DATE: 20061020

DOCKET: C42811

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – BRIAN DOLIVERO WRIGHT (Appellant)

BEFORE:

LASKIN, MOLDAVER and JURIANSZ JJ.A.

COUNSEL:

Crystal Tomusiak

for the appellant

Nadia Thomas

for the respondent

HEARD & ENDORSED:

October 18, 2006

On appeal from conviction by Justice Bruce C. Hawkins of the Superior Court of Justice, sitting with a jury, dated September 16, 2004 and sentence imposed November 25, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant complains that the trial judge erred in failing to give the jury a blended instruction on both self-defence and accident. We disagree. The trial judge’s charge was, if anything, favourable to the appellant. It effectively assumed that he was acting lawfully in pushing the victim away (which might otherwise be conduct amounting to an unlawful assault) and went right to the heart of the matter, i.e., did the jury believe or have a reasonable doubt that the stabbing was accidental.

[2] The trial judge is not to be faulted for the functional approach he took. In our view, it focussed the jury on the critical issue that they had to decide, i.e., was the stabbing accidental or not. We would only add that if the stabbing was purposeful, the defence of self-defence would not have been available to the appellant as it would have lacked any air of reality.

[3] We see no merit in the other grounds of appeal raised by the appellant in his factum but not pursued in oral argument. In particular, we are satisfied that the instructions made it clear to the jury that they could only convict the appellant if they were satisfied beyond a reasonable doubt that the stabbing was not accidental and that if the evidence favouring the appellant on that issue left them in a state of reasonable doubt, they were to acquit.

[4] Accordingly, the appeal from conviction is dismissed. The appeal from sentence is dismissed as abandoned.