R. v. Peltier, 2008 ONCA 276

CITATION: R. v. Peltier, 2008 ONCA 276

DATE: 20080415

DOCKET: C46867

COURT OF APPEAL FOR ONTARIO

DOHERTY, MOLDAVER and CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ADAM PELTIER

Appellant

Counsel: Delmar Doucette and Daniel Santoro for the appellant Craig Harper for the respondent

Heard: April 2, 2008

On appeal from the conviction entered by a jury, presided over by Justice Steven Rogin, of the Superior Court of Justice, dated October 6, 2006 and the sentence imposed on November 22, 2006.

ENDORSEMENT

[1] The appellant was charged with second degree murder and attempted murder. Both charges arose out of an incident that occurred at the appellant’s home in the late evening hours of April 25, 2005. Jason Joyce and Michael Kane went to the appellant’s home in Windsor, Ontario in search of drugs. The appellant was a drug dealer. A dispute broke out on the landing of the elevated deck leading to the door of the appellant’s home. The appellant shot and killed Joyce. The Crown contended that he also shot at, but missed, Kane. The appellant did not testify at trial. Through counsel, he argued that he shot Joyce in self-defence. He also contended that he did not intend to kill Kane and that in any event he acted in self-defence when he fired a shot in Kane’s direction.

[2] The jury could not reach a verdict on the murder charge but convicted the appellant on the attempted murder charge. He appeals his conviction and sentence. The appellant’s re-trial on the murder charge is scheduled to begin next month.

[3] On this appeal, counsel concedes that the jury must have concluded that the appellant intended to kill Kane. He accepts that the finding of intent to kill is untainted by any of the alleged errors in the trial judge’s instructions and must be accepted for the purpose of his arguments on appeal. Counsel further accepts that assuming the appellant intended to kill Kane, s. 37 of the Criminal Code provides the only statutory basis for the self-defence claim.

[4] We agree that the jury must have been satisfied that the appellant intended to kill Kane and that his self-defence claim stands or falls on s. 37. We also agree with counsel’s submissions that the self-defence instruction on attempted murder was inadequate and necessitates the quashing of the conviction. Given that result, we do not propose to review the evidence in detail.

[5] Before Kane and Joyce went to the appellant’s home in search of drugs, Joyce and the appellant had a heated conversation on the telephone. When Kane and Joyce arrived at the appellant’s home, he refused to let them in. Joyce was standing at the door and Kane was standing off to one side apparently out of the appellant’s sightlines. Joyce and the appellant argued at the door. Joyce was a very large man who was quite capable of acts of violence. He had a criminal record. When Joyce tried to gain entry to the appellant’s home, the appellant retrieved a baseball bat. Joyce made it clear that a baseball bat would not stop him from entering the home. He continued to try to kick the door down. The appellant then retrieved a gun. Joyce saw the gun and made a derisive comment towards the appellant. He continued to kick at the door, eventually breaking the deadbolt and forcing the door open. After the door opened, the appellant fired one shot striking Joyce in the chest. Joyce turned towards Kane, said something and fell to the floor on the landing just outside the door. This wound was fatal according to the medical testimony.

[6] Seconds after Joyce was shot, Kane emerged from behind the door with a golf club in his hand. He was on the landing approximately ten feet away from the appellant. The appellant fired a second shot. According to Kane, he had started away from the door towards the stairs when the appellant fired the second shot. After Kane had fled down the stairs, the appellant fired three more shots into Joyce who was lying on the landing.

[7] Assuming, as we must given the jury’s verdict, that the appellant fired at Kane intending to kill him, we are satisfied that there was an evidentiary basis for the defence of self-defence as it applied to the attempted murder charge. The events between the firing of the first shot and the firing of the second shot occurred very quickly in a confined space, in chaotic circumstances and in relatively bad lighting. Despite Kane’s evidence that he had headed down the stairs before the shot was fired, a jury could reasonably conclude that the appellant reasonably perceived that Kane was a party to Joyce’s efforts to forcibly gain entry to his house. The jury could further conclude that the appellant reasonably perceived that Kane, who standing about ten feet away from him with a golf club in his hand, posed an immediate threat to cause grievous bodily harm to the appellant in the seconds immediately after the appellant shot Joyce. If the jury took this view of the evidence or had a reasonable doubt on these issues, the defence of self-defence as set out in s. 37 of the Criminal Code could be available to the appellant.

[8] In concluding that there was an air of reality to the appellant’s self-defence claim as it applied to the attempted murder charge, we note that Crown counsel at trial did not suggest otherwise either in the pre-charge discussions or by way of objection to the trial judge’s instructions to the jury. In those instructions, the trial judge left self-defence as an available defence to the attempted murder charge.

[9] The trial judge dealt at some length with the defence of self-defence as it applied to the murder charge. He made it clear to the jury that the defence was available even if the jury was satisfied that the appellant had the requisite intent for murder. He effectively told the jury that an intentional killing was unlawful and therefore murder only if the Crown negated the defence of self-defence. These instructions were embodied in a “decision tree” that the jury took into their deliberations.

[10] Counsel on appeal have carefully taken us through the relevant passages from the trial judge’s instructions referable to the attempt murder charge (transcript vol. 15, pp. 76-83). Unlike the murder charge, the trial judge did not deal separately with the application of the elements of self-defence to the charge of attempt murder. We agree with counsel for the appellant’s submission that several passages in the instruction conflate the distinct issues of intent and self-defence as they relate to the attempt murder charge.

[11] In parts of the trial judge’s instruction, he expressly told the jury that it had to convict the appellant on the attempt murder charge if the Crown had proved that he intended to kill Kane. For example, the trial judge said:

The fact that he missed Mr. Kane, that is up to you to decide. As long as you decide beyond a reasonable doubt that he attempted to kill him and he intended to kill him, you must convict of attempted murder with respect to Mr. Kane. If he attempted to shoot him but did not intend to kill him, then he is not guilty of attempted murder. [Emphasis added.]

[12] Other passages of the instructions do indicate that the defence of self-defence remains a live issue even if the appellant intended to kill Kane. Unfortunately, these passages do not explain how the defence of self-defence applies should the jury be satisfied that the appellant intended to kill Kane. For example, the trial judge said:

If you can say beyond a reasonable doubt that he intended to kill Mr. Kane and missed, as opposed to a warning shot, or scaring him off, or wounding him, if you can say that, then you can convict of attempted murder. And you will look at all of the evidence and on that evidence when you talk about self-defence, self-defence enters into it. You may have different considerations with self-defence with respect to Mr. Kane. [Emphasis added.]

[13] We appreciate, as stressed by Crown counsel, that the trial judge’s instructions must be considered as a whole. Certainly, the passages quoted above cannot be considered in isolation. They do, however, fairly reflect the confusion created by the instructions on the defence of self-defence as it applied to attempt murder. Nowhere in those instructions did the trial judge make it clear to the jury how the defence of self-defence could be applied if the jury was satisfied that the appellant intended to kill Kane. We are satisfied that the jury may well have been left either with the impression that self-defence was only relevant as part of the assessment of the appellant’s state of mind, or was entirely irrelevant if the jury was satisfied that the appellant had the necessary intent to kill. Either impression is wrong in law and would have seriously prejudiced the appellant’s defence on the attempt murder charge.

[14] The attempt murder “decision tree” could only have exacerbated the confusion created by the instructions. Unlike the murder “decision tree”, the attempt murder “decision tree” does not present self-defence as a distinct issue that had to be addressed by the jury.

[15] The conviction cannot stand.

[16] During argument of this appeal, counsel for the Crown asked this court to provide whatever guidance it could to the trial judge, should this court order a new trial. The difficulties inherent in self-defence instructions are well known. We are anxious to provide whatever assistance we can to the judge who will preside over the new trial. However, the self-defence instructions that should be provided in any given case depend on the entirety of the evidence and, to a lesser extent, the positions taken by the parties at trial. There is no guarantee that the evidence on the re-trial will be the same as the evidence heard at the first trial. Consequently, it can be unhelpful, if not downright dangerous, for this court to try to anticipate what self-defence instructions should be given on the re-trial.

[17] In the hope, however, that it may be of some assistance on the retrial, and assuming there are no material differences in the evidence heard on the re-trial, we make the following observations. These observations apply to the application of the self-defence provisions to the murder and attempt murder charges. If instructions on included offences are necessary, those instructions may raise their own self-defence issues:

• If the jury is satisfied beyond a reasonable doubt that the appellant shot at Kane intending to kill him, s. 37 of the Criminal Code is the only statutory provision in respect of the defence of self-defence that has any application on the attempt murder charge;

• Section 34(2) and s. 37 are potentially applicable on the murder charge. Whether both sections should be put to the jury depends on whether the defences as described in those sections completely overlap on the evidence adduced in the case. If the overlap is complete, there is no need to put both sections;

• There is no need for a separate instruction under s. 37 of the Criminal Code based on the theory that the appellant was acting to protect his girlfriend who was in the house with him;

• Section 41, the defence of property provision, cannot excuse an intentional killing or an attempt to kill. In any event, the defence of property described in s. 41, is on the evidence heard at the trial, subsumed in the appellant’s self-defence claims. There was no need for a separate s. 41 instruction.

[18] The appeal is allowed, the conviction is quashed and a new trial is ordered.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“E.A. Cronk J.A.”