Court File and Parties

Citation: R. v. Hughes, 2007 ONCA 764 Date: 2007-11-07 Docket: C47133

Court of Appeal for Ontario MacPherson, Juriansz and LaForme JJ.A.

Between: Her Majesty the Queen (Respondent) and Robert Albert Hughes (Appellant)

Counsel: Paul Calarco for the appellant. Daniel Guttman for the respondent.

Heard: October 26, 2007

On appeal from the conviction entered on May 18, 2006 by Justice Douglas M. Belch of the Superior Court of Justice sitting with a jury.

Appeal Book Endorsement

[1] The appellant asserts that the trial judge erred by charging the jury only on self-defence under s. 34(2) of the Code; he should also have charged on s. 34(1), s. 37 and the common law defence of self-defence.

[2] We disagree. The trial judge and both counsel agreed that s. 34(2) was the appropriate section in this case. In doing this, they were doing precisely what this court said was appropriate in R. v. Pintar, [1996] O.J. No. 3451, namely, “focus the jury’s attention on the essence of the claim to self-defence and the available Code provision(s) most relevant to it.” (416)

[3] The appellant submits that the trial judge’s charge on s. 34(2) was defective by overemphasizing the objective component of the section.

[4] We disagree. The charge carefully followed the Watt standard jury charge and discussed both the subjective and objective components and properly linked them.

[5] Nor do we see any error in the manner in which the trial judge charged on sections 40 and 41 of the Code.

[6] Finally, we do not think that the trial judge’s charge misapplied Scopelliti. The trial judge admitted the complainant’s record and did so through the Crown. This is precisely what the defence wanted. Moreover, the limiting instruction, although not perfect, caused no prejudice to the appellant. There was no live issue at trial about the complainant being the aggressor. Several witnesses testified to this fact and the trial judge charged fully on this point. The complainant’s criminal record would have added nothing to this obvious point – i.e., the complainant was the aggressor.

[7] The appeal is dismissed.