COURT OF APPEAL FOR ONTARIO
DATE: 20000313
DOCKET: C29031
CHARRON, GOUDGE and MacPHERSON JJ.A.
B E T W E E N : )
) Richard N. Stern,
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) Erika Chozik,
) for the respondent
IRVINE GEORGE FORREST )
)
Applicant/
Appellant ) Heard: March 8, 2000
)
On appeal from his conviction by Mr. Justice John Jennings,
sitting with a jury, on February 22, 1995
BY THE COURT:
[1] Following his trial by judge and jury, the appellant was
convicted of attempted murder and three related weapons offences.
He was sentenced to a total term of imprisonment of eighteen
years to be served concurrently to the time being served on other
offences. The appellant appeals his conviction and seeks leave
to appeal his sentence. The sentence appeal was heard together
with two further appeals against sentence with respect to other
offences and will be disposed of in separate reasons.
[2] The appellant raises three grounds of appeal on his appeal
against conviction. The first relates to the trial judge’s
instructions to the jury relating to the assessment of the
complainant’s credibility. The appellant takes issue with the
following excerpt from the trial judge’s charge:
You will decide whether his untruths about these
and perhaps other matters are sufficient to make
him unbelievable on the crucial issue of who shot
him. [Emphasis added]
[3] Counsel argues that this instruction in effect erroneously
put the burden of proof on the defence to show that there were
sufficient untruths to make the complainant unbelievable.
Although this one sentence could have been worded differently,
it cannot be considered in isolation. We are satisfied that, when
taken in context, this instruction would not have misled the jury
in their assessment of the complainant’s credibility on the
question of burden of proof. The trial judge gave extensive
instructions on this crucial issue. His instructions, when
considered as a whole, were very clear and do not disclose any
error.
[4] The second ground relates to the manner in which the trial
judge instructed the jury to disregard an inappropriate comment
made by defence counsel. The trial judge stated as follows:
The defence suggests to you in argument that it is
possible that the shooter was one of the two other
persons who were present. I want to caution you on
one thing, and I want to caution you very strongly
on this point: towards the end of his address, Mr.
Azzoli said to you that Mr. Forrest, and I made a
note of this – I think it is accurate – is telling
you he is not the one who shot Campbell. I must
ask you to completely disregard that remark. No
evidence has been called on behalf of the defence
to suggest any such thing. The theory of the defence
is that the Crown has not proved beyond a reasonable
doubt that Forrest shot Campbell. That is quite a
different thing.
[5] Counsel for the appellant concedes that the comment made by
defence counsel was inappropriate and that it required an
instruction from the trial judge. He submits, however, that the
manner in which this was done by the trial judge unnecessarily
undermined the defence and could have led the jury to mistakenly
believe that there was an obligation on the appellant to call
witnesses for the defence.
[6] While there may have been preferable ways for the trial
judge to address the jury in this regard, the wording chosen by
the trial judge did not amount to a comment on the failure of the
appellant to testify. Further, it is our view that the charge as
a whole fairly and adequately presented the theory of the
defence. This particular instruction does not in any significant
way detract from the overall effect of the charge.
[7] Finally, the appellant submits that the trial judge
commented on a crucial piece of evidence, the “near death”
identification of the appellant by the complainant, in a manner
that was greatly prejudicial to the defence. We do not agree.
In our view, the trial judge’s comment, in the context that it
was given, was consistent with his duty to decant and simplify
the evidence for the jury. To the extent that the trial judge’s
comment constituted an opinion on the facts, it is our view that
it was fully supported by the evidence and appropriately coupled
with the clear instruction that the jury was free to disregard
his comment.
[8] For these reasons, the appeal against conviction is
dismissed.
(signed) "Louise Charron J.A."
(signed) "S. T. Goudge J.A."
(signed) "J. C. MacPherson J.A."
RELEASED: March 13, 2000