Court of Appeal for Ontario

CITATION: R. v. Hall, 2015 ONCA 766

DATE: 20151110

DOCKET: C54843

BEFORE: Doherty, Pepall and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Hall

Appellant

COUNSEL:

Erika Chozik, for the appellant

Mabel Lai, for the respondent

HEARD AND RELEASED ORALLY: November 4, 2015

On appeal from the conviction entered by Justice Archibald of the Superior Court of Justice, dated November 20, 2011 and the sentence imposed on December 20, 2011.

ENDORSEMENT

The Conviction Appeal

[1] Duty counsel challenges the instruction on intoxication as it related to the intention required to prove second degree murder. This was the key, if not the only, real issue at the appellant’s trial.

[2] Duty counsel has helpfully taken us carefully through the relevant parts of the charge to the jury. In our view, the trial judge properly instructed the jury on the relevance of evidence of intoxication to the mens rea required for murder. The trial judge also reviewed the evidence, including the expert evidence, relevant to that issue. Finally, the trial judge fully summarized the position of the defence on the issue of intoxication.

[3] We are satisfied that, based on the instruction, the jury would clearly understand that it was the defence position that the appellant had no recollection of the relevant events because of an alcohol induced blackout and that this blackout was indicative of his degree of intoxication which in turn supported the defence position that the Crown had failed to prove the required mens rea. We are satisfied that the jury went into its deliberations with a firm understanding of the position of the defence. They clearly rejected that position.

[4] We would dismiss the conviction appeal.

The Sentence Appeal

[5] This was clearly a proper case for an increase in the appellant’s period of parole ineligibility, as duty counsel frankly acknowledges. We can see no error in the reasons for sentence. The trial judge appreciated the evidence of intoxication, but he was not prepared to give it the degree of mitigating force urged by counsel for the appellant at trial. The trial judge was entitled to do so.

[6] The trial judge’s collection of the aggravating and mitigating factors (paras. 53 and 54 of his reasons) reflects a full understanding of the record before him. He did not err in the exercise of his sentencing discretion, and we cannot interfere with the sentence imposed by the trial judge.

[7] The sentence appeal is dismissed.

“Doherty J.A.”

“S.E. Pepall J.A.”

“David Brown J.A.”