Court of Appeal for Ontario

Citation: R. v. Hindessa, 2013 ONCA 428
Date: 20130624
Docket: C50890

Judges: Feldman, MacPherson and Cronk JJ.A.

Between:

Her Majesty the Queen
Respondent

and

Arssei Hindessa
Appellant

Counsel:
Arssei Hindessa, appearing in person
Delmar Doucette, amicus curiae
Deborah Krick, for the respondent

Heard: June 13, 2013

On appeal from the conviction entered on March 30, 2009 by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant Arssei Hindessa was convicted of second degree murder and was sentenced to life imprisonment without parole eligibility for 18 years. With the assistance of amicus, he appeals his conviction on three bases.

[2] First, the appellant contends that the conduct of two jurors, jurors 7 and 8, as demonstrated by their acceptance of Mr. Dedina as a juror in the challenge for cause process, demonstrated that they were biased. In answering the question whether he could judge the evidence without bias, Mr. Dedina answered “I’m not a hundred percent sure”. The triers found him “acceptable”.

[3] We do not accept this submission. In R. v. Brown (2005), 2005 CanLII 3939 (ON CA), 194 C.C.C. (3d) 76, this court made it clear that the triers’ determination is not based solely on the responses given by prospective jurors. The determination involves not only an assessment of the response provided but also an assessment of the demeanour and reaction of the prospective juror in answering the question. Given this broader context and the equivocal nature of Mr. Dedina’s response, we do not see any basis for regarding the triers’ acceptance of him as a juror as establishing bias.

[4] Second, the appellant contends that the trial judge’s failure to grant an adjournment deprived him of his opportunity to retain the counsel of his choice.

[5] We disagree. There was no legitimate basis for the adjournment at the juncture it was requested. In any event, no prejudice flowed from the refusal in the circumstances because counsel was re-retained on the second day of trial.

[6] Third, amicus submits that there was a flaw in the trial judge’s instructions to the jury on the issue of the requisite intent for murder. The flaw was the trial judge’s introduction of the appellant’s capacity as a substantive issue that the jury had to determine.

[7] We do not accept this submission. In our view, the trial judge’s instruction in the rolled-up component of her charge relating to intoxication, mental illness, post-traumatic stress disorder and extreme emotion referred to the appellant’s capacity because that was a principal focus of the defence case, especially defence counsel’s closing address. Importantly, in both the jury charge and the decision tree, the ultimate question for the jury was accurately stated, namely, as in the decision tree: “Did Mr. Hindessa have a state of mind required for murder?” In these circumstances, we see no danger that the jury would have been confused about the test they had to apply for the intent to commit murder.

[8] The appeal is dismissed. We are grateful for the assistance of amicus in this matter and observe that he is entitled to his fees, up to a maximum of 100 hours, for his preparation and argument in the appeal.

“K. Feldman J.A.”
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”