defence, they're not even going to look at accident.

[8] The charge that was ultimately given enured to the benefit of the appellant. The jury was instructed that if they found that the appellant accidentally caused the death of the deceased, the appellant must be acquitted. In fact, this instruction was unduly favourable to the appellant since properly speaking, if the death was caused accidentally in the course of an unlawful act, the appellant was at least guilty of manslaughter. See R. v. Tennant (1975), 1975 605 (ON CA), 7 O.R. (2d) 687, 23 C.C.C. (2d) 80 (C.A.), at p. 703 O.R., p. 96 C.C.C.

[9] In our view, the decisions of this court and the Supreme Court of Canada in R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516, [1994] S.C.J. No. 86, 93 C.C.C. (3d) 99 apply. [page185] As Sopinka J. said on behalf of the Supreme Court at p. 517 S.C.R., p. 107 C.C.C.:

In cases in which an included offence is not left with the jury, a conviction by the jury of the more serious offence cannot generally be relied on by reason of the fact that it may very well be a reaction against a complete acquittal. There is an apprehension that the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable. In this case, the jury had an alternative: they could have convicted of manslaughter. It cannot be said that it did not do so by reason of the failure to charge them by reference to the objective standard of liability with respect to manslaughter.

(Emphasis added)

[10] In this case, the jury was given the alternative verdict of manslaughter by another route. After dealing with accident and self-defence, the trial judge instructed the jury that if they rejected those defences but found that the appellant did not have the intent for murder he should be convicted of manslaughter. The choice by counsel for the appellant not to ask for an unlawful act manslaughter direction on the theory that the appellant's initial taking up of the knife was unlawful was a tactical decision. As explained above, the appellant received a more favourable direction than he was strictly speaking entitled to. It was open to the trial judge to accept counsel's view that it was unrealistic to think the jury would reach a manslaughter verdict through the path now suggested on appeal. If the jury determined that the initial brandishing of the knife was unlawful, it is extremely unlikely that the stabbing a few seconds later would be found accidental. Thus, if there was an error, it did not result in any substantial wrong or miscarriage of justice.

The Direction on Intent for Murder

[11] The appellant submits that the trial judge misdirected the jury with respect to the intent for murder under s. 229(a) (ii) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge directed the jury, in part, as follows:

For an unlawful killing to be murder, Crown counsel must prove beyond a reasonable doubt, that Mr. Lessey meant either to kill [the deceased] or meant to cause him bodily harm such that he knew was likely to kill [the deceased] and was reckless whether [the deceased] died or not. That is to say, he saw the risk that [the deceased] could die from the injury and went ahead anyway and took the chance.

(Emphasis added)

[12] The appellant submits that in the italicized portion the trial judge has diminished the intent required for murder. Standing on its own, this direction is unfortunate. While it would seem that the trial judge was merely attempting to give the jury a [page186] plain language definition of the meaning of reckless, there is the risk that the jury would understand the direction as a summary of the intent defined in s. 229(a) (ii). However, this is the only occasion on which this language was used. A short time later, when describing the theory of the Crown as it applied to murder under s. 229(a) (ii), the trial judge correctly paraphrased the section. More importantly, in the typed decision tree that was handed to the jury and which the jurors had with them during their deliberations, the intent for murder under s. 229(a) was correctly described. Accordingly, while the language used by the trial judge should be avoided, we are satisfied that it caused no prejudice to the appellant in this case. This is not a case like R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.) where the trial judge misdirected the jury in two different respects as to the intent for murder and repeated that misdirection in answer to a question from the jury.

[13] We are also satisfied that the usual direction to the jury concerning the normal inference that may be drawn as to foresight of consequences from the conduct of a sane or sober person was not inappropriate and caused no prejudice to the appellant. Once the jury rejected the defences of accident and self-defence and thus found that the appellant unlawfully and intentionally stabbed the deceased in the chest, the inference that the appellant intended to kill was a reasonable one. The trial judge also emphasized that this was not an inference the jurors were required to draw.

The Decision Tree

[14] The appellant also complains about the decision tree diagram. We agree with counsel that the diagram is, in some respects, complex. However, the decision tree was drawn up in consultation with counsel and defence counsel at trial was satisfied with the result. The form in which the diagram was presented did not prejudice the appellant.

Unreasonable Verdict

[15] Finally, we are satisfied that the verdict of murder is not unreasonable. The jury was entitled to reject the defences of accident and self-defence. The forensic evidence shows that the deceased suffered six stab wounds, one of which, the wound to the chest, was fatal. Some of the wounds were defensive. The appellant, on the other hand, suffered no injuries. There was no suggestion that the appellant was under the influence of alcohol or drugs. As indicated, the appellant admitted that he entered [page187] the vehicle to assault the deceased and attempt[ed] to steal drugs from him. He admitted that he produced the knife. Given those circumstances, the nature of the fatal wound, and the evidence of the appellant's relationship with the deceased, it was open to the jury to infer that the appellant intended to kill the deceased when he stabbed him in the chest.

Disposition

[16] Accordingly, the appeal is dismissed. We repeat what we said at the conclusion of the oral hearing in this matter, we are grateful for the very helpful submissions from both Mr. Silverstein and Ms. Klukach.

Appeal dismissed.