DATE: 20050513

DOCKET: C37555

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and - DONOVAN SPARKES (Appellant)

BEFORE:

GOUDGE, FELDMAN and JURIANSZ

COUNSEL:

Timothy E. Breen

for the appellant

Philip Perlmutter

for the respondent

HEARD:

March 9, 2005

On appeal from the conviction imposed by Justice Terrence P. O’Connor of the Superior Court of Justice dated October 3, 2001.

E N D O R S E M E N T

[1] On October 3, 2001, the appellant was convicted by a judge and jury on a charge of second-degree murder. He was sentenced to life imprisonment with parole ineligibility set at eleven years.

[2] On March 28, 2000, police were dispatched to the apartment building where the deceased resided with her husband. The appellant met them in the lobby where he admitted having stabbed the victim and possibly having killed her. At his trial, the appellant testified he acted in self-defence.

[3] The appellant challenges his conviction on the basis that the trial judge erred:

(a) in failing to declare a mistrial following the Crown’s opening address in which, it is alleged, the Crown presented facts rather than an outline of expected evidence, commented upon the appellant’s failure to tell police he had been attacked by the victim, and used inflammatory language;

(b) in ruling that if the appellant cross-examined the victim’s husband about her prior violent acts, the Crown would be permitted to cross-examine him on his criminal convictions for assault;

(c) in reversing his Corbett ruling, and allowing the Crown to cross-examine the appellant on his crimes of violence if the defence cross-examined the victim’s husband on his criminal record;

(d) in failing to leave the defence of provocation with the jury;

(e) in defining the intent required for murder; and

(f) in failing to give a rolled-up charge relating to both self-defence and intoxication.

Mistrial

[4] In refusing the appellant’s application for a mistrial following the Crown’s opening address, the trial judge noted that he had warned the jury that addresses are not evidence and stated his view that any prejudice could be overcome by his general instructions. In addition, he indicated he was prepared to give an immediate limiting instruction regarding one aspect of the Crown’s opening, and offered the defence the opportunity to make a full opening before the evidence commenced, while preserving the defence’s right to open to the jury again before a defence was called. Defence counsel accepted the invitation to open to the jury twice, but declined the offer of a limiting instruction.

[5] In our view, in these circumstances, it was within the trial judge’s discretion to decline to declare a mistrial.

Character Evidence

[6] At trial, the appellant indicated that he proposed to cross-examine the victim’s husband on the victim’s prior acts of violence to show she was the aggressor on this occasion. In response, the Crown applied for a ruling permitting it to lead evidence of prior threats allegedly made by the appellant against the victim and her husband five months earlier and details of his prior convictions for crimes of violence. The trial judge ruled that the Crown could not lead evidence of the prior threats, but that evidence of the appellant’s criminal convictions and their background would be admissible if the defence elicited evidence of the victim’s propensity for violence.

[7] In our view, the trial judge’s ruling struck an appropriate balance in ensuring the trial was fair. If the defence put forward the propensity for violence of the victim as helpful in resolving who the aggressor was, then the propensity for violence of the appellant could also be put forward to prevent leaving the jury with a distorted picture. The only issue is whether the probative value of evidence relating to the appellant’s character outweighed its prejudicial effect. Given that the appellant admitted stabbing the victim fifty-two times, we are of the view that evidence of his previous crimes involving considerably less violence would have been of limited prejudicial effect.

[8] The trial judge’s careful reasons indicate that he properly considered and applied the governing principles in deciding, as matter of fairness, the Crown could respond in kind to evidence the defence proposed eliciting. Moreover, as the defence decided not to raise the victim’s propensity for violence, the Crown was not permitted to lead evidence about the appellant’s crimes of violence. Thus, it cannot be said there is any risk that the conviction was based on propensity reasoning or moral prejudice.

Corbett Ruling

[9] Prior to the testimony of the victim’s husband, the trial judge ruled that the Crown could cross-examine the appellant on convictions for “drive over the 80” and breach of recognizance, but could not cross-examine him on criminal convictions involving violence. Later, when defence counsel indicated he might cross-examine the husband on criminal convictions for offenses of dishonesty, the trial judge expressed an inclination to reconsider his Corbett ruling, as it was based on the understanding that no Crown witnesses had criminal records.

[10] Defence counsel, without addressing this point, completed the cross-examination of the victim’s husband without making reference to his criminal record. Therefore, the trial judge was not called upon to rule on what effect, if any, defence cross-examination on the husband’s criminal convictions would have on the Corbett ruling. The defence could have pressed for such a ruling at trial, and not having done so, cannot raise the issue on appeal.

Provocation

[11] The trial judge correctly concluded that the defence of provocation had no “air of reality”. The appellant had testified that he had never lost control, but rather, that he had carefully measured his response to the victim’s attacks on him, only deciding to stab her once his other efforts to ward her off had failed.

[12] The trial judge was clearly aware of his obligation to put defences to the jury that arise on the record, regardless of whether they are sought by counsel. For example, he put the defence of intoxication to the jury as it had an “air of reality”, even though defence counsel had not raised it in his closing address.

[13] At the precharge conference, defence counsel did not request a charge on provocation and did not complain or object to its omission from the recharges. One may reasonably infer that defence counsel either agreed that a charge on provocation was not warranted on the record, or did not want one for tactical reasons.

[14] This ground of appeal fails.

Charge to the jury -- Intent

[15] The appellant submits that the trial judge improperly reduced the degree of knowledge required for murder under s. 229(a) (ii) by instructing the jury, at one point, that the question whether the appellant was reckless meant “whether he saw the risk that she could die from her injuries but went ahead anyway and took the chance.” [emphasis added]

[16] The single reference to the word “could” must be assessed in the context of the entire charge. In a portion of the charge immediately following this passage, the trial judge said “if [the appellant] did not mean to kill [the victim] or cause her bodily harm he knew would kill her and was reckless whether she died or not, then he committed manslaughter...” [emphasis added]. The trial judge repeated much the same thing several times in the charge and the recharges.

[17] Considering the charge as a whole, we are satisfied that the jury could not have misunderstood that conviction for murder required proof that the appellant either intended to kill or cause bodily harm that he knew would likely cause death.

Rolled-Up Charge

[18] We do not accept that the trial judge isolated the evidence of drug consumption and failed to give a rolled-up charge addressing intoxication and self-defence. The trial judge repeatedly made clear the importance of considering the evidence of drug consumption in relation to all aspects of intent and intoxication. Again, we observe that defence counsel did not make this objection to the charge, nor request any further instructions on self-defence and intoxication. In fact, the trial judge instructed the jury on intoxication even though defence counsel did not raise it. This ground of appeal also fails.

Conclusion

[19] For these reasons, the appeal is dismissed.

“S.T. Goudge J.A.”

“K.N. Feldman J.A.”

“R.G. Juriansz J.A.”