CITATION: R. v. Walent, 2007 ONCA 871
DATE: 20071214
DOCKET: C43834
COURT OF APPEAL FOR ONTARIO
DOHERTY, MOLDAVER and EPSTEIN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
BRETT ALLAN DAVID WALENT
Appellant
Marie Henein and Margaret Bojanowska for the appellant
David Finley for the respondent
Heard and orally released: December 5, 2007
On appeal from the conviction entered by Justice Robert J. Abbey, sitting with a jury, of the Superior Court of Justice dated December 17, 2004 and the sentence imposed on March 31, 2005.
ENDORSEMENT
[1] The appellant was charged with second degree murder. He entered a plea to the charge of manslaughter, but that plea was not accepted by the Crown and the trial proceeded. The appellant testified and advanced essentially two defences. First, he argued that the Crown had not proved the requisite mens rea and, second, he advanced the statutory partial defence of provocation. The jury convicted and the trial judge imposed the mandatory sentence of life imprisonment. He also imposed a fourteen year parole ineligibility period.
[2] Counsel for the appellant has very ably advanced several grounds of appeal, all of which relate to the charge to the jury. Counsel has also made submissions with respect to the fitness of the parole ineligibility period.
[3] We would not give effect to any of those arguments.
The Conviction Appeal
[4] The appellant argues that the instruction on intoxication as it relates to the mens rea required for murder was inadequate. There is no doubt that intoxication was at play in this case. On the evidence the appellant had consumed a considerable amount of crack cocaine throughout the day of the homicide and had also been drinking heavily.
[5] The first submission relates to the trial judge’s failure to instruct the jury separately on the issue of whether the appellant had the capacity to form the requisite intent. The trial judge could have given a separate instruction on the question of whether the appellant had the capacity to form the intent required under s. 229. Instead, he instructed the jury exclusively in terms of whether the Crown had proved beyond a reasonable doubt that the appellant in fact had the requisite intent.
[6] The trial judge was not asked by counsel at trial to instruct the jury in terms of capacity. This is of some added significance because the trial judge conducted an elaborate pre-trial conference in which all matters, including this matter, were discussed in some detail.
[7] While a capacity instruction could have been given, we are satisfied that the jury understood the crucial question insofar as this issue was concerned, that is whether the Crown had proved the requisite intent. We are also satisfied that the jury could not have helped but understand that the defence position was that by virtue of the intoxication, the appellant did not have the necessary intent.
[8] The second submission relating to the instruction on intoxication concerns the foreseeability component of the mens rea requirement in s. 229. Counsel submits the trial judge did not relate the evidence of intoxication to that issue. The trial judge gave a careful “rolled up” instruction in his charge. In our view, that instruction clearly and fully related all of the evidence, including the evidence of intoxication, to the question of foreseeability arising out of the mens rea component of s. 229. The charge was adequate.
[9] The second ground of appeal relates to the trial judge’s instruction to the jury that certain after-the-fact conduct was relevant to their consideration of whether the appellant had the requisite intent for murder. The trial judge told the jury that various acts performed by the appellant immediately after the homicide and moving forward to several hours after the homicide were potentially relevant in assessing the appellant’s level of intoxication at the time of the homicide.
[10] Counsel for the appellant concedes that some of the after-the-fact conduct was relevant to the mens rea issue and was properly left to the jury. Counsel goes on to argue, however, that some of the conduct was so far removed in time from the homicide that it could not logically be of any assistance to the jury on the question of whether the appellant had the requisite intent.
[11] The trial judge reviewed the after-the-fact conduct in some detail and made it clear to the jury that the evidence “may or may not” help them on the question of intent. In our view, the jury would clearly understand that as the conduct became more removed in time from the homicide, it would be of less assistance to them in determining the appellant’s state of mind at the time of the homicide. There was no need for the trial judge to go further and actually remove some of this evidence from the consideration of the jury. The jury would apply their common sense to the evidence and understand the significance of the passage of time to the relevance of the evidence on the issue of whether the appellant had the requisite mens rea.
[12] The third issue arises out of the provocation instruction. The trial judge did not mention the after-the-fact conduct in the course of the provocation instruction. Counsel for the appellant argues that the trial judge should have specifically told the jury that the evidence of the after-the-fact conduct had no relevance to the provocation issues.
[13] Assuming the appellant’s after-the-fact conduct was irrelevant to the provocation defence, we are satisfied that the trial judge effectively told the jury that they could not consider this evidence when addressing the provocation defence. On at least two occasions when instructing the jury on the issue of intent, the trial judge told the jury that the appellant’s after-the-fact conduct was relevant only to the issue of intent. In our view, this amounts to an instruction that the evidence was irrelevant on all other issues, including provocation.
[14] The fourth ground of appeal alleges that the trial judge implicitly withdrew from the jury its right to disagree and return no verdict. We do not read the instruction in that way. Near the end of the instruction, the trial judge told the jury:
As I have already said to you, the verdict which you return must be a unanimous verdict. All of you must agree upon that verdict that you see fit to return. That of course does not mean that you do not have the right to disagree.
As I have also said to you, although the verdict which you return must be unanimous, you may take different routes to arrive at that unanimous verdict. [Emphasis added.]
If you reach a verdict …
[15] In our view, the jury would understand from this instruction that they were not required to return a verdict and could disagree as to the verdict.
[16] The conviction appeal fails.
The Sentence Appeal
[17] With respect to the parole ineligibility period, counsel does not contend that the trial judge made any error in principle. The trial judge’s reasons for sentence are carefully crafted and, in our view, reflect a full appreciation and analysis of the relevant considerations.
[18] Counsel does argue with some force that the period of parole ineligibility, fourteen years, is simply too long and beyond what could be considered a reasonable sentence in the circumstances of this case. No doubt, different judges may have imposed a somewhat lower period of parole ineligibility. There is some reason to be sympathetic towards this appellant and some reason to hope that at some point he may become a productive member in the community. However, we cannot say that the period of parole ineligibility imposed is clearly unreasonable. Consequently, we cannot interfere. The appeal from the period of parole ineligibility is dismissed.
“Doherty J.A.”
“M.J. Moldaver J.A.”
“Epstein J.A.”