COURT OF APPEAL FOR ONTARIO
LABROSSE, GOUDGE and BORINS JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
DONALD HART
Appellant
Murray H. Shore, for the appellant
Philip Downes, for the respondent
Heard: June 5, 2000
On appeal from his conviction by Madam Justice M. P. Eberhard, sitting with a jury, on October 13, 1995 and from the sentence imposed on December 8, 1995
LABROSSE J.A.:
[1] The appellant was convicted on twenty-two counts which arose out of three sets of offences. The counts dealt with the general activities of the appellant in the Orillia region and related to the theft and possession of explosives, the causing of an explosion of a bank and threats against a judge and a police headquarters. He pled guilty to seven of the counts relating to the theft and possession offences.
[2] The appellant, who has abandoned his appeal from the convictions arising out of the explosion of the bank, challenges the remaining convictions on the basis that the charge to the jury was inadequate with respect to (1) the manner in which the jury should assess the evidence (a “Miller”error), (2) the requirement of unanimity and (3) the concept of reasonable doubt (a “Lifchus error”). The appellant challenges six of the convictions on the basis of (4) an error in jury instructions on recent possession and (5) unreasonable verdict. The appellant also challenges the seven convictions on which he pled guilty, as well as two other counts, on the basis that (6) his entrapment application was improperly curtailed.
1. The Miller error
[3] The instruction to the jury, relating to the manner in which evidence is to be assessed, was less than perfect, keeping in mind that the instruction was given some four years after the decision of this court in R. v. Miller (1991), Source decision, 68 C.C.C. 517.
However, the Miller error is tempered by two specific instructions given by the trial judge after her instruction on pooling the evidence. The jury was instructed to consider all of the evidence in order to determine if the Crown had proved its case beyond a reasonable doubt. The jury was also warned about approaching the evaluation of the evidence in a piecemeal fashion. Furthermore, this was not a case where exculpatory evidence had to be considered. In these circumstances, considering the charge as a whole, we are not persuaded the Miller error would have left the jury with the impression that only the evidence accepted as true and reliable could be used on the application of reasonable doubt.
2. The unanimity requirement
[4] As seen in many of the cases where an error is said to have been made on the meaning of unanimity, the instruction in this case did not exclude the right of jurors to disagree upon the verdict. On the contrary, the instruction specifically referred to the right to disagree: “It is your right as jurors to disagree, but I know you will do your best to come to an agreement.” Accordingly, the jurors would not have thought that they were under an obligation to agree upon a verdict.
3. The Lifchus error
[5] On the meaning of reasonable doubt, the trial judge used two phrases that were disapproved of in Lifchus. The decision in Lifchus was rendered two years after the present case. However, the trial judge also used much of the phraseology approved in that decision. The instruction used by the trial judge conforms with similar instructions which have been held, by this court, not to give rise to a reversible error. In our view, on reading the charge as a whole, the jury would not have been under a misapprehension as to the correct standard of proof.
4. The recent possession instruction
[6] As a result of a question from the jury relating to one of the counts (the Hydro break-in) the trial judge recharged the jury. She adequately explained the doctrine of recent possession and reviewed the evidence relating to that count. In our view, there was no real risk that the jury would have misused the doctrine of recent possession in relation to other theft offences. In any event, we would have no hesitation in applying s. 686 (1)(b)(iii) of the Criminal Code on this issue.
5. Unreasonable verdict
[7] The ground of appeal based on unreasonable verdict relates to the threatening charges. The jury was properly instructed on the correct approach to their assessment of the nature of the appellant’s comments. There was evidence which could form the proper basis for the finding that the threats had been made. The verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
6. Improper curtailment of entrapment application
[8] While the trial judge was in error in restricting her consideration of entrapment to the evidence heard during the trial, we are not persuaded that the appellant was deprived of the ability to properly prove entrapment. Both at trial and on the entrapment hearing, the appellant provided his views extensively as to why he alleged entrapment. It is hard to see what more he could have said on that issue. Even if these views were not considered by the trial judge, we would do so, and apply the proviso. In addition, in our view, the exclusion of what was said from consideration would not have affected the disposition of this issue. Moreover, the evidence did not demonstrate that the conduct of the police officer had gone beyond normal police activities in an undercover operation. There was a proper basis, on the evidence, for the trial judge’s conclusion that “never have I heard evidence so compelling of an individual with a demonstrated and stated desire to commit criminal offences in general, and including the type of ” offences in question.
[9] We would, accordingly, dismiss the appeal against conviction. It should be said that the case against the appellant was overwhelming and we see no basis to doubt the correctness of the verdict.
[10] The appellant was sentenced to twelve years’ imprisonment. In detailed reasons for sentence, the trial judge recognized all the relevant principles and found that the most important factor, in this case, was the need to protect the public from the appellant’s dangerous fascination with explosives. We do not agree that she failed to give sufficient weight to the principle of totality. Although the appellant had never received a penitentiary sentence, he was no stranger to the judicial system. Given the seriousness of some of the offences, which included threats to life and property, which the trial judge found to be striking at the heart of the administration of justice, and an act of destruction of property, a lengthy sentence was required. While the total sentence may be at the high end of the range for these types of offences, we see no error which would justify interference by this court.
[11] Leave to appeal the sentence is granted and this appeal is also dismissed.
(signed) "J. M. Labrosse J.A."
(signed) "I agree S. T. Goudge J.A."
(signed) "I agree S. Borins J.A."
RELEASED: June 6, 2000