Court of Appeal for Ontario

Date: 2018-12-20 Docket: C62157 Judges: MacPherson, Pardu and Brown JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Raleigh Stubbs Appellant

Counsel

Catriona Verner and Eva Taché-Green, for the appellant

Karen Papadopoulos, for the respondent

Hearing and Appeal

Heard: December 18, 2018

On appeal from the conviction entered by Justice Patrick J. Flynn of the Superior Court of Justice, sitting without a jury, on October 21, 2015 and the sentence imposed on November 2, 2015.

Reasons for Decision

Facts

[1] Following a jury trial, the appellant was convicted of second degree murder. The trial judge imposed a sentence of life imprisonment with parole ineligibility of 13 years. The appellant appeals the conviction and the sentence.

[2] In the early morning hours of September 15, 2013, the appellant stabbed and killed 18-year old David Pereira.

[3] About an hour before the stabbing, the appellant and the deceased, as well as some of the deceased's friends, had been involved in a brief altercation near the appellant's apartment building. During the altercation, one of the deceased's friends had kicked the appellant in the head.

[4] Inside a neighbour's apartment, the appellant, who was described by the neighbour as "annoyed" and "agitated", asked the neighbour to call 911. The neighbour refused. The appellant went to his own apartment and called 911. Two police officers arrived quite promptly. The appellant made a number of agitated and aggressive comments to both the 911 dispatcher and the police officers, including the need to have a weapon for situations like this.

[5] The police officers asked the appellant if he wanted to go with them and try to identify the men who assaulted him; he said 'no'. The police advised him to stay in his apartment and avoid any altercations.

[6] The appellant returned to the neighbour's apartment. Eventually, she told him to go to bed. The appellant and another friend left and went upstairs to their apartments on the fifth floor. In the hallway, the appellant showed this neighbour his father's knife which, he said, he had been carrying since his father died three months before.

[7] The appellant went back outside and walked the short distance back to the entertainment district where he had been earlier in the evening. When he got close to this area, he took the knife out of his pocket, opened the blade, and tucked it inside the sleeve of his hoodie.

[8] The appellant and the deceased encountered each other near a local Tim Hortons.

[9] The appellant testified that the deceased said "there's the fuckin' goof", that he tried to run away but got knocked into the bushes, and that he got up and pointed the knife at the deceased and "next thing you know, the blade's in David's chest".

[10] The deceased's friend Juan Perez testified that the appellant collided with the deceased, said nothing, and stabbed the deceased, all within 15 seconds. An independent witness, April Tykoliz, described a similar scenario, lasting a couple of seconds.

[11] The appellant was arrested within minutes. While en route to the police station, he told the arresting officer "I got into a fight with him earlier. I took my dad's knife and I shanked him."

[12] The appellant was charged with first degree murder and convicted of second degree murder.

Conviction Appeal

[13] The appellant advances three grounds of appeal.

First Ground: Failure to Leave Defence of Provocation

[14] First, the appellant contends that the trial judge erred by failing to leave the defence of provocation with the jury. The appellant testified about both a wrongful act (the deceased raised his fist after they collided) and an insult ("there's the fuckin' goof") from the deceased. These, he argues, might have deprived him of his power of self-control.

[15] We do not accept this submission. Crucially, experienced defence counsel anchored the appellant's case in self-defence, and nothing else. Indeed, in his opening address to the jury he said: "This is not a case about revenge; this is a case about self-defence. This is a case about a 49-year old man who protected himself." In his closing address to the jury, he reiterated this position: "Raleigh, on the morning of September 15, 2013, until today, has made it very clear that he acted in self-defence."

[16] In R. v. Luciano, 2011 ONCA 89, at para. 76, Watt J.A. acknowledged that there may be many reasons why counsel might not ask for a defence to be left with the jury, adding that such decisions are "often laced with tactical and practical considerations. Incompatibility with a primary defence. Presumed risk of a 'compromise' verdict. An unpalatable alternative in the circumstances disclosed by the evidence." Here, the defences of self-defence and provocation might well have been incompatible and the defence of provocation might have elevated the possibility of a 'compromise' manslaughter verdict. It is not for this court to speculate about experienced counsel's choices in mounting a defence in a serious criminal case.

[17] Moreover, and by way of final comment on this issue, we agree with the respondent that there is no air of reality to the defence of provocation on the facts of this case. If the alleged provocation is the attack on the appellant about an hour before he stabbed the deceased, in that interval the appellant had visited friends in his apartment, called and met the police who told him to stay in his apartment, and declined the police officers' offer to ride with them and try to find his assailants. If the alleged provocation is what happened at Tim Hortons – the deceased saying "there's the fuckin' goof" and the deceased raising his fist – these hardly justify an immediate and brutal stabbing about 10.5 centimeters into the deceased's body. The deceased's acts, as described by the appellant, if they occurred, would not be sufficient to deprive an ordinary person of self-control.

Second Ground: Failure to Provide Rolled-Up Charge

[18] Second, the appellant submits that the trial judge erred by failing to provide the jury with a "rolled-up charge" incorporating the evidence of self-defence, provocation and intoxication into his discussion of the appellant's state of mind.

[19] We disagree. Again, the appellant's case was focused on self-defence. He did not seek a rolled-up charge at trial and did not seek to have provocation and intoxication included in the jury charge.

[20] The trial judge's instructions on the requisite intent for murder tracked the evidence relied on by the parties and told the jury to consider all matters relevant to the appellant's state of mind as they related both to self-defence and the intent required for murder. Defence counsel emphasized the evidence relating to the appellant's fear and his right to defend himself. He made no reference to intoxication or any loss of self-control as a result of the deceased's conduct.

Third Ground: Alleged Imbalance in Jury Charge

[21] Third, the appellant asserts that the trial judge's charge was unbalanced, tilting towards the Crown.

[22] In our view, there is no basis for this submission. The trial judge worked very hard with counsel on the jury charge. He encouraged them to make suggestions and emphasized that he wanted to work together to make the jury charge "right". There was no objection to the charge. Although this is not determinative, it supports a conclusion that the words used by the trial judge were appropriate in the circumstances of the case: R. v. Dooley, 2009 ONCA 910, at para. 31.

Sentence Appeal

[23] The appellant contends that the trial judge made three errors in imposing a period of parole ineligibility of 13 years as part of the sentence.

First Ground: Erroneous Finding Regarding Arming

[24] First, the appellant submits that the trial judge erred by concluding that the appellant armed himself after he was attacked an hour prior to the stabbing and that this was an aggravating factor. The only evidence on this issue was the appellant's testimony that he always carried the knife.

[25] We are not persuaded by this submission. The relevant facts are that the appellant left his apartment with the knife after refusing the police officers' offer to join them in a search for the assailants and, shortly before he arrived at Tim Hortons, he opened the blade and concealed the knife inside the sleeve of his hoodie.

Second Ground: Failure to Treat Provocation and Self-Defence as Mitigating

[26] Second, the appellant asserts that the trial judge erred by failing to treat the evidence that the appellant had been provoked and/or had acted in self-defence as mitigating.

[27] We disagree. Provocation was not a live issue at trial and the jury rejected self-defence. The trial judge was bound by that finding.

Third Ground: Focus on Lack of Remorse

[28] Third, the appellant contends that the trial judge erred by focussing on the appellant's lack of remorse in the hours after the stabbing when he knew that his victim was dead.

[29] It would have been preferable if the trial judge had dealt with remorse in a post-conviction framework. However, we cannot say that this single omission should offset the otherwise comprehensive reasons he advanced in support of the 13 year parole ineligibility period, which was a fit sentence.

Disposition

[30] The appeal is dismissed.

J.C. MacPherson J.A. G. Pardu J.A. David Brown J.A.