Court of Appeal for Ontario

CITATION: R. v. Cham, 2011 ONCA 330

DATE: 20110428

DOCKET: C50406

Weiler, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ajoda Obwodo Cham

Appellant

Counsel:

Brian H. Greenspan and Jill Makepeace, for the appellant

Susan G. Ficek, for the respondent

Heard and released orally: April 21, 2011

On appeal from the conviction entered on April 21, 2008 and the sentence imposed on June 17, 2008 by Justice Robert J. Abbey of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his convictions for attempt murder, aggravated assault and uttering a death threat. If granted leave, he also appeals his sentence of six years for attempted murder on the basis that the trial judge failed to consider the fact that the appellant acted out of fear as a mitigating factor.

[2] The Crown concedes the appellant’s appeal of his conviction for aggravated assault on the basis of the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.), the principle that prevents multiple convictions for the same wrongful act, and also agrees that, as a result, the sentence of three months concurrent to the sentence for aggravated assault should be set aside.

[3] The main issue on the conviction appeal is whether the trial judge erred in refusing to leave self defence with the jury.

[4] In our opinion the trial judge’s ruling was correct. On the evidence, this was a pre-emptive attack by the appellant. While the victim’s blood was found on the handle and point of a steak knife in the kitchen, there is no evidence to suggest that the victim had the knife in his hand prior to being attacked by the appellant. Quite apart from whether the appellant had a subjective belief that met all three elements of self defence, we agree that there was no objective air of reality to the defence of self defence, particularly in relation to the third element. That element requires evidence that the appellant could not otherwise preserve himself from death or grievous bodily harm. There is no evidence to explain why the appellant did not call the police or seek the assistance of Mr. Al Shaibie, who had successfully intervened in the prior dispute between himself and the victim or simply display the machete to scare off the victim, particularly in light of the striking disparity between the two weapons – a 10 inch steak knife compared to a 23 inch machete with an 18 inch blade.

[5] The appeal as to conviction on attempt murder is dismissed.

[6] With respect to the sentence for attempted murder, we are of the opinion the trial judge did not err in principle. The trial judge noted the mitigating factors, the appellant’s youth and lack of prior criminal record, his co-operation with the police and the appropriate range of sentence. The appellant’s subjective fear of his victim is not a mitigating factor. His sentence of six years was not manifestly unfit and we cannot interfere. Accordingly, leave to appeal sentence is granted, but the appeal as to sentence on the count of attempt murder is dismissed.

[7] With respect to the count of aggravated assault, the conviction is set aside, a finding of guilt is substituted and a stay is imposed. The sentence of three months concurrent is therefore set aside.

[8] The appeal is otherwise dismissed.

“Karen M. Weiler J.A.”

“R.A. Blair J.A.”

“Gloria Epstein J.A.”