Court of Appeal for Ontario

Date: 20231026 Docket: C69074

Miller, Paciocco and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Michael LeBlanc Appellant

Counsel: Bryan Badali, for the appellant Jennifer Epstein, for the respondent

Heard and released orally: October 25, 2023

On appeal from the conviction entered on October 3, 2023 by Justice Ronald M. Laliberté of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Michael LeBlanc appeals his second-degree murder conviction in the stabbing death of Mohammad Hassan. Mr. LeBlanc does not contest that he stabbed Mr. Hassan to death after a conflict arising out of a drug debt. [1] The stabbing was brutal. Mr. Hassan sustained 23 stabs wounds, 11 of which could have been fatal independently of the other wounds sustained. His heart was pierced, and his cervical spinal cord severed.

[2] At his trial, Mr. LeBlanc advanced a “kill or be killed” defence of self-defence but sought alternative jury directions from the trial judge on the defence of provocation, and on a rolled-up charge inviting a manslaughter verdict, recognizing the effect that wrongful acts or insults falling short of provocation could have had on his state of mind. The trial judge refused these alternative directions, finding that neither had an air of reality in the evidence. Mr. LeBlanc appeals his conviction arguing that the trial judge erred in failing to give the alternative charges.

[3] We would dismiss the appeal. A provocation defence cannot succeed unless the accused acted on the sudden in response to a wrongful act or insult before there was time for their passions to cool. Mr. LeBlanc relies on the wrongful act or insult of Mr. Hassan, threatening to kill him and his family, while brandishing a knife, which he testified to. We must assume this testimony to be true for the purposes of the appeal. Even doing so, there is no coherent narrative in the evidence that would enable a finding that Mr. LeBlanc acted on the sudden, with the wrongful act or insult striking an unprepared mind. Mr. Hassan had made the same threat to kill Mr. LeBlanc and his family in the days leading up to the fatal altercation, and again when the two men first met that day. Mr. LeBlanc testified that he took the threats “plenty seriously”. Although that threat had not previously been made by Mr. Hassan with a knife in his hand, Mr. Leblanc testified that he had expected Mr. Hassan to have a knife and prepared to respond in the event of an attack by bringing his own knife. We see no material error in the trial judge’s determination that the evidence does not provide any air of reality to this element of the partial defence. We accept counsel’s submission that Mr. LeBlanc’s testimony supported a finding that his concern may have been reduced by the time of the stabbing, but this does not alter the fact that Mr. LeBlanc was prepared for the very contingency that happened. The trial judge did not cherry pick the evidence in coming to the decision he did. Since all elements of the partial defence must be met for it to operate, there is no need to consider the challenges Mr. LeBlanc brings to other aspects of the trial judge’s provocation ruling.

[4] There was no air of reality supporting the rolled-up manslaughter charge. Even if the trial judge should not have put the weight that he did on Mr. LeBlanc’s testimony that he intended to kill Mr. Hassan in self-defence as negating the possibility of a manslaughter verdict, the nature of the attack left no realistic scope for any finding other than that, at the very least, Mr. LeBlanc intended to cause bodily harm that he knew was likely to cause Mr. Hassan’s death and was reckless as to whether death occurred.

[5] The appeal is dismissed.

“B. W. Miller J.A.”

“David M. Paciocco J.A.”

“S. Coroza J.A.”

Footnote

[1] The Appellant is not pursuing his sentence appeal.