COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Edward Paredes
Appellant
Richard Posner, for the appellant
Lorna Bolton, for the respondent
Heard: November 17, 2014
On appeal from the conviction returned by a jury on April 1, 2010 and the sentence imposed on October 25, 2010 by Justice M. Benotto of the Superior Court of Justice.
Doherty J.A.:
I
1The appellant was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 15 years. He appeals his conviction and sentence. His co-accused was convicted of manslaughter. He has not appealed.
2The appellant shot and killed John O’Keefe as Mr. O’Keefe was walking north on Yonge Street near the Brass Rail Tavern at about 1:15 a.m. The appellant and the co-accused had been removed from the tavern by the bouncers shortly before the shooting. It was the Crown’s position that the appellant, who was armed with a loaded handgun, was angry with the bouncers for evicting him and humiliating him in the process. The Crown contended that the appellant fired the gun at the bouncers but missed and killed Mr. O’Keefe. Mr. O’Keefe had nothing to do with the appellant or the events in the Brass Rail Tavern. He just happened to be walking up Yonge Street. The Crown relied on the transferred intent doctrine in s. 229(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.
3The appellant pled guilty to the included offence of manslaughter but that plea was not accepted by the Crown. In his testimony he acknowledged that he had unlawfully caused Mr. O’Keefe’s death and was guilty of manslaughter.
4The appellant testified that he had not intended to kill or harm anyone but only intended to frighten the bouncers. He testified that he fired the gun in the air to the left of the area where the bouncers had been standing. According to him, the bouncers had moved back inside of the vestibule of the tavern just before he fired his gun.
5The appellant acknowledged that he was very angry with the bouncers for the way they had treated him. At the same time he testified that he was sufficiently in control of himself to make the decision to fire away from where the bouncers were positioned.
6In addition to instructing the jury on the question of intent, the trial judge left the defence of provocation with the jury. The appellant’s evidence, and that of his co-accused, provided an evidentiary basis for the defence of provocation. The trial judge properly left provocation with the jury.
II
7The appellant advances three grounds of appeal. The first alleges that the Crown engaged in improper cross-examination of the appellant. The second ground of appeal challenges the trial judge’s instructions on the evidence relevant to the issue of intent and the third alleges errors in the instructions on provocation. Counsel alleged several specific errors in the instructions on intent and provocation. He also submitted that the cumulative effect of those specific errors tilted the charge in favour of the Crown and rendered the trial fundamentally unfair. The merits of this omnibus ground of appeal depend to a large extent, on the merits of the more specific grounds of appeal challenging the instructions on intent and provocation. I will address the specific grounds first and then turn to the broader unfairness claim.
The Crown’s cross-examination
8In the course of a lengthy cross-examination Crown counsel put the evidence of various witnesses to the appellant and asked him whether he agreed or disagreed with that evidence and if he disagreed with the evidence, how his version of the events differed from the evidence of those other witnesses. I see nothing improper in this approach on cross-examination. The Crown was entitled to put the substance of the evidence of the other witnesses to the appellant and to determine the extent to which the appellant’s version differed from the evidence of the other witnesses. The Crown did not ask the appellant to comment on the reliability or credibility of any other witness. Nor did the Crown ask the appellant to explain any differences between his evidence and the evidence given by the other witnesses.
9The format followed by the Crown now said to have been unfair was the very format that defence counsel at trial insisted should be followed. On at least two occasions during the cross-examination, defence counsel admonished the Crown for failing to put the specifics of the evidence of other witnesses to the appellant when asking the appellant whether he agreed with or disagreed with that evidence.
10Obviously the Crown used the approach that it did in an effort to demonstrate the strength of the Crown’s case by placing the Crown evidence beside the appellant’s testimony. This may or may not have been effective advocacy. It was not however improper cross-examination and did not in any way undermine either the appearance or the actual fairness of the trial.
11Crown counsel did make one unnecessary and inappropriate comment in response to a comment made by the appellant during the cross-examination of the appellant. I need not set out the specifics of the comment. On any reading the comment cannot be characterized as inflammatory. Nor, as an isolated comment in an otherwise proper cross-examination could it possibly have affected the fairness of the trial.
12I also reject the submission that the Crown improperly cross-examined the appellant about his attitude and behavior while in the Brass Rail Tavern. It was the Crown’s position that the appellant was playing the role of a “gangster” who was above the rules of the bar and the authority of the proprietors. According to the Crown’s theory this attitude led to the appellant’s removal from the bar, which in turn precipitated the confrontation with the bouncers on the street.
13The appellant’s attitude in the bar was integral to the narrative and theory advanced by the prosecution. Cross-examination directed at the appellant’s conduct and attitude in the bar was appropriate.
14Counsel for the appellant also suggests that the tone of the cross-examination was prejudicial. He describes the cross-examination as “distinctly abusive and mocking”. We are limited to the printed word in assessing this argument. The transcript reads as neither abusive nor mocking.
The instructions on intent
15The trial judge properly identified the mens rea required for murder. She reviewed the relevant evidence, but only after making it clear to the jury that she did not intend to review all of the evidence and that it was their recollection of the evidence that mattered. The jury clearly understood this direction and took it to heart as evinced by their questions requesting the re-reading of extensive parts of the evidence relating to the appellant’s ejection from the bar and the subsequent events. The jury’s questions leave no doubt that it understood that it was obliged to review the entirety of the evidence and make its own determination of the relevant facts.
16The appellant makes four specific objections to the instructions relevant to intent. Two relate to the failure to refer to evidence and two relate to comments by the trial judge that allegedly undercut the defence position on certain evidence.
17The appellant submits that the trial judge failed to review with the jury the appellant’s evidence that the bouncers had gone back inside the tavern before he fired the gun. Counsel also submits that the trial judge failed to review with the jury the evidence of the witness Smilis, an off-duty police officer to the effect that the appellant did not appear to aim the gun when he fired it.
18A trial judge is not obliged to refer to every piece of evidence that is relevant to an issue when reviewing evidence with a jury. Some evidence may however be so crucial to a proper appreciation of a specific issue, or the position of a party on that issue, that it must be included in the trial judge’s review of the evidence.
19The two pieces of evidence referred to by counsel were potentially helpful to the appellant’s position that he did not fire at the bouncers. I note, however, that the potential value to the defence of both answers was qualified to some extent, one by the nature of the question asked, and the other by parts of the cross-examination. Even with those qualifications however, the evidence was potentially helpful to the appellant.
20I need not decide whether the evidence not referred to by the trial judge was so central as to require a reference to it in her instructions on intent. The trial judge’s failure to refer to the evidence loses its significance in the face of the jury’s request to have testimony that included the appellant’s evidence and the evidence of Smilis re-read during its deliberations. The re-reading of the evidence leaves no doubt that the jury was aware of the appellant’s evidence that the bouncers had gone back into the tavern and Mr. Smilis’ testimony that the appellant did not appear to aim the gun. The relevance of that evidence to the appellant’s intent would be obvious to the jury. I am satisfied that the jury, following the instructions given by the trial judge, considered all of that evidence in arriving at its verdict.
21The appellant also argues that the trial judge unfairly undermined the appellant’s evidence that he was an accurate shot and could have hit the bouncers, had he desired to do so. The appellant had told the jury about his experience at the shooting range when being trained in the use of a firearm. The trial judge summarized that evidence but then added:
There is no evidence however, of his accuracy in a situation where he is outside, angry, upset, running forward and then shooting.
22The trial judge’s observation is self-evident and was in all likelihood unnecessary. Standing alone it causes no harm. The jury would no doubt appreciate the very real difference between firing a gun accurately in the controlled setting of a shooting range, and firing a gun accurately in the circumstances described in the evidence.
23The real mischief in this kind of comment lies in its potential to suggest to the jury that the trial judge, by immediately following a reference to evidence favourable to the appellant with a Crown counterpoint, has aligned herself with the Crown. The impact of the comment can however only be determined in the context of the entire jury instruction. I will consider that possibility when addressing the omnibus unfairness claim.
24The fourth submission relating to intent arises out of the instruction concerning the jury’s viewing of the relevant videos. These videos were taken from various surveillance cameras and presented a frame-by-frame depiction of some of the relevant events. The trial judge reminded the jury that the key events had happened very quickly. She noted that the frame-by-frame depiction of those events in the videos could suggest that the events had occurred at a much slower pace. She cautioned the jury to guard against being misled by the videos.
25The instruction was a proper one. The risk identified by the trial judge was a real one. It was appropriate for the trial judge to alert the jury to that risk. Her comment was not calculated to assist either the Crown or the defence. Indeed the appellant in his testimony repeatedly referred to the speed at which the events had unfolded in explaining why he did what he did and why he could not offer a more precise explanation for some of the events. The trial judge’s instruction cautioning the jury against being misled by the frame-by-frame videos tended to reinforce the appellant’s evidence about the speed at which the relevant events had occurred.
The provocation instructions
26Although counsel made submissions in his factum challenging the trial judge’s description of the legal elements of the defence of provocation, he did not pursue those arguments in his oral submissions. I see no error in the trial judge’s description of the constituent elements of the defence of provocation.
27Counsel for the appellant alleges several specific errors in the provocation instruction. First, he submits that the trial judge’s failure to specifically advert to the defence of provocation and the evidence capable of supporting that defence when putting the position of the appellant to the jury, unfairly minimized that defence in the eyes of the jury.
28This submission requires a reading of the entirety of the charge. The trial judge explained the defence of provocation to the jury and outlined to them the evidence relevant to the elements of that defence. Later in her charge, the trial judge summarized for the jury the positions of the parties. In doing so, she read from the prepared statements provided to her by counsel. The statement prepared by counsel for the appellant made no reference to provocation as a separate defence.
29The trial judge is obligated to instruct the jury on all defences that arise on the evidence. The jury must understand that the defence is available, the elements of the defence, the evidence relevant to the defence, and the position of the parties. The trial judge made all of those things clear to the jury in her instructions on provocation.
30Trial counsel decided not to include any reference to provocation in the statement of the position of the defence he provided to the trial judge. He knew that the trial judge intended to read the statement to the jury as the position of the defence. I do not see how it could be said that the trial judge committed reversible error by failing to add a reference to the defence of provocation to the written position of the defence provided to her by counsel. In this part of her instruction, the trial judge was outlining the position of the parties as the parties wanted those positions put to the jury. She might well have been criticized had she chosen to add a reference to provocation to the position as expressed by defence counsel.
31Counsel’s tactical decision not to refer to provocation in outlining the position of the defence, did not relieve the trial judge of the obligation to properly put the defence to the jury. However, she did so in the part of her instructions specifically directed at the defence. There is no error in not going back to that defence in the part of the charge dedicated to the position of the parties as put by the parties.
32Counsel next submits that the trial judge overstated the degree of loss of control needed to support a provocation defence. He submits that the trial judge made it appear as though the appellant’s ability to make any decisions negated the defence.
33I do not read the charge that way. The trial judge was obligated to relate the evidence to the elements of the defence of provocation. That evidence included the appellant’s evidence that although he was very angry, he remained sufficiently in control of himself to decide where to aim the gun when firing it and to deliberately aim so as to miss the bouncers. The appellant’s description of his state of mind when he fired the gun was to some extent, inconsistent with the loss of self-control that is the hallmark of the provocation defence. The problem for the appellant lies not in how the trial judge described the elements of provocation, but in his own evidence describing his state of mind.
34Counsel for the appellant also argued that the instruction that the jury could look to the appellant’s evidence in determining the applicability of the defence of provocation was inconsistent with the instruction that the jury should look to the question of provocation only after finding that the appellant had the intent required for murder. Counsel submitted that the jury could only find that the appellant had the intent for murder if it rejected his evidence as to his state of mind. Consequently, that evidence would have been rejected before the jury reached the question of provocation and it should not have been left with the jury as relevant to the provocation defence.
35I cannot accept this submission. The Crown argued that the appellant’s evidence that he deliberately intended to miss the bouncers when he fired, should not be believed. The Crown also argued that the appellant’s description of his mental state should be accepted to the extent that it demonstrated that he was in control of his decision-making faculties. There is nothing inherently inconsistent in these two propositions. The former speaks to the veracity of the appellant’s description of the decision he made, that is, to shoot away from the bouncers, and the latter speaks to the veracity of his stated ability to decide the direction in which he would shoot. The Crown argued that the jury should believe the appellant’s evidence that he made a decision as to the direction in which he would aim and fire the gun, but should reject his evidence that he decided to fire the gun in a direction other than at the bouncers.
36Counsel next argues that the trial judge, in referring to evidence relevant to the defence of provocation, should not have referred to the evidence of the statement that the appellant gave to the police after his arrest. In the statement, the appellant had explained that he was angry with the bouncers because he and his co-accused had been removed from the bar and assaulted by the bouncers “for no reason”. The appellant said nothing in the statement about any taunting language or insults uttered by the bouncers. The Crown argued that the appellant’s failure to refer to the insults or taunting in his statement could be used by the jury in assessing the credibility of the appellant’s testimony that the bouncers had in fact insulted him and called him names.
37The trial judge told the jury that it could consider that the appellant’s failure to refer to the insults or taunting in his statement to the police when assessing the credibility of that part of his testimony. I think the instruction was correct. The failure to mention the taunting or insults could have some negative impact on the credibility of the appellant’s testimony that he was provoked in part by the bouncers’ language. The extent to which the failure to mention the taunts and insults undermined the credibility of this testimony was entirely for the jury. The trial judge did not give the evidence any prominence, but simply referred to it in the course of an extensive review of different parts of the testimony relevant to the elements of the provocation defence.
38Counsel for the appellant also submits that the trial judge erred when she told the jury that it could consider the appellant’s evidence about his reaction when robbed at gunpoint several months earlier, to assess the appellant’s contention that he had lost his self-control when assaulted and insulted by the bouncers. On the appellant’s evidence, he had remained calm when robbed at gunpoint. This argument was not made by the Crown at trial and for good reason. The evidence of the appellant’s reaction when robbed at gunpoint could not possibly help the jury in its assessment of the appellant’s reaction in response to the alleged provocative conduct of the bouncers. The two situations are completely different. The appellant’s reaction as the victim of an armed robbery could not reasonably provide any insight into his reaction when allegedly taunted and assaulted by the bouncers. Furthermore, the appellant’s reaction on being robbed was not developed in the evidence at trial. That evidence was offered solely to explain the appellant’s decision to carry a gun when he went to the bar. Neither the Crown nor the defence saw the evidence as having any relevance to provocation. The appellant’s limited testimony about the earlier robbery reflects very narrow ground upon which the evidence was advanced.
39Standing alone, the trial judge’s instructions that the evidence of the robbery was relevant to whether the appellant had lost his self-control when he fired the shot that killed Mr. O’Keefe would not amount to reversible error. I am satisfied that the jury would appreciate the pronounced differences between the two situations and gain little insight into the appellant’s state of self-control when he fired the shot that killed Mr. O’Keefe by referring to his level of self-control when he was the victim of an armed robbery. However, the appellant points to this instruction as one example, perhaps the best example, of the trial judge using the jury instructions to advance the case for the Crown. This leads to a consideration of the omnibus unfairness argument.
Did the jury instructions render the trial unfair?
40As set out above, my review of the specific arguments raised by the appellant reveals one error in the jury instructions. I have also referred to one other instance when it could reasonably be said that the trial judge appeared to be arguing the Crown’s case (see supra para 21). Apart from those two passages however, the jury instruction was even-handed, thorough and legally correct.
41Allegations of unfairness necessarily engage an assessment of the charge as a whole. Only through that assessment can an appellate court get a true sense of whether a trial judge has deliberately or inadvertently placed her thumb on the Crown’s side of the scales of justice. Having read the jury instructions several times, I do not get the sense that the trial judge was steering the jury in the Crown’s direction. Rather than improperly invading the jury’s domain, the trial judge repeatedly brought home to the jury its obligation to thoroughly review all of the evidence before making the findings necessary to their verdict. The entirety of the record, particularly the questions put by the jury concerning the details of the evidence, satisfies me that the jury’s verdict is a reflection of a full and independent analysis of the evidence.
III
The sentence appeal
42The appellant received the mandatory sentence of life imprisonment. Only one member of the jury recommended an increase in parole ineligibility beyond the 10 year minimum. That juror recommended a 12-year period of parole ineligibility. The trial judge imposed 15-year period of parole ineligibility.
43The trial judge properly emphasized the tragic circumstances of the murder and the harm caused by the appellant. Mr. O’Keefe’s senseless death is a profound loss not only to his family and friends but to the community as a whole. We are all worse off without Mr. O’Keefe.
44This court and others have repeatedly identified gun violence, particularly in Toronto, as a pressing and very serious problem. The need to denounce and deter the appellant’s conduct, justified some extension of the period of parole ineligibility.
45There are however features of this case which distinguish it from the vast majority of crimes involving gun violence, particularly homicides. The appellant had a licence for the gun and had purchased the gun lawfully, although his possession of the loaded gun in the bar was itself a serious crime. Most significantly, the appellant who was 22 years old at the time of the offence had no criminal record and no prior involvement with the criminal law or illicit gun use. This offence was very much out of character for the appellant. Bearing in mind the appellant’s age, his antecedents and his strong family support, there is good reason to think that the appellant could one day be a responsible and productive member of the community.
46This court must show deference the trial judge’s balancing of the competing factors relevant to sentencing. Crown counsel relies on that deference and points to R. v. Danvers, 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532, as a case that is similar to this one in many ways. In Danvers, this court reduced an 18-year period of parole ineligibility to 15 years.
47Danvers is a helpful precedent. Like this case, it is an example of gun violence that led to murder. The accused in Danvers however, had an extensive criminal record including gun-related offences. His personal circumstances were, in most respects, the polar opposite of this appellant’s. The accused in Danvers showed little potential for rehabilitation.
48With respect, I think the trial judge lost sight of the appellant’s personal circumstances and his real potential for rehabilitation and concentrated exclusively on the need for deterrence and denunciation. While those principles deserved paramount consideration, they were not the only principles to be considered. In my view, giving proper emphasis to denunciation and deterrence while also factoring in the appellant’s real rehabilitative potential would yield a parole ineligibility period of 12 years. I would vary the sentence accordingly.
Conclusion
49I would dismiss the conviction appeal. I would allow the sentence appeal and vary the sentence to life imprisonment without eligibility for parole for 12 years.
Released: December 19, 2014 (“D.D.”)
“Doherty J.A.”
“I agree John Laskin J.A.”
“I agree C.W. Hourigan J.A.”
