Court of Appeal for Ontario

Date: 2022-05-26 Docket: C66725

Before: Doherty, Huscroft and George JJ.A.

Between: Her Majesty the Queen, Respondent and Devontay Hackett, Appellant

Counsel: Craig Zeeh, for the appellant Michael Bernstein, for the respondent

Heard and released orally: May 25, 2022

On appeal from the conviction entered by a jury presided over by Justice Charles T. Hackland of the Superior Court of Justice, dated February 17, 2017, and the sentence imposed on April 3, 2017.

Reasons for Decision

The Conviction Appeal

[1] We do not agree with the submission that the evidence of the defence witness, Ms. Saunders-Gauthier, required a W.(D.) instruction. Her evidence, if accepted, was potentially very helpful to the defence. However, it did not compel the acquittal of the appellant. The witness testified she saw someone other than the appellant swing a knife at the deceased during the melee in which the appellant was also involved in a confrontation with the deceased. The witness could not say whether the swinging knife made contact with the deceased. The jury could have accepted Ms. Saunders Gauthier’s evidence, or had a doubt about its truth, and still found, based on the evidence relied on by the Crown, that the appellant inflicted the blows that killed the deceased. A W.(D.) instruction targeting Ms. Saunders-Gauthier’s evidence would have been wrong in law.

[2] The appellant also takes issue with the trial judge’s treatment of the evidence of Ms. Saunders-Gauthier in his final instructions. Counsel argues that the jury would not have appreciated the significance of her evidence to the defence advanced at trial. We cannot agree.

[3] The significance of Ms. Saunders-Gauthier’s evidence to the issue of the identity of the killer was obvious. The review of her evidence by the trial judge was accurate and even-handed. The significance to the defence of her evidence was canvassed as part of the position of the defence. Apart from one objection on an evidentiary point, counsel at trial made no objection to the manner in which the trial judge dealt with the evidence of Ms. Saunders-Gauthier. We would not give effect to this ground of appeal.

[4] The conviction appeal is dismissed.

The Sentence Appeal

[5] The appellant was sentenced to life imprisonment without eligibility for parole for 12 years. We see no reason to interfere with the trial judge’s increase in the period of parole ineligibility.

[6] The sentence appeal is dismissed.

“Doherty J.A.”

“Grant Huscroft J.A.”

“J. George J.A.”