Court of Appeal for Ontario

Date: 20240410 Docket: COA-22-CR-0238

Miller, Favreau and Copeland JJ.A.

Between

His Majesty the King Respondent

and

Andre Martin Appellant

Counsel: John Fennel, for the appellant Luke Schwalm, for the respondent

Heard: April 5, 2024

On appeal from the convictions entered on May 25, 2021 and the sentence imposed on April 14, 2022 by Justice David E. Harris of the Superior Court of Justice, with reasons reported at 2021 ONSC 3827 and 2022 ONSC 2354.

Reasons for Decision

[1] In a judge-alone trial, the appellant was convicted of attempted murder using a firearm and possession of a loaded firearm. The appellant appeals from the attempted murder conviction.

[2] The appellant and the victim were members of the same motorcycle club. At some point, the appellant’s membership in the club was terminated. Animosity developed between the appellant and the victim. This included several occasions of verbal threats between them.

[3] On the date of the offences, the appellant and the victim attended a social event of the motorcycle club. After a confrontation instigated by the victim, the victim punched the appellant twice. The appellant stumbled back a few feet, then took out a handgun and fired once or twice at the victim at close range. One bullet hit the victim in the upper abdomen, leaving him paraplegic.

[4] At trial, the appellant testified and raised defences of self-defence and accident. These defences were rejected by the trial judge.

[5] The appellant raises one ground of appeal. He argues that the trial judge erred by failing to consider the provocative conduct of the victim in assessing whether the appellant formed the specific intent to kill required for attempted murder. In particular, he argues that the trial judge failed to consider whether the appellant had time to weigh the consequences of his actions before he fired. To be clear, the appeal does not involve the partial defence of provocation in s. 232 of the Criminal Code, which applies only to murder. Rather, the issue the appellant raises involves whether the trial judge considered all of the circumstances bearing on whether the appellant formed the intent to kill, including provocative conduct by the victim. In a jury trial, this would be referred to as a rolled-up instruction.

[6] We reject the appellant’s argument. The trial judge’s reasons show that he did consider the provocative conduct by the victim and its impact on the appellant’s mental state in assessing whether the Crown had proven intent to kill beyond a reasonable doubt.

[7] After rejecting the defences of self-defence and accident, the trial judge turned to the issue of whether the Crown had proven beyond a reasonable doubt that the appellant intended to kill the victim at the time he shot at the victim. He found that the Crown had proven the required intent, and that this was the only reasonable inference on the evidence.

[8] The major factors on which the trial judge, quite reasonably, relied in finding that intent to kill was proven beyond a reasonable doubt included: (i) that the appellant shot the victim with a high calibre handgun; (ii) that the shot was fired from very close range – two to three feet; (iii) that the bullet was aimed at and entered the victim’s torso, a part of the body where vital organs lie, a generally understood fact; and, (iv) the appellant’s animus towards the victim.

[9] The trial judge expressly considered the provocative conduct of the victim – the punches – and its relevance to whether the appellant formed the intent to kill. He accepted that the provocative conduct of the victim had a role in the events, as did the fact that a very short time elapsed between the punches and the shooting. He accepted that the appellant did not go to the event with the intent to kill the victim, but also noted that the fact that the appellant came armed with a loaded firearm suggested that he was prepared to use the firearm, depending on the circumstances. The trial judge accepted that the appellant became angry as a result of the victim punching him.

[10] The trial judge’s reasons make clear that he considered these factors as relevant to evaluating whether the Crown had proven that intent to kill was the only reasonable inference. But the trial judge was, nonetheless, satisfied beyond a reasonable doubt that the appellant had formed the intent to kill when he fired the shot into the victim’s torso. Considering all of the circumstances, he found that the appellant formed intent to kill in the short time between the punches and firing at the victim. The trial judge’s finding that the appellant formed the intent to kill – even in a very short time – was a rejection of the proposition that the appellant did not have time to consider the consequences of his actions.

[11] We see no error in the trial judge’s reasons or conclusions. He considered all of the circumstances relevant to the appellant’s intent, including the provocative conduct of the victim.

[12] The conviction appeal is dismissed.

[13] The appellant’s Notice of Appeal included an application for leave to appeal sentence, and appeal from sentence if leave were granted. No Notice of Abandonment of the sentence appeal was filed. The appellant’s factum contained no submissions on the sentence appeal and the only relief requested was that the attempted murder conviction be vacated and a new trial ordered. Nor was the sentence appeal addressed in oral submissions. In the circumstances we dismiss the application for leave to appeal sentence.

“B.W. Miller J.A.”

“L. Favreau J.A.”

“J. Copeland J.A.”