R. v. Nazim

R. v. Nazim Collection Decisions of the Court of Appeal Date 1999-11-15 Docket numbers C29381 Judges Labrosse, Jean-Marc; Doherty, David H.; Abella, Rosalie Silberman Subject Criminal Decision Content DATE: 19991115 DOCKET: C29381 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. ABDUL NAZIM (Appellant) BEFORE: LABROSSE, DOHERTY and ABELLA JJ.A. COUNSEL: James Stribopoulos, for the appellant Mical Fairburn, for the respondent HEARD: November 12, 1999 On appeal from his conviction by Mr. Justice D. Ferguson, sitting with a jury, on January 19, 1998 and from the sentence imposed on March 11, 1998 ENDORSEMENT [1] The appellant was convicted of attempted murder by a court composed of a judge and jury. He appeals his conviction on the basis that the trial judge failed to instruct the jury on the defence of intoxication. [2] The offence arose out of an incident involving three persons: the appellant, the victim (Holder), and another man (Currie), during which the victim was stabbed in the abdomen by the appellant. [3] The appellant did not testify. The sole evidence respecting the appellant's consumption of alcohol came from the evidence-in- chief of the Crown witnesses Holder and Currie who were cross- examined at length about their own consumption of alcohol. However, they were not cross-examined about the appellant's alcohol consumption. There was no expert evidence about the effects of alcohol consumption. Moreover, as the Crown submits, the defence of intoxication was not relied upon by the defence and there is no suggestion that counsel did not act competently in the appellant's defence. [4] While it may be argued that there was some confusion as to the exact position taken by trial counsel with respect to intoxication at the outset of trial, his subsequent conduct makes it clear that he was not advancing this defence. His decision not to cross-examine the Crown witnesses regarding the appellant's beer consumption and the failure to object when the trial judge did not charge the jury on intoxication make it clear that drunkenness was not being advanced as a defence. In addition, the trial judge conducted an extensive pre-charge hearing during which defence counsel took the position that a "drunkenness" instruction was not necessary. [5] On the basis of the evidence, the appellant drank about eight beers between 7:00 p.m. and the stabbing of the victim which took place between approximately 10:00 p.m. and 3:48 a.m. the next morning. As stated earlier, the appellant did not testify about his condition and no expert evidence was led. In addition, there was no pre-offence or post-offence conduct to suggest that the appellant was intoxicated. [6] In our view, there was no air of reality to the defence of drunkenness in this case and a clear decision was made by the appellant not to advance this defence. The evidence was not such that it should override counsel's decision. [7] The appeal is dismissed. (signed) "J. M. Labrosse J.A." (signed) "Doherty J.A." (signed) "R. S. Abella J.A."