DATE: 20040114

DOCKET: C37501

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. GARFIELD EVANS (Appellant)

BEFORE: McMURTRY C.J.O., ABELLA AND BLAIR JJ.A.

COUNSEL: Richard Litkowski for the appellant Jamie Klukach for the respondent

HEARD & ENDORSED: January 13, 2004

On appeal from the conviction dated November 2, 2001 and sentence dated December 12, 2001 by the Honourable T. Archibald sitting with a jury.

A P P E A L B O O K E N D O R S E M E N T

[1] While there was some unfortunate editorial comments by Crown counsel during the cross-examination of the appellant, we do not believe that these comments affected the fundamental fairness of the trial.

[2] At no time did very experienced defence counsel seek a mistrial in relation to any comments by Crown counsel during the course of the trial.

[3] With respect to the appellant’s submission as to the alleged unfairness of the Crown’s closing address to the jury, it perhaps was inappropriate for Crown counsel to make a number of references to the appellant as being “a gun toting hot head”. However, the trial judge specifically instructed the jury that the Crown’s language was “inflammatory”, “inappropriate”, “intemperate” and indeed should be ignored and he further instructed the jury that the Crown counsel himself conceded this fact. While the trial judge did not make these comments early in his charge as requested by defence counsel, we are of the opinion that his instructions were adequate in the circumstances and defence counsel did not object to those instructions.

[4] In our opinion, the jury instructions given by the trial judge in total were very fair, comprehensive and adequately addressed the other concerns of the appellant in relation to the conduct of Crown counsel.

[5] Considering the evidence as a whole, we cannot conclude that the verdicts of the jury were unreasonable. Specifically, we do not find that there was any inconsistency between the verdict of second degree murder and the verdict of discharging a firearm with intent to wound.

[6] With respect to the sentence appeal, we are of the view that the trial judge was not required to accept the recommendation of five of the jurors and that the sentence does not reflect any error in principle.

[7] The appeal as to conviction is dismissed. Leave to appeal as to sentence is allowed but that appeal is dismissed.