Court of Appeal for Ontario

Citation: R. v. Soikie, 2007 ONCA 473 Date: 2007-06-27 Docket: C44135

Between: Her Majesty the Queen (Respondent) and Glen Soikie (Appellant)

Before: Moldaver, MacPherson and Cronk JJ.A.

Counsel: Christopher Hicks and Catriona Verner for the appellant Lorna Bolton for the respondent

Heard and released orally: June 21, 2007

On appeal from the conviction entered by Justice Todd Archibald of the Superior Court of Justice, sitting with a jury, dated April 24, 2004 and the sentence imposed June 28, 2004.

Endorsement

[1] The appellant was charged with second degree murder. Following a trial before Archibald J. and a jury, he was convicted of manslaughter and sentenced to seven years and one month after receiving credit of twenty-nine months for pre-trial custody. He appeals against conviction and sentence.

[2] At trial, the appellant’s primary defence was self defence. Secondarily, he relied on provocation and/or lack of intent to reduce the charge from murder to manslaughter. By its verdict, the jury rejected the defence of self defence but gave effect to the appellant’s secondary line of defence.

Conviction Appeal

[3] We would not give effect to the several grounds of appeal raised by the appellant.

[4] First, we reject the submission that the trial judge erred in his instructions on the interplay of self-induced intoxication and self defence under s. 34(2) of the Criminal Code. The law on this subject is set out in R. v. Reilly (1984), 15 C.C.C. (3d) 1 (S.C.C.) and this court’s decision in R. v. Nelson (1992), 71 C.C.C. (3d) 449. We do not regard the decision in R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) as dictating a different result.

[5] Second, we would not give effect to the appellant’s submission that the trial judge erred in his instruction on the first branch of s. 34(2), i.e. whether the appellant was unlawfully assaulted.

[6] While we acknowledge that it would have been preferable had the trial judge instructed the jury on the definition of assault under both s. 265(1)(a) and (b), we are satisfied that when the instructions on the first branch are read as a whole, the jury would not have been misled into thinking that s. 34(2) was unavailable if they were to find that the appellant was the one who actually struck the first blow. In this regard, we note that the trial judge told the jurors that if they believed the appellant’s version of the events or if it left them in a state of reasonable doubt, they were to acquit. Implicit in that instruction was the notion that if the deceased lunged at the appellant and the two men then started fighting, as the appellant claimed, the first branch of s. 34(2) would have been met.

[7] Furthermore, on our view of the record, it is apparent that the issue of self defence turned not on the first branch of s. 34(2) but on the second and third branches, i.e. whether the appellant reasonably believed that the deceased would kill or seriously injure him and whether in responding as he did, the appellant reasonably believed that he could not otherwise preserve himself from death or serious injury. Our view is borne out in part by the failure of experienced defence counsel to object to the trial judge’s instructions on the first branch of s. 34(2). His failure points not to inadequate representation but to an understanding, seemingly shared by all, that if the deceased lunged at the appellant as he claimed, the first branch of s. 34(2) would have been met. Our view is further supported by the question posed by the jury, which related not to the first branch of s. 34(2), but to the second and third branches.

[8] Third, we would not give effect to the appellant’s submission that the trial judge erred by failing to relate the principles of R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) to the statements made by the appellant to the police. The trial judge told the jurors that they could consider the helpful parts of the appellant’s statements, along with the balance of the evidence, in deciding whether they entertained a reasonable doubt about the appellant’s guilt. He also told the jury that in assessing the appellant’s defence of self defence, it was not a matter of weighing “the credibility of one side of the case against the other”; rather, if the jury believed the appellant’s evidence or if it left the jury in a state of reasonable doubt, it was to acquit.

[9] In sum, the jury was instructed to consider the appellant’s testimony along with those parts of his statements that were helpful to him in deciding whether it believed or had a reasonable doubt that he acted in self defence. Nothing more was required.

[10] Finally, we reject the appellant’s submission that the trial judge erred in excluding the details of an argument that apparently took place between the deceased and a waitress earlier that evening. The proposed evidence was irrelevant. It had no probative value and only served to impugn the deceased’s character. Accordingly, the trial judge correctly excluded it.

Sentence Appeal

[11] The appellant engaged in a vicious and unrelenting attack on the victim. The force used was manifestly excessive and far beyond what was required to subdue the victim, who was much smaller than the appellant. The sentence imposed is well within the range of sentences imposed in similar circumstances. We see no error in the trial judge’s analysis or conclusion.

[12] In the end, we would dismiss the appeal from conviction; we would grant leave to appeal the sentence but dismiss the appeal.

Signed: “M.J. Moldaver J.A.” “J.C. MacPherson J.A.” “E.A. Cronk J.A.”