



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. McCartney, 2017 ONCA 981

DATE: 20171214

DOCKET: C57396

Hoy A.C.J.O., Doherty and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason McCartney

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Michael Bernstein, for the respondent

Heard and orally released:  December 6, 2017

On appeal from the conviction entered on February 17,
    2012 by Justice A. Stong of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of second degree murder and aggravated
    assault. He testified that he acted in self-defence. The allegations arose out
    of a very violent and brief altercation involving the appellant and the two
    victims on the patio of a restaurant. The fight broke out with little warning
    and events moved quickly. Not surprisingly, various witnesses provided somewhat
    different accounts of the relevant events.

[2]

The appellant raises two grounds of appeal. He raised a third ground
    dealing with the instruction on certain after-the-fact conduct by the victims,
    but he abandoned that ground.

The Crowns Closing Address

[3]

The appellant submits that the Crowns closing was improper in several
    respects and that the trial judges corrective instructions were inadequate.
    The appellant submits that the Crown misled the jury as to the applicable legal
    test for self-defence by indicating to the jury that the defence turned on
    whether the conduct was reasonable.

[4]

Crown counsels closing did not suggest to the jury that the defence
    depended on the reasonableness of the appellants conduct. The Crowns comments
    made it clear that reasonableness was a factor to be considered in assessing
    the defence. The Crown proceeded to argue that the appellants conduct was
    unreasonable in many respects. In our view this was a legitimate argument and
    was open to the Crown to make.

[5]

The appellant argues that the Crown misstated parts of the evidence. The
    judge corrected two errors the Crown made in her review of the evidence. The
    other alleged errors were matters of interpretation. The jury was told that it
    was their recollection of the evidence that mattered.

[6]

The appellant submits that the Crown misled the jury as to their role in
    the proceedings by describing them as the defender of self-defence. This
    comment was inappropriate and was properly corrected by the trial judge. We do
    not agree that the comment carried any innuendo that needed further correction
    by the trial judge.

[7]

The appellant argues that the Crown used unnecessarily vivid language in
    describing the appellant as a powder keg and out of control. These
    descriptors were open on the evidence. The Crown was not describing the
    appellants character or disposition, but rather making submissions as to how
    he was acting at the relevant time.

[8]

The appellant argues that the closing comment by the Crown in his
    argument was an impermissible appeal to the sympathy of the jury for the family
    of the deceased. The trial judge instructed the jury that considerations of
    sympathy or prejudice could not affect their deliberations or their verdict. We
    are satisfied that this instruction would overcome any improper comment made by
    the Crown.

The Self-Defence Instruction

[9]

The appellant submits that the trial judge erred in referring to aspects
    of self-defence other than the elements of the defence as defined in s. 34(2)
    of the
Criminal Code
, as it then read. The parties agreed that
    self-defence as defined in s. 34(2) was the only applicable section.

[10]

The trial judge thoroughly and properly instructed the jury on s. 34(2).
    He identified the three key elements of the provision and explained how each
    was to be considered by the jury. The trial judge made a single reference to
    proportionality as a rationale underlying the defence of self-defence in
    general.  He did not connect that comment to his instructions on s. 34(2). When
    the trial judge turned to that section, he broke the section down into its
    essential elements and described each correctly with no reference to
    proportionality. He made it clear that unless the Crown negated at least one of
    those elements beyond a reasonable doubt, the appellant was entitled to the
    defence. This was a proper instruction.  There was no risk that the jury would
    read proportionality into the defence as an element to be added to the three
    elements so carefully and repeatedly described by the trial judge.

Conclusion

[11]

The appeal is dismissed.

Alexandra Hoy A.C.J.O.

Doherty J.A.

K. Feldman J.A.


