COURT OF APPEAL FOR ONTARIO
DATE: 20001020
DOCKET: C31027
LASKIN, MOLDAVER and BORINS JJ.A.
B E T W E E N : )
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HER MAJESTY THE QUEEN ) Tina Yuen, for the
respondent
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Respondent )
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–and– )
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THOMAS RAE CULLITON ) John Lefurgey, for the appellant
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Appellant )
)
Heard: December 22, 1999
On appeal from conviction by E.I. Macdonald J., with a jury,
dated June 29, 1998
MOLDAVER J.A.:
[1] The appellant appeals from his conviction on a charge of
attempt to commit murder. The grounds of appeal relate to the
trial judge’s charge and the Crown’s closing address to the jury.
Overview
[2] On January 11, 1996, in the early afternoon, the appellant
shot the complainant, Sandra Peardon, in the back of the head at
point blank range. At the time, he and Ms. Peardon had been
living together for about nine months.
[3] On the day of the shooting, the complainant woke up and
found the appellant seated on a couch. A bottle of tequila and a
bag containing either caffeine pills or Benzedrine were close by
and from his appearance, she suspected that he had been awake all
night, drinking and consuming drugs.
[4] Sometime that morning, the complainant’s friend, Jody Allen,
came by and she waited in the kitchen while the complainant got
ready to leave. It was at about this time that the appellant
began arguing with the complainant about a leather dance outfit
that he had purchased for her, which he thought she had sold.
While the complainant was in the shower, the appellant retrieved
his handgun and fired it into the bathroom floor. This resulted
in a further argument when the complainant came out of the
shower.
[5] The complainant then went downstairs to change and the
appellant followed her. The argument continued and the appellant
pushed the complainant into a chair, held the gun to the back of
her head and said “If I can’t have you, nobody can.” The gun
then discharged and the bullet lodged in the complainant’s head.
Immediately thereafter, the appellant took hold of the
complainant, telling her that he “loved her” and that he “didn’t
know what he was doing”. He then directed Jody Allan to take the
complainant to the hospital.
[6] Miraculously, the complainant survived and the appellant was
arrested later that day and charged with attempt to commit
murder.
The Charge to the Jury
[7] The appellant raised two separate and distinct defences to
the charge of attempt to commit murder. His primary position was
that the discharge of the firearm was accidental. In the event
the jury rejected that defence, his secondary position was that
he did not form the requisite intent to kill. Both defences
depended in large measure on the jury’s assessment of the
appellant’s degree of intoxication at the time of the shooting.
In the case of his primary defence, the issue for the jury was
whether the appellant’s drug and alcohol consumption may have
affected his physical co-ordination. In the case of the
appellant’s secondary defence, the issue for the jury was
whether, having regard to all of the circumstances, including his
degree of intoxication, the Crown had proved that at the time of
the shooting, he had the requisite intent to kill. In this
regard, it must be emphasized that at no time did the appellant
contend that, as a result of his drug and alcohol consumption, he
lacked the capacity to form the intent to kill. To the contrary,
capacity was not an issue at trial.
[8] Both accidental discharge and lack of intent were viable
defences and the appellant was entitled to have each explained to
the jury in a clear and comprehensive fashion. However, in her
charge, the trial judge paid scant attention to the primary
defence and her instructions on the secondary defence were
unnecessarily complex and could have served only to confuse the
jury.
[9] With respect to the primary defence of accidental discharge,
the only legal instruction on this issue is found in the
following passage of the charge dealing with the included offence
of aggravated assault:
If you find that the intention to use force was not formed;
in other words if you find that this was an accident or if you
are left with any reasonable doubt of it you must return a
verdict of not guilty. If on the other hand you find that the
accused intended to use force against Sandra Peardon and that he
did use force against her you must go on to decide whether the
Crown has proved that the act of the accused was without her
consent.
[10] This brief instruction was confusing, wrong in law and
potentially prejudicial to the appellant. It was confusing
because the trial judge did not explain what she meant by the
term “use of force.” Unquestionably, the appellant used force
against the complainant when, at gun point, he forced her to
kneel on the chair, and there was no suggestion that this use of
force was accidental as opposed to intentional. Rather, it was
the position of the appellant that the discharge of the firearm
was accidental. Based on the trial judge’s instruction, the jury
may well have concluded that the defence of accident was not
available to the appellant because of his intentional assault on
the complainant prior to the discharge of the firearm.
[11] The instruction was wrong in law because, in the
circumstances, the defence of accidental discharge did not
entitle the appellant to an acquittal. At most, given the
appellant’s continuing assault on the complainant, it could only
be used to reduce the charge of attempt to commit murder to
aggravated assault. In one sense, the impugned instruction was
overly favourable to the appellant. That said, in the
circumstances, leaving the jury with the impression that the
defence of accident, if accepted, would entitle the appellant to
go free may well have been prejudicial to the appellant.
[12] Turning to the instructions on the secondary defence of lack
of intent, the trial judge placed far more emphasis on the issue
of lack of capacity than she did on the issue of actual intent.
As I have already indicated, lack of capacity was a non-issue.
The trial judge’s repeated instructions on capacity were complex
and unnecessary, and could have served only to confuse the jurors
and to deflect their attention away from the real issue.
[13] In the end, these deficiencies in the charge lead me to
conclude that the appellant was deprived of his right to a fair
trial. Crown counsel fairly conceded as much in her oral
submissions.
[14] My conclusion in this regard is reinforced by a further
deficiency in the charge, namely, the trial judge’s failure to
give the jury a sharp limiting instruction on a body of evidence
which tended to portray the appellant as a person of bad
character. The evidence in question related to the appellant’s
use of drugs. his drug trafficking, his affiliations with a
motorcycle gang, and his illegal possession of a handgun. The
cumulative effect of this evidence was potentially very
prejudicial to the appellant. The picture that emerged was that
of a violent drug dealer engaged in a life of crime. A sharp
limiting instruction was required to counter the prejudicial
effect of this evidence. Unfortunately, the jury received no
such instruction.
The Crown’s Closing Address
[15] The appellant raised numerous concerns about the Crown’s
closing address. In particular, he submits that the Crown
misquoted the evidence, improperly disparaged the defence expert
witness and invited the jury, in the absence of an evidentiary
foundation, to find that the appellant had a motive to commit the
crime and that his conduct was planned and deliberate.
[16] In view of my conclusion on the grounds relating to the
charge to the jury, I find it unnecessary to analyze the various
complaints in detail. Suffice it to say, in my view, the Crown
did improperly invite the jury to speculate on the issue of
motive and the planning and deliberation that went into the
offence. Unfortunately, the trial judge did not correct these
misstatements, although asked to do so by defence counsel. This
too may have impacted on the appellant’s right to a fair trial.
Conclusion
[17] In the result, the conviction cannot stand. I would
accordingly allow the appeal, set aside the conviction and order
a new trial on both counts in the indictment.
“M.J. Moldaver J.A.”
“I agree: J.I. Laskin J.A.”
“I agree: S. Borins J.A.”
Released: January 20, 2000