Court of Appeal for Ontario

CITATION: R. v. Martin, 2010 ONCA 256

DATE: 20100409

DOCKET: C49126

Juriansz, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Nicholas Martin

Appellant

Counsel: V. Rondinelli, for the appellant Susan Magotiaux, for the respondent

Heard and released orally: March 30, 2010

On appeal from the conviction entered by Justice Robbie D. Gordon of the Superior Court of Justice on September 14, 2007, and the sentence imposed on March 20, 2008.

ENDORSEMENT

[1] The appellant appeals his conviction for attempted murder and the sentence imposed of 30 months imprisonment after time served.

[2] On November 24, 2006, the appellant consumed alcohol, cocaine and marijuana. Later in the evening, he was at a friend’s house when the complainant and his cousin arrived. Earlier that evening, the complainant and his cousin had been in an argument and pushing match with the appellant. Upon their arrival, the appellant took a 12 inch serrated bread knife from the kitchen and went outside to meet them. In the physical confrontation that followed, the appellant slashed the complainant on the neck, narrowly missing a major artery and causing a deep 12 centimetre wound.

[3] In oral argument, the appellant advanced two main issues. First, that the evidence could not sustain a finding of mens rea necessary to support the conviction. The appellant submitted that the evidence of the complainant and one of the other witnesses could support only the inference that the appellant had the intent to wound, and not the inference that he had the specific intent to kill.

[4] We disagree. We do not read the evidence of the complainant and the witness as the appellant exhorts us to. The complainant demonstrated to the court how he had moved, but the transcript does not contain a description of that movement. The trial judge was much better placed to understand his testimony than we are. Importantly, the trial judge also considered the appellant’s arming himself before going out to meet the complainant, the nature of the weapon with which he armed himself and the wound that the complainant suffered. The finding of the trial judge that the appellant had formed the specific intent to kill was firmly grounded in the evidence.

[5] Second, the appellant submits that the trial judge erred in concluding that the defence of self-defence was not available. He submits that the trial judge should have considered s. 37 of the Criminal Code. The defence did not rely on s. 37 at trial. In our view, such a defence would not have succeeded. It is apparent to us, as it would have been at trial, that resorting to a 12 inch bread knife in the circumstances of this case involved more force than was necessary for the appellant to defend himself against an unarmed person.

[6] The appellant also submits that the trial judge erred in his application of the defence of self-defence available under s. 34(2). He argues that the trial judge erred in arriving at his finding that the appellant did not apprehend the risk of death or grievous bodily harm.

[7] Again, we disagree. The appellant is correct that one is not required to retreat in the face of aggression and that the trial judge ought not to have referred to what the appellant failed to tell the police upon his arrest. Despite the trial judge’s comments on these matters, he found that the actions of the appellant of grabbing the knife and leaving the house in the direction of the complainant were not the actions of a person who reasonably apprehended death or grievous bodily harm. Rather, he concluded these actions were akin to the actions of one who intended to cause death or grievous bodily harm. This conclusion was firmly grounded in the evidence.

[8] The appellant advanced other grounds of appeal in his factum. We see no merit in any of them.

[9] In relation to the appeal of sentence, the appellant relied on the submissions in his factum. After considering these, we see no error in principle by the trial judge. The sentence imposed is well within the appropriate range.

[10] In the result, the appeal against conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”