COURT OF APPEAL FOR ONTARIO
BORINS, SHARPE and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Russell Silverstein for the appellant
Respondent
- and -
QUINTIN DANVERS
Jamie Klukach for the respondent
Applicant/Appellant
Heard: February 24 & 25, 2005
On appeal from the conviction entered on May 21, 2003 and sentence imposed on June 6, 2003 by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury.
ARMSTRONG J.A.:
1Quinton Danvers appeals his conviction for second-degree murder after a trial before Justice Ewaschuk and a jury in Toronto. The appellant was sentenced to life in prison without eligibility for parole for 18 years. He also seeks leave to appeal the parole eligibility limitation.
BACKGROUND
2The alleged offence occurred in the early morning hours of Sunday, August 13, 2000 at the Guvernment nightclub located in downtown Toronto. Howard Gairy, the victim of the killing, was a security employee of the nightclub.
3The main witness for the Crown, Goldy Kang, was a security supervisor at the nightclub. Kang was on duty with Gairy in the Orange Room of the nightclub at about 2:00 a.m. early Sunday morning. The Orange Room has a large dance floor and two bars. Kang estimated that there were 400 to 500 people in the room at the time of the killing.
4Kang observed the victim Gairy involved in some kind of commotion in the Orange Room and he approached him to find out what was going on. Gairy was engaged in a discussion with a male patron of the club whom he was requesting to leave the premises.
5Gairy asked the patron to leave the premises several times but he refused. Just as Gairy attempted to grab the patron, Kang heard a pop or a “firecracker” sound. Kang testified that he turned to his left and saw the appellant with a gun in his hand. The appellant was about six feet away. After the initial pop, Kang heard and saw three more shots fired by the appellant.
6Kang was able to see the appellant’s face, arm and upper body. Kang observed that the appellant was dressed in a short-sleeved red and black striped shirt that was not tucked into his baggy jeans or cargo-type pants. The appellant was about five feet, eight inches tall, of very thin build and his hair was styled in corn rows.
7Kang testified that he continued to look at the appellant as he fired the shots although he averted his glance for a split second to Gairy as Gairy fell backwards.
8Kang testified that he saw the appellant tuck the gun inside the front of his pants and then put his shirt over his pants to hide it. Kang observed that the appellant was approached by two other patrons after the shooting and as they left the area they appeared to come together and engage in some kind of shuffling activity with their hands. It is the theory of the Crown that the gun was passed off by the appellant during this encounter.
9Kang followed the appellant and the other two men out of the Orange Room. Kang grabbed the appellant with the assistance of other security staff. The appellant was wrestled to the ground on the sidewalk outside the club.
10The police arrived at the scene at 2:08 a.m. The appellant was searched and no gun was found. He was then taken to the police station and subsequently to the hospital where he received some medical attention.
11Two .380 calibre cartridge cases were found in the Orange Room. No gun was ever recovered. Gunshot residue (GSR) was found on the appellant’s left hand and some of his clothing – including his jeans and boxer shorts. No GSR was found on his right hand.
12The case against the appellant consisted essentially of the eyewitness evidence of Kang, corroborated by the presence of GSR on the appellant’s person and clothing. The appellant’s defence was that this was a case of mistaken identification. In respect of the GSR on his person, the appellant’s position was that he had attracted it because he was close to the shooting and by reason of secondary transfer from others. The appellant did not testify in his own defence.
GROUNDS OF APPEAL
13The appellant raises the following grounds of appeal in respect of conviction:
The trial judge improperly intervened during the cross-examinations conducted by counsel for the appellant.
The trial judge erred in ruling inadmissible certain statements of the appellant made at the time of his apprehension.
The trial judge erred in his charge to the jury on identification evidence.
The trial judge erred in his charge to the jury regarding a statement made by the witness Kang as he apprehended the appellant.
The trial judge erred in his charge to the jury in his review of the GSR evidence.
The trial judge erred in his charge to the jury in respect of the use of Kang’s video statement to the police.
The trial judge erred in his charge to the jury in respect of the burden of proof.
The trial judge erred in his response to questions from the jury concerning their role.
14In respect of sentence, the appellant asserts that the 18-year parole eligibility limitation was harsh and excessive.
1. The trial judge’s interventions
15Most of the appellant’s complaints concerning the interventions made by the trial judge relate to interventions made during the cross-examination of Kang. To a lesser extent, the appellant takes issue with interventions made by the trial judge during the cross-examinations of the witnesses Brent Weller and Young-Ho Hwang.
16In respect of Kang, counsel for the appellant at trial attempted to establish:
(i) Kang was the sort of individual who said he was certain when he was not;
(ii) Kang had given inconsistent versions of what he said he saw after the shooting;
(iii) Kang had changed his narrative from believing that the “shooter” fled along the west side of the long bar in the Orange Room to claiming to be sure of it;
(iv) the difference between “not really losing sight of the shooter” and being “sure” that he never lost sight of the shooter;
(v) Kang had twice described the shooter’s shirt as red and white at the preliminary hearing; the appellant’s shirt was red and black;
(vi) the effect the commotion had on Kang’s ability to perceive and recollect events – Kang had testified that he saw the deceased fall where he was shot, yet the deceased was found in the next room.
17Counsel for the appellant submits that on several occasions, the trial judge intervened and prevented defence counsel from developing the above issues, which were important to the reliability of Kang’s testimony. Counsel further submits that the trial judge suggested answers to the witness or entirely shut down areas of cross-examination.
18The cross-examination of Kang was lengthy, detailed and repetitive. The cross-examination occupied almost 200 pages of transcript. When counsel did not get the answer he wanted, he pursued the witness with repetitive questions. Defence counsel often put his theory of the witness’s reliability to the witness himself – with negative results.
19There were some instances during the cross-examination of Kang where the trial judge intervened with comments that were unnecessary, irrelevant and unfortunate. However, when the cross-examination is reviewed as a whole, the interventions of the trial judge take on less significance than when read in isolation. In some instances, the trial judge simply told defence counsel to move on where it is clear that there was nothing more to be gained by further questions. In some instances, the trial judge curtailed questions that were suggestive of argument to be made to the jury in closing. On other occasions, the trial judge intervened to clarify the answer given by the witness.
20During the cross-examination of the witness Hwang, the nightclub’s head of security, the trial judge made a gratuitous comment that suggested the gun (the murder weapon) had been taken into the nightclub by a girlfriend – presumably the girlfriend of the appellant. Also during the Hwang cross-examination, the trial judge interfered with defence counsel’s effort to explore his description of Kang’s demeanour as hysterical rather than excited. In my view, although unnecessary, neither intervention did any damage to counsel’s cross-examination.
21In respect of the witness Weller, the trial judge cut short defence counsel’s cross-examination concerning evidence he gave at the first trial that was inconsistent with his current testimony. After reviewing the transcript of the Weller cross-examination, I cannot agree that there was any improper intervention by the trial judge.
22In the much cited case of R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), Martin J.A. said at pages 230-232:
The judge has the duty to ensure that the accused is afforded the right to make full answer and defence, but he has the right and the duty to prevent the trial from being unnecessarily protracted by questions directed to irrelevant matters. This power must be exercised with caution so as to leave unfettered the right of an accused through his counsel to subject any witness’s testimony to the test of cross-examination. The judge must not improperly curtail cross-examination that is relevant to the issues or the credibility of witnesses, but he has power to protect a witness from harassment by questions that are repetitious or are irrelevant to the issues in the case or to the credibility of the witness…
The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial: see Brouillard v. The Queen (1985), 1985 56 (SCC), 17 C.C.C. (3d) 193, 16 D.L.R. (4th) 447.
23While some of the interventions by the trial judge were regrettable and ought not to have been made, when reviewed in the context of the whole record, I am not persuaded that a reasonably minded person would consider that the accused had not received a fair trial. I am satisfied that defence counsel was able, admittedly sometimes with difficulty, to make his points and accomplish what he set out to do with the witnesses under cross-examination.
24Accordingly, I would not give effect to this ground of appeal.
2. The statements made by the appellant at the time of apprehension
25At the preliminary hearing Kang testified that when he first grabbed the appellant after the shooting, he resisted both physically and verbally. The appellant’s words, according to Kang, were as follows:
What are you doing? What are you grabbing me for? What are you doing?
26Counsel for the appellant at trial sought to elicit the above statements made by the appellant during the cross-examination of Kang. Counsel submitted that the statements were necessary to explain the appellant’s physical resistance. The trial judge ruled the statements inadmissible:
Traditionally an accused’s statement made after the fact has been characterized as being self-serving and therefore exclusionary. In this case the accused’s statement was made after he apparently had passed his gun to a cohort. Thus the words are not part of the res gestae of the shooting. Indeed his words constitute a self-serving statement. (See R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.) at 182.)
In the end I am satisfied that the prejudicial effect of this evidence outweighs its minimal probative value.
27On this appeal, the appellant submits that his struggle with Kang, while being apprehended, might have been interpreted by the jury as significant consciousness of guilt. The jury would have expected the appellant to proclaim his innocence upon being unjustly apprehended. The evidence was clearly relevant and probative and should have been admitted.
28I am unable to accept this submission. It was open to the trial judge to conclude that the appellant’s utterances were self-serving and did not form part of the res gestae. The Crown at trial did not rely on the appellant’s physical struggle as evidence of consciousness of guilt and expressly asked that the evidence not be put to the jury on that basis. In these circumstances, it was within the trial judge’s discretion to conclude that the prejudicial effect of this evidence outweighed its probative value and I see no ground for appellate interference on this point.
3. The trial judge’s charge to the jury on identification evidence
29The appellant raises a number of points under this heading as follows:
(i) The reliability of the identification by Kang was subject to the frailties commonly associated with eye witness identification. The trial judge failed to give the jury adequate instructions.
(ii) The judge’s reference to the frailties of Kang’s evidence was largely contained in his synopsis of the defence theory. The only reference to the identi-fication evidence independent of the defence theory was loaded against the defence. The appellant took particular objection to the following instruction to the jury by the trial judge:
I also wish to point out that the finding of gunshot residue on the accused’s boxer shorts would absolutely confirm, repeat, would absolutely confirm the reliability of Goldy Kang’s identity of the accused as the shooter but only if you reject as untrue defence counsel’s explanation or submis-sion that the gunshot reside particles came to arrive on the boxer shorts not from the accused having put his gun there after the discharge but either from gunshot residue particles on the interior of the accused’s pants or from gunshot residue found on Constable Rodeghiero’s leather gloves when he handled the boxer shorts.
(iii) The jury asked the trial judge to tell them what factors they should consider in making their decision. The trial judge answered their request by repeating principal parts of his charge including his instructions on the burden of proof and the credibility of the witnesses. Defence counsel requested the trial judge to include in his answer reference to the proper approach to identification evidence. The trial judge refused other than to tell the jury that the identity of the killer was in issue in the case.
30I agree with the submission of counsel for the respondent that this was not a typical case of eye witness identification with the witness claiming to identify an accused based on the recollection of the appearance of the accused on an earlier occasion. Here, the identification of the appellant by Kang was based on his claim that he did not lose sight of the appellant from when he saw the appellant shoot Gairy until his capture. His identification of the appellant did not depend on his ability to observe and remember the personal characteristics of the appellant on some future occasion.
31In any event, in his instruction to the jury on the issue of eye witness identification, the trial judge did make express reference to the inherent frailty of such evidence:
Identification evidence is generally considered to be frail in nature depending on the mere opinion of a person as to the identity of another stranger or another person he or she may have seen but for a short period of time, perhaps only for seconds or even for only a fleeting glance. Because of the inherent frailty or weakness of identification evidence and acknowledged mistakes witnesses may have made in the identifications of strangers or even a person they know, it is necessary to keep in mind that the witness may be honestly attempting to tell the truth but may be objectively mistaken as to his or her evidence. Thus, you must keep in mind that the witness may be sincere and credible but may nonetheless be unreliable in his or her evidence. For that reason, you must carefully assess the witness’ testimony, in this case Goldy Kang, to determine not only if the witness is sincere in his evidence but also whether the witness is objectively correct in that evidence. In other words, does the witness’ evidence accurately reflect truth in the sense that it correctly reflects objective reality?
32The trial judge also did a thorough review of the identification evidence. I do not consider that his instructions treated the appellant unfairly.
33In respect of the question asked by the jury, the trial judge concluded that they were not specifically asking for further instructions on the issue of identification. I see no error in that regard. After the trial judge responded to the jury, he told them that if he had not answered their concerns, they should make a further request. They did not do so.
34Accordingly, I would not give effect to this ground of appeal.
4. The charge to the jury on the statement made by Kang as he apprehended the appellant
35As Kang was apprehending the appellant, he identified him as the killer. The trial judge charged the jury in respect of Kang’s statement as follows:
The Crown relies on Goldy Kang’s prior out of court statement made at the very moment he captured the accused, Quintin Danvers, in the south corridor of the Orange Room as enhancing Mr. Kang’s credibility. Young-Ho Hwang, the head of security, testified that at the time of the accused’s capture, moments after the shooting, Goldy Kang was yelling, “This is the guy. This is the guy who did the shooting.” I reiterate that the prior out of court statement is admissible not to prove the truth of its contents but only to aid you in your assessment of Goldy Kang’s credibility as a witness. In this statement he identified the accused as the shooter within one to two minutes of the shooting. Parenthetically I would add that Goldy Kang’s in court identifications of the accused at this trial as the shooter has [sic] no evidentiary value whatsoever. What is important is your assessment of Goldy Kang’s identification of the accused immediately after the shooting and your determination of whether or not it enhances his credibility as a witness before you.
36Counsel for the appellant submits that the above instruction was erroneous in that the trial judge confused reliability and credibility. The appellant did not challenge Kang’s credibility and accepted that he honestly believed that the appellant was the killer. In the appellant’s submission, Kang was simply horribly mistaken and therefore his statement to the effect that the appellant was the killer was irrelevant.
37In response to the objection by counsel at trial to the above instruction, the trial judge said:
You’re saying he got the wrong man and that he’s not right. This is confirmatory of at least his belief he got the right man at the time…Doesn’t matter if you put it in issue. It’s a bald fact that it is supportive, that he identifies him within sixty to ninety seconds or so of the shooting.
38While it may have been preferable for the trial judge to have clarified the defence position to explain that the defence was not challenging the honest belief of Kang, I do not find that the trial judge erred in failing to do so.
5. The trial judge’s charge to the jury and his review of the GSR evidence
39The appellant’s position in respect of the GSR found on his person and clothing was that it was deposited in three ways:
(i) he was within range of the shooting and would have been covered with GSR;
(ii) he was manhandled by Goldy Kang who was close to the greatest concentration of GSR when the gun was fired; and
(iii) his clothing and underwear were handled at the hospital by both police and medical personnel; the police officer in question was wearing leather gloves and testified that he may have worn latex gloves at the hospital.
40The appellant submits that in the charge to the jury, the trial judge made a number of errors which seriously undermined the appellant’s case as follows:
(i) The expert witness, Edward Sild, testified that he had never seen a case of gun shot residue particles found on underwear. In fact, Sild testified that he could not recall writing a report where he found GSR on underwear.
(ii) Sild testified that leather is a poor attractor of GSR particles because it is smooth. Sild did not so testify.
(iii) The expert witness, Michael McVicar, testified that leather or vinyl are not good surfaces from which to transfer GSR. McVicar did not so testify. The trial judge made a somewhat similar statement about McVicar’s evidence in the re-charge.
(iv) The fact that only two GSR particles were found on the interior of the accused’s pants as opposed to eleven being found on his boxer shorts may be particularly significant. There was no evidence to support this statement.
(v) During the recharge, the trial judge said that Mr. Sild testified that he would expect to find a trail of a diminishing number of GSR particles the further away secondary transfers are made from the initial deposit of the GSR. Sild in fact testified that he could point to no scientific data to support this view but that was his belief.
41The above submissions have to be considered against the background that defence counsel made specific objections to the judge’s charge in respect of the GSR instructions. The trial judge read his proposed recharge to counsel. Although Crown counsel had some objections to the proposed recharge, defence counsel submitted that the jury should be re-charged as proposed and that the judge’s description of the evidence was “an accurate assessment”. The trial judge recharged the jury as proposed. There was no objection from defence counsel.
42In my view, the objections which the appellant now makes in respect of the judge’s instruction on the GSR evidence are not of great consequence.
43The distinction between never having seen a case of gunshot residue particles on underwear and not being able to recall writing a report describing such a finding is largely a distinction without a difference.
44While McVicar did not expressly testify that leather or vinyl are not good surfaces from which to transfer GSR, he did say that smooth surfaces like leather have less attractive capability.
45In respect of the significance of the lesser number of GSR particles found on the interior of the appellant’s pants as opposed to his boxer shorts, Mr. Sild testified that it was unlikely that the appellant’s pants would retain a lesser quantity of GSR particles than the boxer shorts if the pants were the original source of the particles.
46Although Mr. Sild agreed that there was no scientific data to support his view that when GSR particles are transferred one would expect to find a trail of diminishing numbers, I agree with the submission of the respondent that it would be counter-intuitive to expect to find otherwise.
47While the trial judge may have made minor mistakes in the detail of the expert evidence concerning the disposition of the GSR particles, I am not satisfied that any such mistakes were detrimental to the case for the defence. The theory of the defence was that the GSR particles were transferred to the appellant’s clothing and person by means other than the appellant firing the murder weapon and placing it in his boxer shorts or pants. That case was fairly put to the jury by the trial judge.
48Accordingly, I would not give effect to this ground of appeal.
6. The trial judge’s charge to the jury in respect of the use of Kang’s video statement to the police
49Goldy Kang was cross-examined on his videotaped police statement by reference to excerpts from the transcript. Counsel for the Crown at trial played a brief excerpt of the video during Kang’s re-examination. The jury asked the following questions:
Can we see the videotape interview of Goldy at the police station in its entirety? If not in its entirety, specifically regarding hand of shooting and other credible points of concern upon immediate recall of events. We saw it in court, but it is not in the evidence box.
50The trial judge responded to the above request as follows:
You are now about to see Goldy Kang’s videotape but only those portions shown to him in court during the trial proper. That is the rule. You cannot see any more now than you did before because the videotape did not become an exhibit in front of you. However, I would remind you that other portions of Goldy Kang’s videotaped statement, this is the one made three hours after the event, were put to him during cross-examination by Mr. Silverstein and are available for readback by the court reporter if you so choose. The videotape statement was not admissible at the instance of the Crown. I repeat, the videotape statement was not admissible at the instance of the Crown - - you have to see the witness instead, not the videotape statement - - but was admissible in part only at the instance of the accused in cross-examination and only for rehabilitative purposes by the Crown in re-examination on the areas touched upon by the defence counsel in cross-examination; that is those portions that you actually saw. So you are now about to see what you actually saw in court, and that is all you will be permitted to see. That is the rule unfortunately.
51Counsel for the appellant raises three objections to the judge’s above response:
(i) The trial judge should not have limited the response to the excerpt that was played to the jury in the re-examination of Kang. He should have read back to the jury all excerpts from the transcript which the jury heard.
(ii) The trial judge’s observation that only the appellant had the right to show the video during the evidence was prejudicial. Such observation invited the jury to draw an adverse inference against the appellant for not playing the entire videotape.
(iii) The trial judge erred in not reminding the jury of the limited use of prior out-of-court statements.
52The jury had asked to see the videotape in its entirety which both counsel and the trial judge agreed would be inappropriate. In the alternative, the jury asked to see the video “regarding hand of shooting and other credible points of concern upon immediate recall of events”. The excerpt played for the jury was relevant to Kang’s recollection of which hand the shooter used to fire the gun.
53In respect of the excerpts of the Kang video statement read during the cross-examination, the trial judge indicated that they were available for “readback” by the court reporter if the jury wished to hear them. The jury made no further request.
54In my view, the judge’s reference to why the jury could not see the entire video was of no moment.
55I find no error in the trial judge’s response to the jury’s request to view the videotape.
7. The trial judge’s charge on the burden of proof
56When the trial judge was distinguishing between proof beyond a reasonable doubt and proof on a balance of probabilities, he instructed the jury as follows:
Proof on a balance of probabilities is attained at fifty-one percent of possibility whereas proof to a certainty is attained at one hundred percent possibility. Proof beyond a reason-able doubt falls much closer to certainty than it does to proof on a balance of probabilities. However, it is important to keep in mind that it is rarely possible to prove anything with absolute or mathematical certainty, and so the burden of proof on the Crown is to prove guilt beyond a reasonable doubt but not beyond any conjectural or speculative doubt whatsoever. Thus, the Crown is not compelled to prove guilt to the impossible degree of proof to a certainty. In the end, proof of guilt beyond a reasonable doubt equates to the absence of reasonable doubt as to the accused’s guilt.
57The appellant submits that in the above instruction, the trial judge equivocated and confused the concepts of “certainty” and “absolute certainty”. He further submits that the Supreme Court of Canada in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) at para. 34 equates proof beyond a reasonable doubt to certainty. The appellant argues that the trial judge’s charge leaves it open to the jury to conclude that the Crown need not prove the guilt of the accused to a “certainty”. A juror who felt “almost certain” of the guilt of the appellant would have convicted him.
58While it may have been preferable for the trial judge to have avoided the use of the word certainty without the modifier “absolute” or “mathematical”, I do not accept that this instruction constitutes reversible error. When the paragraph is read as a whole, it is apparent that the trial judge in his reference to “certainty” is talking about “absolute” or “mathematical” certainty.
8. The trial judge’s response to the jury’s question concerning their role
59As referred to earlier in these reasons (para. 29 (iii)), the jury asked the trial judge to tell them what factors they should consider in making their decision. The trial judge responded as follows:
Thus, your approach is essentially twofold. First, you must evaluate the evidence in a global fashion in an attempt to determine the truth of the case. In so doing, you may make findings of fact from the whole of the evidence which favours the Crown and tends to prove guilt. Conversely, you may make findings of fact from the whole of the evidence which favours the accused or at least leaves you in a state of reasonable doubt on essential matters which tend to indicate that the Crown has failed to prove guilt beyond a reasonable doubt.
Second, you must relate your evaluation of the whole of the evidence and findings of fact to the essential matters in this case. You must thus determine whether the Crown has proven beyond a reasonable doubt that the accused was the person who shot Howard Gairy and that at that time he had one of the two requisite intents to commit murder. Thank you very much.
60The appellant submits that the above instructions leave the clear impression that reasonable doubt can only be arrived at through findings of fact. It negates the possibility that reasonable doubt can be arrived at through the inability of the jury to make findings of fact or from evidence that the jury does not accept.
61Included in the above portion of the judge’s charge is the instruction: “you may make findings of fact from the whole of the evidence which favours the accused or at least leaves you in a state of reasonable doubt on essential matters which tend to indicate that the Crown has failed to prove guilt beyond a reasonable doubt.” Although this statement may not be a model of clarity, it suggests that the jury may not be able to determine the facts of the case with the requisite certainty and thereby be left with a reasonable doubt of the guilt of the accused. This notion was supported by the judge’s charge on reasonable doubt when he told the jury that a reasonable doubt may arise from the lack of evidence. Reading the trial judge’s instructions to the jury as a whole, I am not persuaded by the appellant’s submission that the jury was improperly instructed on their fact-finding role.
THE SENTENCE APPEAL
62The appellant appeals the parole eligibility increase to 18 years on the basis that it is harsh and excessive and that it is based upon insufficient evidence to support many of the aggravating factors found by the trial judge.
63The recommendations of the jury in respect of parole eligibility were one juror for 10 years, three jurors for 20 years and 8 jurors had no recommendation. During the sentencing submissions, counsel for the appellant agreed that there should be an increase in parole eligibility and suggested 12 to 13 years. Crown counsel at trial submitted that parole eligibility should be increased to 20 years.
64The appellant was 19 years old at the time of the offence. He is the second of seven children born to a single mother who was 17 years old at the time of the appellant’s birth. His father has never been a significant factor in his life. The appellant quit school at the age of 14 and became involved as a user and seller of marijuana.
65The appellant has no employment record. At the time of the offence, he was the father of a 10-month old son.
66The appellant’s criminal record prior to this offence spans a period of time between June 1997 and May 2000. There are 14 previous convictions, 11 of which are youth court convictions. Two of the offences are for drug trafficking. There are 6 weapons convictions. Counsel for the appellant at trial advised that the weapons offences involved replica guns. There is a conviction for assault with intent to resist arrest. There are convictions for failing to attend court, failing to comply with a disposition under the Young Offenders Act (2 convictions), failing to comply with a recognizance and failing to comply with a prohibition order.
67At the time of the offence, the appellant was on probation and subject to two orders prohibiting the possession of firearms. This matter was his 15th conviction.
68As to the circumstances of this tragic killing, it is clear that the victim, Howard Gairy, was simply doing his job on his last night of work before returning to university and a football scholarship at Michigan Tech University.
69The appellant attended the Guvernment nightclub in the early hours of August 13, 2000 armed with a lethal weapon – a loaded handgun. He fired the gun in a room filled with 400 to 500 people.
70The trial judge in sentencing the appellant described the murder as “motiveless, impulsive and senseless involving gratuitous violence by an armed drug dealer”.
71The trial judge further stated:
As for the accused’s character, his criminal record demonstrates that the accused has been a career criminal from a young age to the time he murdered Howard Gairy at the youthful age of nineteen years. He has been convicted of 14 criminal offences, including various drug and gun offences. It appears that the accused has made his living as a drug dealer and has no work record. At the time of the murder, the accused was subject, as stated earlier, to two court orders not to possess any firearms. The accused was an armed, dangerous drug dealer.
72The appellant submits that the trial judge placed far too much emphasis on certain aggravating factors which were not supported by the evidence. In particular, the appellant takes issue with the trial judge’s description of him as a “career criminal” with “various drug and gun offences” on his record. The appellant also takes issue with the trial judge’s description of him as “an armed, dangerous drug dealer”.
73There is no question that the aggravating factors in this case are horrible. The trial judge in his reasons for sentencing has captured them and properly described this murder as “motiveless, impulsive and senseless involving gratuitous violence”.
74That said, I find that the record before the court does not support his characterization of the appellant as an “armed, dangerous drug dealer”. There is no evidence that drugs were involved in the commission of this offence. The only convictions for trafficking in the appellant’s record are for trafficking in a narcotic and trafficking in a Schedule I substance under the Controlled Drugs and Substances Act. The only other relevant evidence is the admission made by his counsel in sentencing submissions that the appellant began selling marijuana at age 14. In my view, it is more than a stretch to conclude on this evidence that the defendant was an armed and dangerous drug dealer. Such characterization involves a misapprehension of the evidence and therefore constitutes an error in principle.
75The trial judge’s conclusion that the appellant was an armed and dangerous drug dealer appears to have been a significant aggravating factor in arriving at the 18 year parole eligibility limitation.
76In my view, given the youth of this offender, the increase in parole eligibility to 18 years is excessive. The appellant would not be eligible for parole until he was nearly 40 years of age. I conclude that a more appropriate parole eligibility increase is an increase to 15 years.
77In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:
It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.
78There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed. I am satisfied that in this case, the mandatory life sentence with an increase in parole eligibility to 15 years satisfies that concern.
DISPOSITION
79For the above reasons, I would dismiss the appeal from conviction. In respect of sentence, I would grant leave to appeal and reduce the parole eligibility to 15 years.
RELEASED:
“AUG 25 2005” “Robert P. Armstrong J.A.”
“SB” “I agree S. Borins J.A.”
“I agree Robert J. Sharpe J.A.”
MEMORANDUM
RE: R. v. Q.D. C40720
DATE: October 27, 2005
The above-mentioned judgment was released on August 25, 2005. Paragraph 66 (page 22) refers to the Youth Court Act; it should read the Young Offenders Act.
