R. v. Stiers (K.), (2010) 268 O.A.C. 58 (CA)

• Judge: Sharpe, LaForme and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 04, 2010
• Jurisdiction: Ontario
• Citations: (2010), 268 O.A.C. 58 (CA);2010 ONCA 656

R. v. Stiers (K.) (2010), 268 O.A.C. 58 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.016

Her Majesty the Queen (respondent) v. Kevin Stiers (appellant)

(C43142; 2010 ONCA 656)

Indexed As: R. v. Stiers (K.)

Ontario Court of Appeal

Sharpe, LaForme and Rouleau, JJ.A.

October 7, 2010.

Summary:

The accused was convicted of first degree murder and sentenced to life imprisonment with no eligibility for parole for 25 years. The accused appealed his conviction. He raised grounds of appeal relating to the Crown's re-examination of a witness and use of his out-of-court statements, and the adequacy of the judge's instructions relating to post-offence conduct, provocation, and planning and deliberation. The accused also submitted that the first degree murder verdict was unreasonable.

The Ontario Court of Appeal, in a decision reported at 264 O.A.C. 305, held that the trial judge failed to provide the jury with an adequate instruction in relation to the application of the definition of "planning and deliberation" to the facts of the case. Further, while not an error, it would have been preferable had the trial judge provided the jury with additional guidance on the use it could make of the post-offence evidence. That shortcoming in the instruction had a bearing on whether the jury convicted the accused of first or second degree murder. While the verdict of first degree murder was not unreasonable, it was tainted by the error and, given the tenuous factual basis for first degree murder, the verdict could not stand. The court dismissed the appeal pursuant to s. 686(1)(b)(i) of the Criminal Code and substituted a conviction for second degree murder under s. 686(3). The court otherwise dismissed the appeal. Counsel agreed that rather than remit the matter of the period of parole ineligibility to the trial judge, it was appropriate for the appeal panel to deal with that issue under s. 686(3)(b).

The Ontario Court of Appeal imposed a 10 year period of parole ineligibility.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - [See Criminal Law - Topic 5881 ].

Criminal Law - Topic 5881

Sentence - Murder - The accused's conviction for first degree murder was overturned on appeal and a conviction for second degree murder was substituted - The Ontario Court of Appeal imposed a 10 year period of parole ineligibility - The crime had a devastating effect upon the 19 year old victim's family - The accused continued to maintain that he acted in self-defence but, on the appeal, expressed remorse for the pain and suffering his conduct had caused the victim's friends and family - Further, the accused's recent institutional history offered the hope of rehabilitation and the possibility of his eventual successful integration into the community - The accused, now aged 30, presented as a very different individual than the 23 year old man who had committed the crime - The court had to sentence him on the basis of the current state of affairs rather than that which existed at the time of the offence and when the jury convicted him.

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, folld. [para. 4].

R. v. Maciel (R.) (2007), 226 O.A.C. 1 (C.A.), dist. [para. 12].

R. v. Pyne (T.D.) (1997), 104 O.A.C. 225 (C.A.), consd. [para. 12].

Counsel:

James Lockyer, for the appellant;

Brian Manarin and Holly Loubert, for the respondent.

This matter was heard on October 4, 2010, by Sharpe, LaForme and Rouleau, JJ.A., of the Ontario Court of Appeal, who delivered the following decision on October 7, 2010.