COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baker, 2012 ONCA 449

DATE: 20120626

DOCKET: C50885

Doherty, Juriansz and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John-Kurtis Baker

Appellant

Dirk Derstine and Mariya Yakusheva, for the appellant

David Finley, for the respondent

Heard and released orally: June 15, 2012

On appeal from the conviction entered on February 22, 2008 and the sentence imposed on February 29, 2008 by Justice Pedlar of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The conviction appeal fails.

[2] On the first ground of appeal, we do not agree that the trial judge erred in allowing evidence that the witness had pled guilty to manslaughter in connection with the homicide for which the appellant was being tried. The trial judge’s decision to admit that evidence was within his discretion. The alternative suggested by the defence, that the witness refer to the conviction as a conviction for a “serious criminal offence less than murder” would not have avoided the problem that eventually arose out of the jury’s question and could easily have led the jury to speculate as to the exact nature of the offence to which the witness had pled guilty.

[3] The trial judge’s response to the jury’s question after it had heard the witness’s evidence made it clear to the jury that it should not concern itself with the reasons behind the witness’s decision to plead guilty to manslaughter. The trial judge’s answer also made it clear that the witness’s plea to manslaughter did not constitute any evidence against the appellant and could not assist them in determining the appellant’s guilt. Finally, the trial judge told the jury that the witness’s evidence that she had pled guilty to manslaughter was relative only to her credibility as a witness but was in no way determinative of that credibility. We see no error in these instructions. They adequately dealt with the problems reflected in the jury’s question.

[4] The trial judge refused to put self-defence to the jury. Counsel, in his able oral submissions, argues that the trial judge should have put s. 37(1) to the jury.

[5] We agree with the trial judge’s ruling that there was no air of reality to the self-defence claim. Specifically, we see no basis upon which a jury could reasonably find or, more to the point, could have a reasonable doubt as to whether the appellant reasonably believed that it was necessary for him to use deadly force with a weapon to stop the deceased from continuing his assault on the appellant or from assaulting the appellant’s father. The appellant, who testified, offered no evidence in this regard. He indicated that he “blacked out” before he stabbed the deceased. There was evidence of a statement made by the appellant immediately after the stabbing in which he did not suggest that he had stabbed the deceased in self-defence. The other circumstantial evidence considered as a whole and placed in the context of the appellant’s post-homicide statement and his testimony does not lend any air of reality to self-defence as defined in s. 37.

[6] The third ground of appeal arises out of a statement made by the appellant to Trevor Foreman on the evening of the homicide. In that statement, the appellant said he would stab the deceased. In our view, that statement was reasonably capable of being understood as a threat to kill the deceased and was, therefore, relevant to the appellant’s state of mind when he stabbed the deceased. The context in which the statement was made and the possibility that the statement was misheard, qualified, or explained by something said before or after the statement was made does not so undermine the probative value of the statement as to render its interpretation a matter of speculation. The statement was properly before the jury for its consideration. It was for the jury to decide what to make of the statement.

[7] The conviction appeal is dismissed.

[8] The trial judge increased the parole ineligibility period to 12 years. While others may have found this a case where no increase in the parole ineligibility was appropriate, especially given the appellant’s age, he was only 19, we cannot say that the trial judge erred in principle in his reasons. Consequently, we must defer to the sentence imposed unless it is manifestly unreasonable. We are not satisfied that the sentence imposed can be so characterized. The appeal from sentence is dismissed.

“Doherty J.A.”

“R.G. Juriansz J.A.”

“Ducharme J.A.”