



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Baker, 2012
    ONCA 449

DATE:  20120626

DOCKET: C50885

Doherty, Juriansz and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John-Kurtis Baker

Appellant

Dirk Derstine and Mariya Yakusheva, for the appellant

David Finley, for the respondent

Heard and released orally:  June 15, 2012

On appeal from the conviction entered on February 22,
    2008 and the sentence imposed on February 29, 2008 by Justice Pedlar of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The conviction appeal fails.

[2]

On the first ground of appeal, we do not agree that the trial judge
    erred in allowing evidence that the witness had pled guilty to manslaughter in
    connection with the homicide for which the appellant was being tried.  The
    trial judges decision to admit that evidence was within his discretion.  The
    alternative suggested by the defence, that the witness refer to the conviction
    as a conviction for a serious criminal offence less than murder would not have
    avoided the problem that eventually arose out of the jurys question and could
    easily have led the jury to speculate as to the exact nature of the offence to
    which the witness had pled guilty.

[3]

The trial judges response to the jurys question after it had heard the
    witnesss evidence made it clear to the jury that it should not concern itself
    with the reasons behind the witnesss decision to plead guilty to
    manslaughter.  The trial judges answer also made it clear that the witnesss
    plea to manslaughter did not constitute any evidence against the appellant and
    could not assist them in determining the appellants guilt.  Finally, the trial
    judge told the jury that the witnesss evidence that she had pled guilty to
    manslaughter was relative only to her credibility as a witness but was in no
    way determinative of that credibility.  We see no error in these instructions. 
    They adequately dealt with the problems reflected in the jurys question.

[4]

The trial judge refused to put self-defence to the jury.  Counsel, in his
    able oral submissions, argues that the trial judge should have put s. 37(1) to
    the jury.

[5]

We agree with the trial judges ruling that there was no air of reality
    to the self-defence claim.  Specifically, we see no basis upon which a jury
    could reasonably find or, more to the point, could have a reasonable doubt as
    to whether the appellant reasonably believed that it was necessary for him to
    use deadly force with a weapon to stop the deceased from continuing his assault
    on the appellant or from assaulting the appellants father.  The appellant, who
    testified, offered no evidence in this regard.  He indicated that he blacked
    out before he stabbed the deceased.  There was evidence of a statement made by
    the appellant immediately after the stabbing in which he did not suggest that
    he had stabbed the deceased in self-defence.  The other circumstantial evidence
    considered as a whole and placed in the context of the appellants post-homicide
    statement and his testimony does not lend any air of reality to self-defence as
    defined in s. 37.

[6]

The third ground of appeal arises out of a statement made by the
    appellant to Trevor Foreman on the evening of the homicide.  In that statement,
    the appellant said he would stab the deceased.  In our view, that statement was
    reasonably capable of being understood as a threat to kill the deceased and was,
    therefore, relevant to the appellants state of mind when he stabbed the
    deceased.  The context in which the statement was made and the possibility that
    the statement was misheard, qualified, or explained by something said before or
    after the statement was made does not so undermine the probative value of the
    statement as to render its interpretation a matter of speculation.  The
    statement was properly before the jury for its consideration.  It was for the
    jury to decide what to make of the statement.

[7]

The conviction appeal is dismissed.

[8]

The trial judge increased the parole ineligibility period to 12 years. 
    While others may have found this a case where no increase in the parole ineligibility
    was appropriate, especially given the appellants age, he was only 19, we
    cannot say that the trial judge erred in principle in his reasons. 
    Consequently, we must defer to the sentence imposed unless it is manifestly
    unreasonable.  We are not satisfied that the sentence imposed can be so
    characterized.  The appeal from sentence is dismissed.

Doherty J.A.

R.G. Juriansz J.A.

Ducharme J.A.


