COURT OF APPEAL FOR ONTARIO
Laskin, Cronk and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Joan Kayrangay Samuels
Respondent
Karen Shai, for the appellant
Leslie Maunder, for the respondent
Heard: April 24, 2009
On appeal from the acquittals by Justice Alison Harvison-Young of the Superior Court of Justice, sitting with a jury, on February 29, 2008.
A. INTRODUCTION
1After an altercation in a parking lot, the respondent, Joan Samuels, ran over a man with her car, seriously injuring him. She was charged with attempted murder, aggravated assault and leaving the scene of an accident. The main issue at trial was whether she drove at the victim intentionally, or whether, as she testified, she panicked and, fearing for her life, ran over him accidently as she fled the parking lot. The jury acquitted Ms. Samuels on all three charges.
2The Crown appeals the acquittals and seeks a new trial. The Crown’s main ground of appeal is that on the crucial issue of Ms. Samuels’ intent, the trial judge erred in law by instructing the jury that it could consider whether Ms. Samuels was intoxicated from the consumption of crack cocaine. The Crown submits that this instruction had no evidentiary basis, and that the resulting error infected the jury’s verdict on all three charges.
3The Crown’s secondary ground of appeal is that the trial judge erred by failing to properly instruct the jury on a witness’ speculation that the victim was carrying a gun when the incident took place.
4For the reasons that follow, I would dismiss the Crown’s appeal.
B. BACKGROUND FACTS
1) The incident
5Ms. Samuels was a drug user. On the day of the incident, September 10, 2005, she had lent her car to the victim, Mr. Blair. He was a drug dealer.
6By evening, the parties had arrived at the parking lot of an apartment building in Scarborough. Mr. Blair parked Ms. Samuels’ car with the front-end toward the curb and in between two other cars.
7Mr. Blair and Ms. Samuels began a heated argument over the return of her car. Ms. Samuels got into the driver seat of the car and a friend, Ms. Moore, got into the passenger seat. Ms. Samuels begged Mr. Blair for her keys. He became angry and threw a bottle at her, which hit her in the face. He banged on the hood of the car, and threw the keys at her.
8Ms. Samuels testified that she panicked. She wanted to get out of the parking lot as quickly as possible. She started the car, attempted to put it into reverse and hit the accelerator. She banged into the car beside her, slammed on the brakes, went into reverse again, and had to slam on the brakes again to avoid hitting a car moving through the parking lot.
9Ms. Samuels decided that she would get out of the parking lot by going over the curb onto the grass, and doing a U-turn back onto the pavement further down the lot where there were no cars. As she crossed the grass, she hit a 10-foot sign post, which in turn hit Mr. Blair on the head, knocking him down. Ms. Samuels then drove over Mr. Blair, dragging him under her car for 30 feet.
10Mr. Blair was badly injured. He suffered a closed head injury, a mild traumatic brain injury, fractures of his left hip and ankle, and cuts to his scalp, face and back. He spent ten days in the hospital and five weeks in a rehabilitation centre.
11Ms. Samuels testified that she did not see Mr. Blair, and did not know she had run over him or hit a sign post.
2) The evidence of Ms. Moore
12Ms. Samuels’ friend, Ms. Moore, testified for the Crown. Two parts of her testimony are relevant on this appeal.
13First, Ms. Moore testified that when the incident occurred, she was worried that Mr. Blair might have a gun and use it. No evidence was led that Mr. Blair in fact had a gun. Ms. Moore’s speculative comment gives rise to the secondary ground of appeal advanced by the Crown.
14Second, Ms. Moore testified that as Ms. Samuels ran over Mr. Blair with her car she said “meet Adam”. Adam was the pet name Ms. Samuels used for her car. However, Ms. Samuels denied that she said “meet Adam”.
15Ms. Moore’s evidence of the “meet Adam” comment, if accepted by the jury, was damning evidence of Ms. Samuels’ state of mind. Thus I agree with Ms. Maunder, counsel for Ms. Samuels, that in acquitting Ms. Samuels the jury must have rejected Ms. Moore’s testimony on this point. Indeed, for reasons that need not be detailed here, there were many reasons to find Ms. Moore’s testimony unreliable.
3) The evidence of Ms. Samuels’ crack cocaine consumption
16During the day of the incident, Ms. Samuels, Ms. Moore and another person smoked about $1,000 worth of crack cocaine, all supplied by Mr. Blair. By 6:00 p.m. they had run out of both crack cocaine and money. By then they were “jonesing” – that is, coming down off crack cocaine and looking for more.
17Ms. Samuels also testified that shortly before the incident occurred, she took a few puffs from a $20 piece of crack cocaine.
18Ms. Samuels had been smoking crack cocaine for 20 years. She did not claim that she was intoxicated from drug use when she ran over Mr. Blair. Nor did she lead any expert evidence of the effect of crack cocaine consumption on her state of mind.
C. ANALYSIS
1) The Vezeau standard
19Under s. 676(1)(a) of the Criminal Code, the Crown may appeal against a verdict of acquittal on a question of law alone. However, even if a trial judge commits a legal error in instructing a jury, the Crown bears a heavy onus to overturn an acquittal. Under the standard established by the Supreme Court of Canada in Vezeau v. The Queen (1977), 1976 CanLII 7 (SCC), 28 C.C.C. (2d) 81, at p. 87, “it was the duty of the Crown, in order to obtain a new trial, to satisfy the court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury”.
20Later decisions of the Supreme Court of Canada on the Vezeau standard reflect the underlying proposition that a verdict of acquittal is not lightly to be overturned. For example, in R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 374, Sopinka J. for the majority emphasized that the Crown’s onus is “a heavy one… [it] must satisfy the court with a reasonable degree of certainty”. And in its recent decision in R. v. Graveline (2006), 2006 SCC 16, 207 C.C.C. (3d) 481, at para. 14, Fish J. for the majority wrote that for an accused who has been acquitted to be sent back for a new trial, the Crown must “satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”.
21As will become apparent from the balance of these reasons, I am not convinced that the trial judge’s charge to the jury was infected by any legal error. However, even if it was, the Crown has not persuaded me that it has met the heavy onus required of it to obtain a new trial. I would therefore dismiss the Crown’s appeal.
2) Did the trial judge err in her instructions to the jury on the mens rea for attempted murder?
22The Crown argues that in her instructions on the mens rea for attempted murder, the trial judge erred by leaving for the jury’s consideration Ms. Samuels’ intoxication from the consumption of crack cocaine. The Crown says that from the trial judge’s instructions, the jury would have understood they could find that Ms. Samuels’ use of crack cocaine negated the specific intent required for attempted murder. The Crown submits that the instructions were legally wrong because an intoxication defence had no air of reality. In other words, it lacked an evidentiary basis on which a jury, acting reasonably, could acquit.
23Drug use permeated the evidence at trial. However, Ms. Samuels acknowledges that the evidence stopped short of showing she was intoxicated at the time of the incident. Thus, Ms. Samuels agrees with the Crown’s argument that if the trial judge left the defence of intoxication with the jury, the trial judge fell into error by doing so.
24However, in response to the Crown’s argument, Ms. Samuels makes two points. First, she says that the trial judge did not instruct the jury on Ms. Samuels’ drug use as a stand-alone defence of intoxication but as one of a number of factors possibly bearing on her state of mind – in substance, what has come to be known as a rolled-up charge. Second, Ms. Samuels says that even if the trial judge erred in her instructions, the error did not meet the Vezeau standard as it could have had no material bearing on the acquittal. I agree with both of Ms. Samuels’ points.
25The trial judge charged the jury at some length on the mens rea for attempted murder. She repeatedly and correctly told the jury that to find Ms. Samuels guilty of attempted murder, they had to find beyond a reasonable doubt that Ms. Samuels intended to kill Mr. Blair.
26The trial judge then reviewed for the jury the evidence bearing on Ms. Samuels’ state of mind. In that review, the trial judge adverted to Ms. Samuels’ crack cocaine consumption. The Crown specifically objects to the following passage from the trial judge’s charge:
You will consider also the effects of the crack on the accused at the time of the incident. In taking this into account you should consider the testimony of Ms. Moore and the testimony of the accused. According to Ms. Moore, she and Ms. Samuels were “jonesing” at the time of the incident at 4100 Lawrence and had not smoked crack since six p.m. Ms. Samuels testified that she and Ms. Moore had smoked $20 worth of crack in the back seat of the car on (sic) route between Twice as Nice and 4100 Lawrence. Mr. Blair testified that the two women had not smoked in the car at that time.
It is common knowledge that the consumption of drugs, such as or including cocaine, may impair or remove inhibitions and restraint which normally govern a person’s conduct and may impair an individual’s perception and ability to foresee the consequences of one’s behaviour. It will be for you to determine whether Ms. Samuels was still impaired from the effect of the cocaine and whether this factor, assessed in the light of all the other circumstances, affected the necessary intent or state of mind required to constitute the offence of attempted murder.
27I agree with the Crown that if this passage from the charge amounts to an instruction on intoxication as a stand-alone defence, then it was legally wrong. A stand-alone intoxication defence would have had an air of reality only if there was evidence that Ms. Samuels was in a state of “advanced intoxication” from crack cocaine usage. There would have had to have been evidence that she was sufficiently intoxicated to raise a reasonable doubt whether she foresaw the consequences of her actions. No such evidence was led in this case. See R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 at para. 44.
28However, I do not think that the trial judge left intoxication with the jury as a stand-alone defence. Instead, she left Ms. Samuels’ drug use as one of a number of factors possibly affecting her state of mind at the time of the incident. For example, the trial judge instructed the jury as follows: “Was her conduct, her actions, something that was born of fright, desire of self preservation in a drugged state and without an intent to kill?”
29And just before the passage the Crown impugns, the trial judge said: “It is up to you, using your experience and good common sense, to decide what evidence you will accept and, thus, what the facts are and whether Ms. Samuels’ actions were born of fright, desire of self preservation in a drug-affected state and without an intention to kill.”
30The trial judge’s instructions can be viewed as amounting to a “rolled-up charge”, a charge long recognized in Ontario case law. As Weiler J.A. explained in R. v. Fraser (2001), 2001 CanLII 8611 (ON CA), 56 O.R. (3d) 161, at para. 25, “[t]he purpose of a rolled-up charge is … to bring to the attention of the jury evidence linking the evidence of intoxication with other evidence on the issue of intent.” A rolled-up charge instructs the jury to consider the cumulative effect of all the evidence, including consumption of alcohol or drugs, on the accused’s state of mind. If the cumulative effect of the evidence raises a reasonable doubt whether the accused acted with the requisite intent, the jury could properly acquit.
31An accused may be entitled to the benefit of a rolled-up charge even where the evidence, as in this case, may not be sufficient to sustain a stand-alone defence of intoxication. As I understand the jurisprudence in our province, where impairment from drug use is left with the jury not as a stand-alone defence but as part of a rolled-up charge on the accused’s state of mind, the evidence of impairment need not meet the high standard prescribed by the Supreme Court of Canada in Daley. There need only be some evidence that the accused consumed drugs and that this consumption might have affected the accused’s state of mind See, for example, R. v. Gould (2008), 2008 ONCA 855, 244 O.A.C. 176.
32That evidence existed in this case. In addition to the evidence I have already reviewed, two parts of Ms. Samuels’ evidence on cross-examination are worth noting. When questioned by the Crown, she testified that:
I am very irresponsible when I’m on drugs. I don’t know. I don’t think that well … When I’m doing drugs, I don’t really think at all.
33Later the Crown asked Ms. Samuels “Are you attributing that to your crack use?’ Ms. Samuels replied:
I don’t know – I just say – it was a very hostile thing. I just got hit [with the bottle]. I was confused. There was lots of excitement going on. There was like a threat of someone coming after me. There was just so many things going on at that time.
The Crown persisted and asked Ms. Samuels “So in terms of not knowing what was going on around you, are you now saying that it is not the crack, you are saying it is the excitement and the fear?” Ms. Samuels answered, “I’m sure it was everything combined.”
34I therefore am inclined to the view that the trial judge did not err in her instructions on the mens rea for attempted murder. Even if she did err, however, in my view, that error had no material bearing on Ms. Samuels’ acquittal on the charge of attempted murder.
35I reach that conclusion for three reasons. First, defence counsel did not conduct this case on the basis that Ms. Samuels’ crack cocaine use affected her state of mind. At no point did he ask the jury to conclude that because of her consumption of crack cocaine, Ms. Samuels did not appreciate that her driving might kill Mr. Blair. He argued but one defence to the jury: accident. Ms. Samuels was scared, she panicked, and in her desire to get away from Mr. Blair, she accidently ran over him.
36Second, the jury also acquitted Ms. Samuels of the charge of leaving the scene of an accident. On that charge too, Ms. Samuels’ defence was accident. But in instructing the jury on the mens rea for that charge, the trial judge made no reference to Ms. Samuels’ crack cocaine consumption. The acquittal on this charge thus affords powerful support for Ms. Samuels’ contention that her drug use played no role in the jury’s findings.
37Third, although the Crown may have had a strong case, it did not have an overwhelming case. The unreliability of its witnesses, especially Ms. Moore, and the jury’s almost certain rejection of Ms. Moore’s “meet Adam” comment suggests at least some plausibility to Ms. Samuels’ version of why she did what she did.
38I would not give effect to this ground of appeal.
3) Did the trial judge err in her instructions to the jury on the required intention for aggravated assault?
39In instructing the jury on aggravated assault, the trial judge incorporated part of her instructions on the mens rea for attempted murder. She said:
Now, let me deal with the first element. Did the accused intentionally apply force to Mr. Blair? To be an assault, the accused must apply the force intentionally against the will of Mr. Blair. In essence the only issue here is whether Ms. Samuels intentionally drove her car over Mr. Blair. I know that everybody can agree that there is no suggestion that Mr. Blair might have consented to having the car driven over him.
“Intentionally” means on purpose and not by accident. In considering this element with respect to count 2, you will consider all of the evidence bearing on the question of whether the collision was accidental or whether Ms. Samuels deliberately directed her car at Mr. Blair. You should refer to my discussion above of this point with respect to count 1.
If you find that Ms. Samuels chased Mr. Blair with her car as opposed to accidentally running over him, as she testified, then you will have concluded that for the purpose of count 2 she intentionally applied force to him, and you will answer “yes” to this question.
In order to determine whether her actions were deliberate as opposed to accidental, for the purpose of this question, you will consider the factors in the evidence that you took into account in count 1 to determine Joan Samuels’ state of mind or what she meant to do. ...
You should look at her conduct and words before and at the time that the car ran into Mr. Blair. Again I refer you to the evidence with respect to count 1. All these things and circumstances in which they happened may shed light on the accused’s state of mind at the time.
40The Crown says that effectively the trial judge incorporated her reference to Ms. Samuels’ crack cocaine use and invited the jury to consider this usage in determining whether Ms. Samuels had the intent to commit aggravated assault. The Crown contends that the trial judge was precluded in law from doing so because of s. 33.1 of the Criminal Code.
41Under s. 33.1 of the Code, an accused cannot disavow the intent to commit an offence of assault because of self-induced intoxication. In pre-charge discussions, the Crown asked the trial judge to charge the jury on s. 33.1 and to tell the jury that intoxication was not a defence to aggravated assault. The trial judge refused to do so. The Crown repeated this request when the jury returned with the following question: “Are we able to consider state of mind in relation to count 2, aggravated assault?” Again, the trial judge declined to charge the jury on s. 33.1. Instead, she said: “It is very clearly on the record that intoxication is not a defence”.
42This ground of appeal raises the question whether instructing the jury on drug consumption as part of a rolled-up charge runs afoul of s. 33.1 of the Criminal Code. In my view, however, it is unnecessary to answer this question. Again, even if the instruction was wrong, for the reasons I gave in connection with the instructions on attempted murder, the Crown has not shown that but for the error, the jury would not necessarily have acquitted Ms. Samuels of aggravated assault. I would not give effect to this ground of appeal.
4) Did the trial judge err in her instructions to the jury on the charge of leaving the scene of an accident?
43The Crown argued that all three acquittals were tainted by the trial judge’s charge on Ms. Samuels’ crack cocaine consumption. However, the Crown did not specifically challenge the trial judge’s instructions to the jury on the charge of leaving the scene of an accident. Indeed, there was nothing to challenge. In this part of her charge, the trial judge did not refer to Ms. Samuels’ crack cocaine consumption. The Crown did not suggest another ground to overturn this acquittal.
5) Did the trial judge err by failing to properly instruct the jury on Ms. Moore’s speculative comment that Mr. Blair was carrying a gun?
44As I said in reviewing the facts, Ms. Moore testified that when the incident occurred she thought that Mr. Blair might have a gun and might shoot at her and Ms. Samuels. This comment was pure speculation. The evidence was uncontroverted that Mr. Blair did not have a gun.
45Nonetheless, in his closing address to the jury, defence counsel asked the jury to consider Ms. Moore’s comment in determining how Ms. Samuels acted that evening. The Crown asked the trial judge to correct the defence’s closing and to tell the jury not to rely on Ms. Moore’s comment. The trial judge refused to do so.
46Now, on appeal, the Crown contends that the trial judge’s failure to instruct the jury on the defence’s closing and on Ms. Moore’s speculative comment amounted to a legal error. In my view, even if it was an error, the error was harmless.
47Although the trial judge did not specifically correct defence counsel’s closing, she did instruct the jury that it could not rely on Ms. Moore’s hearsay evidence to draw any conclusion about Ms. Samuels’ state of mind. Moreover, Ms. Samuels herself never testified that she thought Mr. Blair had a gun. And, although Ms. Moore speculated that Mr. Blair might have had a gun, she also testified that she never saw him with a gun. Finally, as the jury undoubtedly rejected Ms. Moore’s “meet Adam” testimony, I cannot think that they gave any credence to her speculative comment that Mr. Blair might have had a gun. I would not give effect to this ground of appeal.
D. CONCLUSION
48A jury acquitted Ms. Samuels of attempted murder, aggravated assault and leaving the scene of an accident. The Crown contends that the jury’s verdicts must be set aside and a new trial ordered. Primarily the Crown argues that the trial judge erred in law by leaving for the jury’s consideration the defence of intoxication from crack cocaine consumption, although that defence had no evidentiary basis.
49I have concluded that the trial judge did not leave for the jury’s consideration Ms. Samuels’ drug use as a stand-alone defence but rather as part of a rolled-up charge including other factors bearing on her state of mind, and that the trial judge was justified in doing so.
50Alternatively, I have concluded that even if the trial judge erred as the Crown contends, that error would not have had a material bearing on the acquittals. Accordingly, I would dismiss the Crown’s appeal.
RELEASED: August 18, 2009
“JL” “John Laskin J.A.”
“I agree E.A. Cronk J.A.”
“I agree H.S. LaForme J.A.”