



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stubbs, 2018 ONCA 1068

DATE: 20181220

DOCKET: C62157

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raleigh Stubbs

Appellant

Catriona Verner and Eva Taché-Green, for the appellant

Karen Papadopoulos, for the respondent

Heard: December 18, 2018

On appeal from the conviction entered by Justice Patrick
    J. Flynn of the Superior Court of Justice, sitting without a jury, on October
    21, 2015 and the sentence imposed on November 2, 2015.

REASONS FOR DECISION

[1]

Following a jury trial, the appellant was convicted of second degree
    murder. The trial judge imposed a sentence of life imprisonment with parole
    ineligibility of 13 years. The appellant appeals the conviction and the
    sentence.

[2]

In the early morning hours of September 15, 2013, the appellant stabbed
    and killed 18-year old David Pereira.

[3]

About an hour before the stabbing, the appellant and the deceased, as
    well as some of the deceaseds friends, had been involved in a brief
    altercation near the appellants apartment building. During the altercation,
    one of the deceaseds friends had kicked the appellant in the head.

[4]

Inside a neighbours apartment, the appellant, who was described by the
    neighbour as annoyed and agitated, asked the neighbour to call 911. The
    neighbour refused. The appellant went to his own apartment and called 911. Two
    police officers arrived quite promptly. The appellant made a number of agitated
    and aggressive comments to both the 911 dispatcher and the police officers,
    including the need to have a weapon for situations like this.

[5]

The police officers asked the appellant if he wanted to go with them and
    try to identify the men who assaulted him; he said no. The police advised him
    to stay in his apartment and avoid any altercations.

[6]

The appellant returned to the neighbours apartment. Eventually, she
    told him to go to bed. The appellant and another friend left and went upstairs
    to their apartments on the fifth floor. In the hallway, the appellant showed
    this neighbour his fathers knife which, he said, he had been carrying since
    his father died three months before.

[7]

The appellant went back outside and walked the short distance back to
    the entertainment district where he had been earlier in the evening. When he
    got close to this area, he took the knife out of his pocket, opened the blade,
    and tucked it inside the sleeve of his hoodie.

[8]

The appellant and the deceased encountered each other near a local Tim Hortons.

[9]

The appellant testified that the deceased said theres the fuckin goof,
    that he tried to run away but got knocked into the bushes, and that he got up
    and pointed the knife at the deceased and next thing you know, the blades in
    Davids chest.

[10]

The
    deceaseds friend Juan Perez testified that the appellant collided with the
    deceased, said nothing, and stabbed the deceased, all within 15 seconds. An
    independent witness, April Tykoliz, described a similar scenario, lasting a
    couple of seconds.

[11]

The
    appellant was arrested within minutes. While en route to the police station, he
    told the arresting officer I got into a fight with him earlier. I took my
    dads knife and I shanked him.

[12]

The
    appellant was charged with first degree murder and convicted of second degree
    murder.

Conviction appeal

[13]

The
    appellant advances three grounds of appeal.

[14]

First,
    the appellant contends that the trial judge erred by failing to leave the
    defence of provocation with the jury. The appellant testified about both a
    wrongful act (the deceased raised his fist after they collided) and an insult
    (theres the fuckin goof) from the deceased. These, he argues, might have
    deprived him of his power of self-control.

[15]

We
    do not accept this submission. Crucially, experienced defence counsel anchored
    the appellants case in self-defence, and nothing else. Indeed, in his opening
    address to the jury he said: This is not a case about revenge; this is a case
    about self-defence. This is a case about a 49-year old man who protected
    himself. In his closing address to the jury, he reiterated this position:
    Raleigh, on the morning of September 15, 2013, until today, has made it very
    clear that he acted in self-defence.

[16]

In
R. v. Luciano
, 2011 ONCA 89, at para.
76, Watt
    J.A. acknowledged that there may be many reasons why counsel might not ask for
    a defence to be left with the jury, adding that such decisions are often laced
    with tactical and practical considerations. Incompatibility with a primary
    defence. Presumed risk of a compromise verdict. An unpalatable alternative in
    the circumstances disclosed by the evidence. Here, the defences of
    self-defence and provocation might well have been incompatible and the defence
    of provocation might have elevated the possibility of a compromise
    manslaughter verdict. It is not for this court to speculate about experienced
    counsels choices in mounting a defence in a serious criminal case.

[17]

Moreover,
    and by way of final comment on this issue, we agree with the respondent that
    there is no air of reality to the defence of provocation on the facts of this
    case. If the alleged provocation is the attack on the appellant about an hour
    before he stabbed the deceased, in that interval the appellant had visited
    friends in his apartment, called and met the police who told him to stay in his
    apartment, and declined the police officers offer to ride with them and try to
    find his assailants. If the alleged provocation is what happened at Tim Hortons
     the deceased saying theres the fuckin goof and the deceased raising his
    fist  these hardly justify an immediate and brutal stabbing about 10.5
    centimeters into the deceaseds body. The deceaseds acts, as described by the
    appellant, if they occurred, would not be sufficient to deprive an ordinary
    person of self-control.

[18]

Second,
    the appellant submits that the trial judge erred by failing to provide the jury
    with a rolled-up charge incorporating the evidence of self-defence, provocation
    and intoxication into his discussion of the appellants state of mind.

[19]

We
    disagree. Again, the appellants case was focused on self-defence. He did not
    seek a rolled-up charge at trial and did not seek to have provocation and
    intoxication included in the jury charge.

[20]

The
    trial judges instructions on the requisite intent for murder tracked the
    evidence relied on by the parties and told the jury to consider all matters
    relevant to the appellants state of mind as they related both to self-defence
    and the intent required for murder. Defence counsel emphasized the evidence
    relating to the appellants fear and his right to defend himself. He made no
    reference to intoxication or any loss of self-control as a result of the
    deceaseds conduct.

[21]

Third,
    the appellant asserts that the trial judges charge was unbalanced, tilting
    towards the Crown.

[22]

In
    our view, there is no basis for this submission. The trial judge worked very
    hard with counsel on the jury charge. He encouraged them to make suggestions
    and emphasized that he wanted to work together to make the jury charge right.
    There was no objection to the charge. Although this is not determinative, it
    supports a conclusion that the words used by the trial judge were appropriate
    in the circumstances of the case:
R. v. Dooley
, 2009 ONCA 910, at
    para. 31.

Sentence appeal

[23]

The
    appellant contends that the trial judge made three errors in imposing a period
    of parole ineligibility of 13 years as part of the sentence.

[24]

First,
    the appellant submits that the trial judge erred by concluding that the
    appellant armed himself after he was attacked an hour prior to the stabbing and
    that this was an aggravating factor. The only evidence on this issue was the
    appellants testimony that he always carried the knife.

[25]

We
    are not persuaded by this submission. The relevant facts are that the appellant
    left his apartment with the knife after refusing the police officers offer to
    join them in a search for the assailants and, shortly before he arrived at Tim
    Hortons, he opened the blade and concealed the knife inside the sleeve of his
    hoodie.

[26]

Second,
    the appellant asserts that the trial judge erred by failing to treat the
    evidence that the appellant had been provoked and/or had acted in self-defence
    as mitigating.

[27]

We
    disagree. Provocation was not a live issue at trial and the jury rejected self-defence.
    The trial judge was bound by that finding.

[28]

Third,
    the appellant contends that the trial judge erred by focussing on the
    appellants lack of remorse in the hours after the stabbing when he knew that
    his victim was dead.

[29]

It
    would have been preferable if the trial judge had dealt with remorse in a
    post-conviction framework. However, we cannot say that this single omission
    should offset the otherwise comprehensive reasons he advanced in support of the
    13 year parole ineligibility period, which was a fit sentence.

Disposition

[30]

The
    appeal is dismissed.

J.C.
    MacPherson J.A.

G.
    Pardu J.A.

David
    Brown J.A.


