Court of Appeal for Ontario

Date: 2017-12-14 Docket: C57396

Judges: Hoy A.C.J.O., Doherty and Feldman JJ.A.

Between

Her Majesty the Queen Respondent

and

Jason McCartney Appellant

Counsel

Mark Halfyard and Breana Vandebeek, for the appellant

Michael Bernstein, for the respondent

Hearing

Heard and orally released: December 6, 2017

On appeal from: the conviction entered on February 17, 2012 by Justice A. Stong of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] The appellant was convicted of second degree murder and aggravated assault. He testified that he acted in self-defence. The allegations arose out of a very violent and brief altercation involving the appellant and the two victims on the patio of a restaurant. The fight broke out with little warning and events moved quickly. Not surprisingly, various witnesses provided somewhat different accounts of the relevant events.

[2] The appellant raises two grounds of appeal. He raised a third ground dealing with the instruction on certain after-the-fact conduct by the victims, but he abandoned that ground.

The Crown's Closing Address

[3] The appellant submits that the Crown's closing was improper in several respects and that the trial judge's corrective instructions were inadequate. The appellant submits that the Crown misled the jury as to the applicable legal test for self-defence by indicating to the jury that the defence turned on whether the conduct was reasonable.

[4] Crown counsel's closing did not suggest to the jury that the defence depended on the reasonableness of the appellant's conduct. The Crown's comments made it clear that reasonableness was a factor to be considered in assessing the defence. The Crown proceeded to argue that the appellant's conduct was unreasonable in many respects. In our view this was a legitimate argument and was open to the Crown to make.

[5] The appellant argues that the Crown misstated parts of the evidence. The judge corrected two errors the Crown made in her review of the evidence. The other alleged errors were matters of interpretation. The jury was told that it was their recollection of the evidence that mattered.

[6] The appellant submits that the Crown misled the jury as to their role in the proceedings by describing them as "the defender of self-defence". This comment was inappropriate and was properly corrected by the trial judge. We do not agree that the comment carried any innuendo that needed further correction by the trial judge.

[7] The appellant argues that the Crown used unnecessarily vivid language in describing the appellant as "a powder keg" and "out of control". These descriptors were open on the evidence. The Crown was not describing the appellant's character or disposition, but rather making submissions as to how he was acting at the relevant time.

[8] The appellant argues that the closing comment by the Crown in his argument was an impermissible appeal to the sympathy of the jury for the family of the deceased. The trial judge instructed the jury that considerations of sympathy or prejudice could not affect their deliberations or their verdict. We are satisfied that this instruction would overcome any improper comment made by the Crown.

The Self-Defence Instruction

[9] The appellant submits that the trial judge erred in referring to aspects of self-defence other than the elements of the defence as defined in s. 34(2) of the Criminal Code, as it then read. The parties agreed that self-defence as defined in s. 34(2) was the only applicable section.

[10] The trial judge thoroughly and properly instructed the jury on s. 34(2). He identified the three key elements of the provision and explained how each was to be considered by the jury. The trial judge made a single reference to proportionality as a rationale underlying the defence of self-defence in general. He did not connect that comment to his instructions on s. 34(2). When the trial judge turned to that section, he broke the section down into its essential elements and described each correctly with no reference to proportionality. He made it clear that unless the Crown negated at least one of those elements beyond a reasonable doubt, the appellant was entitled to the defence. This was a proper instruction. There was no risk that the jury would read proportionality into the defence as an element to be added to the three elements so carefully and repeatedly described by the trial judge.

Conclusion

[11] The appeal is dismissed.

"Alexandra Hoy A.C.J.O."

"Doherty J.A."

"K. Feldman J.A."