R. v. Onigbinde, 2010 ONCA 56

CITATION: R. v. Onigbinde, 2010 ONCA 56

DATE: 20100125

DOCKET: C42976

COURT OF APPEAL FOR ONTARIO

Moldaver, Armstrong and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Olarenwju Onigbinde

Appellant

Timothy E. Breen and Diana Lumba, for the appellant

Susan G. Ficek, for the respondent

Heard: October 6, 2009

On appeal from the conviction for second degree murder entered by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury, on April 30, 2004.

Armstrong J.A.:

INTRODUCTION

[1] On a hot August night in 2002, a dispute arose between two groups of young men over the theft of a young man’s gold chain. In the resulting clash between the two groups, one young man was stabbed twice in the chest by the appellant. He died shortly thereafter. The appellant was tried on a charge of second degree murder before Justice Faye McWatt and a jury. The appellant raised the defence of self-defence. The appellant was found guilty as charged on April 30, 2004. On June 30, 2004, he was sentenced to life imprisonment with parole ineligibility of 12 years. He now appeals his conviction on a number of grounds.

[2] As I would allow the appeal and order a new trial, I will restrict my review of the evidence to that which is necessary to dispose of the issues in the appeal.

BACKGROUND

[3] On August 13, 2002, Azmal Hossain, Haines Jones and two young women went to Dentonia Park in Scarborough where they met with a group of Jones’s friends. They next went to a liquor store and then to a nearby apartment complex at Teesdale Place where the two young women lived. Jones left briefly to speak to someone he knew. As Hossain waited for Jones to return, he was approached by the appellant and another young man. The appellant asked Hossain what he was doing. Hossain replied that he was waiting for someone. Hossain was told to “get out of here”. When the two young men returned to find that Hossain was still there, the appellant tore a gold chain from Hossain’s neck. Hossain returned to Dentonia Park and sought help from Muhunthan Kulasingham (the “deceased”) and a number of Jones’s other friends to help him retrieve his gold chain. The deceased and his friends often frequented Dentonia Park to drink and socialize. They formed a group and headed for the apartment complex in Teesdale Place in search of the gold chain.

[4] It was dusk when Hossain and the deceased, backed up by the rest of the group, proceeded up the driveway at 40 Teesdale Place towards the adjacent basketball court. There, the deceased confronted the appellant. The eyewitness accounts at trial as to what happened next varied widely. No purpose would be served by summarizing each of these accounts.

[5] There was evidence that the appellant was part of another group of young men who supported him when he faced off against the group led by the deceased and Hossain. Some of them were said to have thrown beer bottles from the roof of the parking garage at the top of the driveway.

[6] The appellant testified. He acknowledged that he had stolen the gold chain from Hossain. He said that the deceased’s group had approached him. Hossain stated that he didn’t want any problems. The appellant replied that it didn’t look like they had come to talk and reached for a beer bottle in the deceased’s pocket. When the appellant grabbed the bottle, the deceased slapped the appellant’s hand. The bottle fell from the deceased’s pocket and broke on the ground. The deceased then shoved the appellant backward and threw the bottle that he was drinking from at the appellant, striking him in the ribs. According to the appellant, the deceased then pulled out another bottle from his pocket and, with the bottle raised, charged at the appellant. The appellant testified that he believed that the deceased intended to strike him over the head with the beer bottle. As the deceased moved forward, the appellant pulled his knife from his back pocket, opened the blade, ducked and stabbed the deceased in the side. The appellant acknowledged that he must have stabbed the deceased twice but maintained that it only felt like he had done so once. The appellant testified that this confrontation occurred at the top of the driveway in front of the parking garage. The appellant testified that he was scared and acted in self-defence as he believed he would be badly injured.

[7] Hossain testified that as he walked up the driveway, he was approached by the same two young men who had taken his gold chain. Hossain claims that he said, “Well I don’t want no trouble. I just want my chain back.” The appellant pulled a knife from behind his back and moved towards him. When Hossain turned to run, he saw the deceased and said to him, “Let’s go, don’t worry about it.” Hossain ran to the sidewalk and stopped. He then turned and saw the deceased fall on the grass adjacent to the driveway.

[8] A major issue in the trial was the exact location where the stabbing took place. The appellant and other witnesses said the altercation took place at the top of the drive-way near the entrance to the parking garage. In support of this position, the appellant relied on the police evidence concerning broken beer bottles and staining in that area.

[9] The Crown’s position was that the appellant was the aggressor, and that the deceased and his group were not looking for a fight but simply were seeking the return of the gold chain. The Crown alleged that the appellant advanced upon and attacked the deceased further down the driveway, 38 feet from the area where the broken beer bottles were found. In support of this position, the Crown relied on evidence that the deceased only took two steps before collapsing on the grass adjacent to the driveway. The Crown argued that it would be impossible for the deceased to cover 38 feet in two steps. On this factual theory, the Crown asserted that the defence of self-defence was severely undermined.

[10] The evidence of the pathologist, Dr. Toby Rose, was central to the issue of the deceased’s capacity to move after the stabbing. Dr. Rose carried out a post-mortem examination of the deceased. She found no indication of defensive injuries. She observed two stab wounds to the chest: one penetrated the left ventricle of the heart; the second penetrated the upper lobe of the left lung. In her opinion, without immediate surgery, the stab wound to the heart would cause death. In respect of the deceased’s mobility immediately after suffering the stab wounds, she testified as follows:

Q. Now, when we talk about being fatal, either one of those injuries, would the individual have immediately collapsed dead?

A. No, I don’t expect so.

Q. All right. Would the individual be able to sort of walk a few feet and then maybe collapse or not?

A. I would expect – I should say that if you want a lot of information like this, it’s a little bit out of my area of expertise, but I can certainly say that he would be expected to be able to at least walk a few feet before collapsing.

The trial judge summarized Dr. Rose’s answer to the jury as follows: “The doctor testified that it was quite possible for Mr. Kulasingham to walk a few feet without collapsing having suffered these injuries.”

THE APPLICATION TO ADMIT FRESH EVIDENCE

[11] Counsel for the appellant seeks to enter as fresh evidence an affidavit from Dr. Rose in which she provides a further elaboration on the potential mobility of the deceased before collapsing. Paragraphs 3 and 4 of the affidavit state:

Forensic pathology literature indicates that the length of survival and mobility of individuals after suffering similar injuries is very variable. There are case reports where individuals having suffered injury to the left ventricle “ran 100 meters” and “walked one city block”. We have very little understanding of the factors that might allow an individual to be active after such an injury.

At trial I testified that I expected that the deceased would be able to “at least walk a few feet before collapsing”. I was not asked to explain or expand upon this answer. I did not mean to suggest that “a few feet” was the maximum distance that Mr. Kulasingham could travel before collapsing. In light of the forensic literature noted above, I think it is possible that Mr. Kulasingham would have been capable of walking, or running, a distance greater than a few feet. It is not possible, however, to determine what the maximum distance would be.

[12] Counsel for the appellant submits that “the proposed fresh evidence from Dr. Rose removes any uncertainty on this issue and refutes the prosecution argument that the deceased would have been unable to travel from the area in front of the parking garage before collapsing.”

[13] I find it unnecessary to admit the fresh evidence in order to decide this appeal. As I conclude below, in my view, the trial judge erred in her charge to the jury in respect of Dr. Rose’s evidence. The existing record is sufficient for this ground of appeal to form one of the bases for allowing the appeal and ordering a new trial.

THE APPEAL

[14] The appellant raises the following grounds of appeal:

(i) the trial judge erred in failing to provide the jury with an accurate summary of the evidence from the pathologist.

(ii) the trial judge erred in her instructions to the jury on the defence of self-defence.

(iii) the trial judge erred in her treatment of the evidence of Peter Shanmuganathan.

(iv) the trial judge erred in excluding the evidence of the deceased’s reputation and prior discreditable conduct.

(v) the trial judge erred in ruling that no adverse inference could be drawn from the failure of the prosecution to call Thangavel Manoharasivam.

(i) Did the trial judge err in failing to provide the jury with an accurate summary of the evidence from the pathologist?

[15] It was central to the Crown’s case that the stabbing took place 38 feet from the point where the appellant testified that he was confronted by the deceased. As indicated above, the Crown relied on evidence that the deceased took only two steps before collapsing on the grass adjacent to the driveway. This supported the Crown’s theory that the appellant was the aggressor and took away, or at least severely diminished, the defence of self-defence. On the other hand, the evidence of the pathologist that the deceased “would be expected to be able to at least walk a few feet before collapsing” was relied upon by the appellant to support the position that the confrontation occurred at the top of the driveway, after which the deceased made his way 38 feet down the driveway before collapsing.

[16] Given the importance of the pathologist’s evidence to the positions of both the appellant and the Crown, it was incumbent on the trial judge to put that evidence to the jury accurately.

[17] As stated above, the trial judge instructed the jury that Dr. Rose “testified that it was quite possible for Mr. Kulasingham to walk a few feet without collapsing having suffered these injuries.”

[18] I agree with the submission of counsel for the appellant that the trial judge’s summary leaves the impression that the deceased’s maximum mobility after the stabbing would have been no more than a few feet. It was important to give the jury the accurate description of his mobility as “at least a few feet”, thus leaving it to the jury to decide whether the deceased could have travelled 38 feet before collapsing. The appellant asked the trial judge to give the exact evidence to the jury but she declined to do so.

[19] The importance of this evidence is indicated by counsel for the Crown addressing the jury on this issue for the better part of 30 pages in her closing submissions.

[20] In my view, the summary given by the trial judge constitutes reversible error.

(ii) Did the trial judge err in her instructions to the jury on the defence of self-defence?

[21] Both counsel at trial agreed that the trial judge should charge the jury only on s. 34(2) of the Criminal Code, which provides:

34.(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

[22] The trial judge instructed the jury as follows:

Did Mr. Onigbinde believe that he could not save himself from being killed or seriously injured by Mr. Kulasingham other than by killing or seriously injuring Mr. Kulasingham? Would a reasonable person have the same belief in the same circumstances?

Belief is a state of mind, Mr. Onigbinde’s state of mind. To determine whether Mr. Onigbinde believed that he could not save himself from being killed or seriously injured by Mr. Kulasingham, other than by killing or seriously injuring Mr. Kulasingham, you should consider all the evidence. You should consider what Mr. Onigbinde and Mr. Kulasingham did or did not do. You should consider how they did or did not do it and you should consider what they said or did not say. You should look at their words and conduct before, at the time and after Mr. Onigbinde used force against Mr. Kulasingham. All these things and the circumstances in which they happen may shed light on Mr. Onigbinde’s state of mind at the time. They may help you decide whether Mr. Onigbinde believed that he could save himself from death or serious injury only by killing or seriously injuring Mr. Kulasingham. Use your good common sense.

Mr. Onigbinde’s belief must also be reasonable in the circumstances as Mr. Onigbinde knew or honestly believed them to be. Would a reasonable person in those circum-stances have a similar belief in the need to kill or seriously injure Mr. Kulasingham to preserve himself from a similar fate?

A reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful, a person who has the same powers of self-control that we expect our fellow citizens to exercise in society today.

The danger that Mr. Onigbinde was in or honestly and reasonably believed himself to be in does not have to be immediate. The immediacy or otherwise of it, however, is a factor for you to consider in assessing the honesty and reasonableness of Mr. Onigbinde’s belief. The issue involved in this question is not whether the only actual way for Mr. Onigbinde to save himself from death or serious injury from Mr. Kulasingham was to kill or cause serious injury to Mr. Kulasingham. The issue is whether Mr. Onigbinde honestly and reasonably believed that to do so was the only way to save himself from a similar fate. [Emphasis added.]

[23] Counsel for the appellant submits that the above charge contains two errors. First, he submits that the use of the words “kill” or “killing” suggests that the appellant acted with the intent required for murder. The correct instruction should have used the words “stab” or “stabbing”. Second, counsel for the appellant submits that the trial judge should have instructed the jury that the appellant was not required to carefully measure the force used to repel the deceased’s attack.

[24] Intent to kill or cause grievous bodily harm is not a constituent element of self-defence under s. 34(2): see R. v. Pintar (1996), 110 C.C.C. (3d) 402 at p. 429 (Ont. C.A.) per Moldaver J.A. That said, I am not persuaded that the trial judge fell into error by her use of the words “kill” or “killing” in the circumstances of this case. I note that my colleague, Justice David Watt, uses the word “killing” in his model charge under s. 34(2): see Watt’s Manual of Criminal Jury Instructions (Toronto: Carswell, 2005) at pp. 860-866. I also note that no objection was made by defence counsel at trial to this aspect of the jury charge.

[25] I turn to the second error alleged by counsel for the appellant in respect of the trial judge’s charge on self-defence. This court’s judgment in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.) has stood the test of time. In that case, Martin J.A. said at p. 111:

Moreover, in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2) the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action…. [Citations omitted].

[26] The trial judge declined to give a Baxter instruction. Counsel for the Crown submits that the Baxter instruction usually applies where s. 34(1) and s. 34(2) are left with the jury. In my view, the above quotation from Martin J.A. indicates that such an instruction applies to both ss. 34(1) and 34(2), whether they are left to the jury individually or in conjunction with each other.

[27] In my view, the trial judge erred in failing to give a Baxter instruction.

[28] I also note that it was important for the jury to be told that when the deceased and his friends came up the driveway, there was no obligation on the part of the appellant to retreat.

[29] Further, the jury should have been told that if it found, contrary to the appellant’s evidence, that he had his knife out when the deceased was approaching, that did not per se, negate self-defence under s. 34(2) so long as the jury was otherwise satisfied or had a reasonable doubt that in stabbing the deceased, the appellant was acting in self-defence under s. 34(2).

(iii) Did the trial judge err in her treatment of the evidence of Peter Shanmuganathan?

[30] Mr. Shanmuganathan was present at the altercation that occurred in the driveway of 40 Teesdale Place. He testified that he was the cousin of the deceased. On August 14, 2002 between 1:40 a.m. and 2:34 a.m., a few hours after the altercation, he gave a video statement to the police under oath and under caution. He also testified at the preliminary hearing and at the trial. In his police statement, he said that the deceased threw a beer bottle at the accused, striking him in the stomach, and subsequently wielded a second bottle in his hand.

[31] After cross-examining Mr. Shanmuganathan, counsel for the defence brought a K.G.B.[^1] application in respect of Mr. Shanmuganathan’s statement to the police. Defence counsel was of the opinion that Mr. Shanmuganathan did not adopt his previous statements as true. The trial judge disagreed. The following exchange took place between defence counsel and the court:

Counsel: Your Honour, based on your ruling that he has adopted the previous statement regarding the bottles and that we can then rely on that for the truth of its contents before the jury, we won’t proceed with the K.G.B. application. …

The Court: All right. That’s it.

As a result, counsel abandoned the K.G.B. application.

[32] Counsel for the appellant argues that in view of the trial judge’s ruling, she erred in failing to instruct the jury that certain specific portions of Mr. Shanmuganathan’s statement to the police could be used as evidence of their truth.

[33] I do not agree with the appellant’s submission. The issue of whether the witness adopted a prior inconsistent statement was for the jury. (See: R. v. Toten (1993), 14 O.R. 225 (C.A.) at p. 242.) The trial judge did give the jury the general charge on the use of prior inconsistent statements. That said, I do see a problem with the way this issue arose in the particular circumstances of this case.

[34] In my view, the trial judge should have satisfied herself that counsel for the Crown agreed that the witness had adopted his prior statement to the police, failing which the K.G.B. application should have proceeded.

[35] In any event, I would not give effect to this ground of appeal.

(iv) Did the trial judge err in excluding the evidence of the deceased’s reputation and prior discreditable conduct?

[36] Counsel for the defence at trial sought to tender evidence of the deceased’s reputation and prior disreputable conduct. The evidence consisted of the following:

(i) Evidence from Mr. Shanmuganathan, in his police state-ment and at the preliminary hearing, that the deceased could be physically aggressive when backed up by his friends. At trial, Mr. Shanmuganathan explained that this evidence was based on information from the deceased’s mother.

(ii) On November 9, 1998, the deceased pleaded guilty to carrying a concealed weapon – a 12-inch hatchet hidden in the back of his pants.

(iii) On June 1, 2000, the deceased was a passenger in a car with three other persons. The car was “bumped” from the rear by a pickup truck. The deceased and the others became embroiled in a dispute with the driver of the truck that resulted in the punching and kicking of the driver.

[37] Counsel for the appellant submits that the above evidence is highly relevant to the issue of whether the deceased was the aggressor in the altercation with the appellant. He relies on this court’s judgment in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.), which also concerned the defence of self-defence to charges of second degree murder. In that case, the trial judge admitted evidence of three prior incidents in which the deceased were violent and intimidating. The accused were acquitted. The Crown appealed. Writing for the court, Martin J.A. noted at p. 493 that there is “no rule of policy which excludes evidence of the disposition of a third person for violence where that disposition has probative value on some issue before the jury”. He then held the following at p. 496:

I agree, of course, that evidence of previous acts of violence by the deceased, not known to the accused, must be confined to evidence of previous acts of violence which may legitimately and reasonably assist the jury in arriving at a just verdict with respect to the accused’s claim of self-defence. To exclude, however, evidence offered by the accused which is relevant to prove his innocence would not, in my view, be in the interests of justice.

Since evidence of prior acts of violence by the deceased is likely to arouse feelings of hostility against the deceased, there must inevitably be some element of discretion in the determination whether the proffered evidence has sufficient probative value for the purpose for which it is tendered to justify its admission.

[38] The trial judge excluded the reputation evidence of Mr. Shanmuganathan on the following basis:

Peter’s evidence about the reputation of the accused [sic], I find, in all the circumstances, including the evidence of Detective Sergeant Buck about the deceased’s parents’ lack of knowledge of their son’s propensity for violence, is unreliable. Whether he is recanting or was initially offering opinions without any basis for the opinions about the deceased’s demeanour, it would be very dangerous to allow that evidence to be considered by a jury on the issue of self-defence in this trial. It has no probative value in any legitimate determination of that issue.

[39] Counsel for the appellant submits that the above reasoning confuses threshold and ultimate reliability. If Mr. Shanmuganathan declined to adopt his prior evidence at trial, the evidence would be admissible under the principled exception to the hearsay rule. I disagree. This evidence seems somewhat thin to say the least. The trial judge determined that the evidence had insufficient probative value and I would defer to her decision.

[40] However, the criminal conduct of the deceased may be in a different category.

[41] Counsel for the appellant argues that the trial judge failed to appreciate the relevance of the conviction for carrying a concealed weapon. The trial judge in her ruling said, “I cannot see how the jury can logically be assisted by hearing about this incident in their determination about whether the deceased attacked the accused.” Counsel for the appellant submits that the conviction is a circumstance supporting an inference that the deceased had armed himself with beer bottles, which in turn supports an inference that the deceased was the aggressor. While I see merit in this submission, it will be for the trial judge at the new trial to make the call.

[42] Finally, counsel for the appellant submits that the trial judge failed to appreciate the relevance of the deceased’s participation in the assault on the truck driver. The trial judge said:

Finally, the accused will not be permitted to ask Peter about the so-called road rage incident in June of 2000. Informing the jury that the deceased was there and was charged and then going on to flush out the facts of the incident as they relate to the witness, Peter, may have the effect of the jury finding the deceased guilty by mere association without having the issue reviewed in its entirety by a voir dire and upon properly adduced evidence.

After the deceased’s death, Dobney J. of the Ontario Court of Justice presided at the assault trial of the three other people in the car. She noted, “It is relatively common ground amongst all of them that the fourth person, Mr. Kulasingham got involved at the end, but was indeed involved.” She further found that “at the time of the altercation, there were four young men surrounding [the driver].” These findings lead me to conclude that guilt “by mere association” is not a concern. The deceased’s participation in a gang of four in assaulting one person is probative of the identity of the aggressor in the confrontation between the deceased and the appellant. However, again the issue is for the judge presiding at the new trial.

(v) Did the trial judge err in ruling that no adverse inference could be drawn from the failure of the prosecution to call the witness Thangavel Manoharasivam?

[43] In her opening address to the jury, Crown counsel told the jury that she anticipated Thangavel Manoharasivam (“Mano”) would testify for the prosecution:

You will hear from Peter, Jenan, Mano, Myron and Haines Jones that they did not go to Teesdale to fight, they were just hanging out at Crescent Town Park playing cards and having a beer.

After Azmal asked for their help, Jenan, Peter, Mano and Myron and the deceased Munden, decided to go with him to help. I anticipate you will hear Mano tell you that he knew the people at Teesdale and that he did not want to have a fight with them, and in fact he went over there specifically for that reason.

[44] Mano was called by the Crown in a voir dire during the course of the trial. During the voir dire he gave evidence, which was favourable to the position of the defence, to the effect that there was a plan afoot to attack the appellant. He also testified that they were simply going to talk to the appellant. The Crown advised the court that she had decided not to call Mano in the trial because he was “unreliable”. At the close of the Crown’s case, defence counsel requested that the court call Mano as a witness. In the alternative, defence counsel asked the judge to comment on the failure of the Crown to call the witness. The trial judge refused the request to call the witness. There is no issue about the exercise of her discretion in this respect. She further ruled that defence counsel could comment on the failure of the Crown to call Mano but could not advise the jury that they could draw an adverse inference.

[45] There is a long and well-established practice in both the civil and criminal courts of this province that in certain circumstances – such as these – counsel can invite the trier of fact to draw an adverse inference when opposing counsel declined to call a witness from whom it is anticipated relevant evidence will be tendered. It is clear from the record that the Crown originally intended to call Mano. It is equally clear that the Crown changed her mind because she believed the witness would not help her case. I am not persuaded that she meant anything else by describing the witness as “unreliable”.

[46] Counsel for the Crown on this appeal submits that defence counsel, in his address to the jury, made statements that were tantamount to an invitation to the jury to draw an adverse inference. While the Crown makes a valid point, none of defence counsel’s comments expressly invites the jury to conclude that if Mano had been called, his evidence would have been unhelpful to the Crown. In my view, defence counsel was at least entitled to make that express submission to the jury: see R. v. Jolivet (2000), 2000 SCC 29, 144 C.C.C. (3d) 97 (S.C.C.).

DISPOSITION

[47] For the above reasons, I would allow the appeal, set aside the conviction for second degree murder and order a new trial.

RELEASED:

“JAN 25 2010” “Robert P. Armstrong J.A.”

“MJM” “I agree M.J. Moldaver J.A.”

“I agree G. Epstein J.A.”

[^1]: See R. v. B.(K.G.), [1993] 1 S.C.R. 740.