R. v. Angelis (D.), 2013 ONCA 70

• Judge: Laskin, Goudge and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 11, 2012
• Jurisdiction: Ontario
• Citations: 2013 ONCA 70;(2013), 300 O.A.C. 367 (CA)

R. v. Angelis (D.) (2013), 300 O.A.C. 367 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. FE.002

Her Majesty the Queen (respondent) v. Demetrios Angelis (appellant)

(C53313; 2013 ONCA 70)

Indexed As: R. v. Angelis (D.)

Ontario Court of Appeal

Laskin, Goudge and Gillese, JJ.A.

February 1, 2013.

Summary:

The appellant appealed from his conviction for the second degree murder of his wife.

The Ontario Court of Appeal held that the trial judge erred by refusing to leave the defence of provocation with the jury and he also erred in his instructions to the jury on the appellant's post-offence conduct. The court allowed the appeal, set aside the conviction, and ordered a new trial.

Criminal Law - Topic 40

General principles - Provocation - [See both Criminal Law - Topic 1285 ].

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - After a trial before a judge and jury, the appellant was convicted of the second degree murder of his wife - The appellant had accepted that he caused his wife's death during a physical altercation - The trial judge ruled that although the objective element of provocation had an air of reality, the subjective element of the provocation defence had no air of reality because the appellant testified that he was not angry after his wife attacked him - The Ontario Court of Appeal held that the trial judge erred by refusing to leave the defence of provocation with the jury - The trial judge was not justified in withdrawing the defence from the jury solely on the basis of the appellant's disavowal of anger - Instead, he was required to consider whether there was any evidence before the jury, from the appellant's mouth or otherwise, establishing the subjective element of the defence - The court found there was such evidence for two reasons: first, the Crown's position at trial was that the appellant intended to kill his wife because he was angry; and second, there was evidence, both direct and circumstantial, from which a jury could conclude that the subjective element of provocation was made out - There was an air of reality to the defence of provocation and the trial judge erred by refusing to leave that defence with the jury - See paragraphs 29 to 42.

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - The Ontario Court of Appeal stated that "Although an accused's testimony is an important consideration in assessing the viability of a provocation defence, the trial judge should always consider any other evidence capable of supporting an inference of sudden rage or loss of control. Even where an accused denies being angry at the time of the offence, if there is other evidence on which a jury could find provocation was made out, the trial judge must leave the defence with the jury" - See paragraph 33.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - After a trial before a judge and jury, the appellant was convicted of the second degree murder of his wife - The appellant had accepted that he caused his wife's death during a physical altercation - The trial judge instructed the jury that they could take into account the appellant's post-offence conduct in determining whether the appellant intended to kill his wife - That post-offence conduct included the appellant's inaction immediately after becoming aware that his wife had died (although he was a trained nurse, he did not administer CPR or call 911) and his behaviour in the three or four hours after his wife died (he folded the living room carpet over her and dragged her body into the master bedroom, he put his wife's makeup on to hide his injuries, he took his children to church then returned home and gave the children some Christmas presents he had previously bought for them, and three or four hours after his wife died, he called 911 and reported her death) - The Ontario Court of Appeal held that the trial judge erred by telling the jury that they could infer from the appellant's post-offence conduct that he had the intent to kill his wife - Because the appellant's post-offence conduct was not relevant to the issue of his intent, the trial judge should have further instructed the jury that this evidence had no probative value on the question of whether the appellant was guilty of murder or manslaughter - It could not be said that the trial judge's erroneous instructions caused no substantial wrong - Therefore, even though defence counsel did not object to the instructions, the court held that it would not apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code - Because the post-offence conduct instructions potentially affected the appellant's claim of self-defence, this error warranted a new trial - See paragraphs 56 to 61.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - The Ontario Court of Appeal discussed general principles regarding the use of post-offence conduct to determine culpability - See paragraphs 51 to 55.

Cases Noticed:

R. v. Tran (T.K.), [2010] 3 S.C.R. 350; 409 N.R. 1; 493 A.R. 123; 502 W.A.C. 123; 2010 SCC 58, refd to. [para. 30].

R. v. Thibert (N.E.), [1996] 1 S.C.R. 37; 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321, refd to. [para. 30].

R. v. Krasniqi (A.) (2012), 295 O.A.C. 223; 2012 ONCA 561, refd to. [para. 32].

R. v. Gill (R.) (2009), 246 O.A.C. 390; 241 C.C.C.(3d) 1; 2009 ONCA 124, refd to. [para. 34].

R. v. Boudreau (J.E.), [2012] O.A.C. Uned. 701; 2012 ONCA 830, refd to. [para. 39].

R. v. Bennett (M.) (2003), 177 O.A.C. 71; 67 O.R.(3d) 257 (C.A.), refd to. [para. 46].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 51].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 111 D.L.R.(4th) 48, refd to. [para. 53].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, reving. (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 (C.A.), refd to. [para. 53].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 53].

R. v. Swanson (L.J.) (2002), 173 B.C.A.C. 62; 283 W.A.C. 62; 168 C.C.C.(3d) 1; 2002 BCCA 528, refd to. [para. 53].

R. v. Rodrigue (K.) (2007), 245 B.C.A.C. 19; 405 W.A.C. 19; 223 C.C.C.(3d) 53; 2007 YKCA 9, refd to. [para. 53].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 232 C.C.C.(3d) 51; 2008 ONCA 106, refd to. [para. 53].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 54].

R. v. Anthony (J.) (2007), 228 O.A.C. 272; 2007 ONCA 609, refd to. [para. 58].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 2009 ONCA 543, refd to. [para. 58].

R. v. McIntyre (A.) (2012), 291 O.A.C. 359; 2012 ONCA 356, refd to. [para. 58].

R. v. Levert (G.) (2001), 150 O.A.C. 208; 159 C.C.C.(3d) 71 (C.A.), refd to. [para. 63].

R. v. Trotta (M.) et al. (2004), 191 O.A.C. 322; 190 C.C.C.(3d) 199 (C.A.), revd. [2007] 3 S.C.R. 453; 369 N.R. 385; 232 O.A.C. 377; 2007 SCC 49, refd to. [para. 63].

Counsel:

Howard L. Krongold, for the appellant;

Kimberly Crosbie, for the respondent.

This appeal was heard on December 11, 2012, before Laskin, Goudge and Gillese, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Laskin, J.A., and was released on February 1, 2013.