R. v. Azzam (D.),

• Jurisdiction: Ontario
• Judge: Epstein,Glithero,MacPherson
• Neutral Citation: 2008 ONCA 467
• Citation: 2008 ONCA 467,(2008), 237 O.A.C. 338 (CA),237 OAC 338,(2008), 237 OAC 338 (CA),237 O.A.C. 338
• Date: 30 April 2008
• Court: Court of Appeal (Ontario)

R. v. Azzam (D.) (2008), 237 O.A.C. 338 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JN.056

Her Majesty the Queen (respondent) v. Danny Azzam (appellant)

(C42766; 2008 ONCA 467)

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

Ontario Court of Appeal

MacPherson and Epstein, JJ.A., and Glithero, R.S.J.(ad hoc)

June 12, 2008.

Summary:

The accused admitted to police that he killed his stepmother. He was charged with first degree murder. The accused raised the issues of provocation, lack of intent and intoxication. A jury convicted him of first degree murder. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused reported his stepmother missing - The police discovered her murdered - They asked the accused and his girlfriend to attend the police station for an interview - The accused made exculpatory statements during an interview - The trial judge concluded that the accused had not been detained at the time of this interview and therefore the accused's s. 10(b) Charter right to counsel had not been engaged - The Ontario Court of Appeal held that there was ample evidence to support this conclusion - There was no evidence that the accused felt that he had been "psychologically" detained - The fact that the physical description given by an eye witness only generally matched the accused, that the eye witness subsequently failed to pick his photograph out of a line up, and the alibi evidence given by the accused's girlfriend strongly supported the trial judge's finding that the police did not have reasonable and probable grounds to charge or arrest the accused prior to the interview - There was ample evidence upon which the trial judge could conclude that the questioning was part of a general investigation, as opposed to police questioning for the purpose of obtaining incriminating statements from a person the police had decided to be responsible for the crime - See paragraphs 19 to 30.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 3604 ].

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - The accused was charged with first degree murder - In instructing the jury respecting the issues of intent, intoxication and provocation, the trial judge erroneously told the jury that, if they found the accused had the required state of mind for murder and rejected the defences of intoxication and murder, they should find the accused guilty of first degree murder (instead of murder only) - Soon after, the trial judge admitted the error and correctly charged them that if they resolved those three issues in favour of the Crown, the result would be a finding of second degree murder, rather than first degree murder - He instructed the jury that he had not yet dealt with the issue of planning and deliberation, which was the extra ingredient required to be proven for first degree murder - The Ontario Court of Appeal held that the correcting charge was sufficient to accurately clarify the jury's understanding as to the necessary elements for the various offences relevant to their deliberations - Read as a whole, the charge made it clear to the jury that proof of planning and deliberation beyond a reasonable doubt was an essential element for first degree murder - The jury could not have been left in confusion on that issue - See paragraphs 51 to 57.

Criminal Law - Topic 4350.4

Procedure - Charge or directions - Jury or judge alone - Use of "rolled-up" charge - The accused was convicted by a jury of first degree murder - He had raised the issues of provocation, lack of intent and intoxication - The accused appealed, arguing that the trial judge erred in failing to give the jury a "rolled-up" instruction directing them to consider intoxication, provocation, and anger together and in combination in determining whether the intent required for murder had been established - The Ontario Court of Appeal rejected the argument - "Anger" (short of provocation) could not reduce murder to manslaughter - Therefore, "anger" could not be a factor in a rolled-up charge - In the circumstances of this case, provocation and intoxication would not be the proper subject of a rolled-up charge - Intoxication was relevant to the issue of whether the accused had the required intent - Provocation by definition presupposed the required intent but reduced the offence to one of manslaughter - Further, the trial judge instructed the jury to consider the effect of the alleged provocation on the accused and, in so doing, to take into account the effect of alcohol or drugs on him - That instruction was sufficient to bring home to the jury that the claimed alcohol and drug ingestion was relevant not only to the issue of intent, but also to the issue of provocation - See paragraphs 64 to 70.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - The accused was convicted of first degree murder - The accused had admitted that he killed the victim, but raised the issues of lack of intent, provocation and intoxication - He appealed, arguing that the trial judge erred in failing to give a full instruction pursuant to the decision in R. v. D.W. (S.C.C.) - In the jury charge, in the sections relating to intention, intoxication, and to planning and deliberation, the trial judge instructed the jury with respect to the first two branches of the D.W. formulation dealing with the acceptance of the accused's evidence, or rejection of it, but being left with a reasonable doubt by it - However, at no point did the trial judge give the third step of the D.W. formulation, namely that even if the evidence of the accused was totally rejected, they should still go on to consider on the balance of the evidence whether the Crown had met the burden of proof - The Ontario Court of Appeal held that, while the charge was in error in failing to give a complete D.W. instruction, the error could not have reasonably had any effect on the outcome in this matter - It was only the accused's evidence that theoretically called into question the issue of planning and deliberation, and only his evidence that arguably, at best, amounted to a denial of the intent necessary for murder - If his evidence was rejected, on the balance of the evidence the outcome was clear - See paragraphs 71 to 77.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The accused was convicted of first degree murder - In the charge to the jury, the trial judge pointed out the discrepancies in an eye witness' description to the police as compared to a photograph of the accused, the fact that the eye witness had failed to pick the accused out of the photographic line-up, and recited the qualified nature of her identification in court - The trial judge did not charge the jury as to the usual frailties of identification evidence - Rather, he left the eye witness's evidence to the jury as circumstantial evidence - The accused appealed, arguing that the trial judge failed to adequately instruct the jury in that he failed to caution them as to the inherent frailties of identification evidence - The Ontario Court of Appeal rejected the argument - The Crown's case did not rely upon the witness' evidence to prove that the accused was the killer - His own evidence proved that - The evidence respecting the manner and conduct of the person the witness saw was relevant to the issue of the accused's alleged lack of intent by reason of intoxication, and possibly of some relevance to the issue of planning and deliberation - It would have been preferable had the trial judge charged the jury in the traditional way - However, given the limited purpose for which the evidence was offered, which did not involve reliance upon it to prove the identity of the perpetrator, the manner in which the trial judge chose to instruct the jury caused no prejudice to the accused - See paragraphs 31 to 43.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions regarding flight and other post-offence behaviour of accused - The accused was convicted by a jury of the first degree murder of his stepmother - He had admitted that he killed her but argued, inter alia, provocation and lack of intent due to intoxication - He appealed, arguing that the trial judge erred respecting instructions on the use of post-offence conduct (creation and use of alibi, changing and hiding of his clothes, flattening the tires of the bicycle that he had used to travel to and from the murder scene, and advising the police that his stepmother was missing) - The Ontario Court of Appeal rejected the argument - The post-offence conduct was relevant to the issues of the intent required for murder, intoxication and planning and deliberation - See paragraphs 44 to 50.

Cases Noticed:

R. v. Bazinet (1986), 14 O.A.C. 15; 25 C.C.C.(3d) 273 (C.A.), refd to. [para. 27].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), leave to appeal refused [1988] 1 S.C.R. xi, refd to. [para. 28].

R. v. Arcangioli (G.) (1994), 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 44].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 46].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 48].

R. v. Parent (R.) (2001), 268 N.R. 372; 154 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 65].

R. v. Walle (A.J.) (2007), 417 A.R. 338; 410 W.A.C. 338; 2007 ABCA 333, refd to. [para. 65].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 71].

Counsel:

Irwin Koziebrocki, for the appellant;

M. David Lepofsky, for the respondent.

This appeal was heard on April 30, 2008, by MacPherson and Epstein, JJ.A., and Glithero, R.S.J.(ad hoc), of the Ontario Court of Appeal. Glithero, R.S.J.(ad hoc), delivered the following judgment for the court which was released on June 12, 2008.