R. v. Campbell, 2008 ONCA 199

CITATION: R. v. Campbell, 2008 ONCA 199

DATE: 20080320

DOCKET: C46041

COURT OF APPEAL FOR ONTARIO

SHARPE, ARMSTRONG and WATT JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

JOSEPH CAMPBELL

Appellant

Joseph Wilkinson and Philip Norton for the appellant

Christine Tier for the respondent

Heard and released orally: March 13, 2008

On appeal from the conviction entered on March 10, 2005, and the sentence imposed on May 31, 2005, by Justice C. Raymond Harris of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was tried by a jury on an indictment that contained counts of attempted murder and breach of probation. During final instructions, the trial judge withdrew the count of breach of probation from the jury’s consideration and left them to decide only whether the allegation of attempted murder had been proven beyond a reasonable doubt. The jurors found the appellant not guilty of attempted murder, but guilty of aggravated assault.

[2] At the pre-charge conference, the prosecutor, defence counsel and trial judge were of one mind that the appellant’s claim of self-defence rested exclusively on the provisions of s. 34(2) of the Criminal Code. In particular, the trial principals were unanimous that s. 34(1) did not apply.

[3] Through inadvertence, the parties’ agreement about the applicable basis of self-defence did not make its way into the final instructions. Instead of leaving self-defence to be decided under s. 34(2) as everyone had agreed, the trial judge instructed the jury on self-defence under s. 34(1), a provision that everyone agreed had no application on the evidence adduced at trial. To compound the problem, no one realized the error, thus no correction was made.

[4] With commendable frankness, Crown counsel has acknowledged that the submission of s. 34(1) to the jury as the sole basis for self-defence, rather than s. 34(2), together with a failure to draw the jury’s attention to certain evidence of importance under s. 34(2) but not under s. 34(1), constitutes legal error sufficiently serious to warrant a new trial.

[5] We agree that the only basis of self-defence for which the evidence adduced at trial afforded an air of reality was under s. 34(2). The inadvertent failure of the trial judge to instruct on that subsection left the claim of self-defence to be adjudicated on the basis of s. 34(1) for which the evidence furnished no air of reality. The appellant was entitled to but did not obtain an adjudication of his claim of self-defence upon a proper legal basis.

[6] In the result, we would allow the appeal from, and set aside the conviction for, aggravated assault. In the absence of an appeal from the appellant’s acquittal of attempted murder, the new trial will be held on a charge of aggravated assault.

[7] The appellant further says that his conviction of breach of probation is fatally flawed because it was entered after the jury had returned its verdict on the main count, attempted murder, and was recorded by the trial judge himself, not by the jury as it should have been.

[8] The appellant was arraigned on two counts in an indictment, attempted murder and breach of probation. A jury was selected and the appellant given into their charge on both counts. Apart from some trial event that took the appellant out of the jury’s charge, for example a change of plea or entry of a stay of proceedings by the prosecutor under s. 579(1) of the Criminal Code on the breach of probation count, or declaration of a mistrial, the appellant was entitled to the jury’s verdict on the breach of probation count every bit as much as he was entitled to their decision on the count of attempted murder. Despite the concurrence of counsel to the procedure adopted in default of other procedural steps not taken here, the trial judge had no authority to take the second count away from the jury and later to record a conviction for breach of probation as the trier of fact.

[9] It may be open to debate whether what occurred here was a procedural irregularity forgiven, in the absence of prejudice, by s. 686(1)(b)(iv) of the Criminal Code. But Crown counsel does not seek to sustain the conviction for breach of probation in the circumstances, whether through the invocation of the procedural proviso or otherwise. The conviction for breach of probation was made without jurisdiction.

[10] The appeal from conviction for breach of probation is allowed, the conviction set aside and a new trial ordered.

“Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”

“David Watt J.A.”