COURT OF APPEAL FOR ONTARIO

DATE: 20000925

DOCKET: C30426

ROSENBERG, MACPHERSON AND SHARPE JJ.A.

BETWEEN: )

) Irvin Koziebrocki

HER MAJESTY THE QUEEN ) for the appellant

Respondent )

• and - ) Feroza Bhabha

) for the respondent

DERINE DAVY )

Appellant )

) Heard: July 27, 2000

On appeal from the conviction by The Honourable Mr. Justice Frank K. Roberts with a jury dated March 17, 1998.

MACPHERSON J.A.: (Dissenting)

[1] The appellant, Derine Davy, was convicted of the offence of attempted murder following a jury trial presided over by Roberts J. She appeals her conviction and the sentence of seven years and four months incarceration imposed by Roberts J.

[2] On July 3, 1997, John Atkins was paid his weekly salary of $530. Following work, he went back to Seaton House where he resided. He showered and went out to dinner. On his way home, he went to the Public Kitchen Restaurant for a drink with a friend. Davy, whom Atkins had known for several months, was inside the restaurant.

[3] By this stage of the evening, Atkins was, although he denied it in his testimony, highly intoxicated. A medical report showed his blood alcohol level to be 34, very close to the toxic level of 39.

[4] Atkins testified that Davy and a man both stabbed him in the stomach while he was inside the Public Kitchen Restaurant. He fled outside where Davy and two men caught up to him. He testified that Davy stabbed him a second time.

[5] Atkins’ testimony was confirmed in important respects by the testimony of Stephen Omole, a taxicab driver who was sitting in his cab across from the restaurant. He testified:

The southwest corner of Dundas and George Street there’s a restaurant called Kitchen Restaurant. And I saw – I saw four people coming out of that restaurant. Three. Three men and one lady. And apparently one of the boy was trying to get away from the rest three which is two men and one lady or girl. He was trying to run across from there; the other three two boys and one lady were running after him. So as he was trying to get away one of a guy, short with long sleeved shirt I think on the jeans pants, jumped up and kicked him from behind. And he fell to the ground. At the cobbling. And when he fell to the ground there was another tall, a taller boy, that one with the black T-shirt, and I think dark blue T-shirt and a jeans pant, with a black running shoe, he kicked him as well and hurled him to the ground and the lady who was with them kicked – kicked the boy as well. She punched him. Then what I saw was the lady put her hand into her pocket and take out a – her hand and punch him one, and punch him twice. Then removed her hand and just all of a sudden they all start running away.

[6] Davy testified at the trial. She admitted knowing Atkins and seeing him in the restaurant on the night in question. She testified that he was so drunk that he was ordered to leave. She went outside to smoke a cigarette. She saw him head across the street towards two drug dealers. The dealers told Atkins to stay away from them. Atkins would not move and picked up a bottle. He began waving the bottle. One of the dealers kicked him. Atkins fell on his stomach. The two dealers punched and kicked him and ran off. Davy re-entered the restaurant to inform people about the incident. She then went outside and went over to look at Atkins who was not getting up. She testified that she did not stab Atkins or assist the two men in their attack on him.

[7] Dr. Jarley Koo is a surgeon who treated Atkins at St. Michael’s Hospital. He described the type of weapon that could possibly cause the two (not four, as Atkins asserted) stab wounds: “something sharp, something as wide as 3 cm… it would have to be at least 5 cm in length, or probably much longer than that … it would be consistent with an instrument like a knife”.

[8] The appellant submits that the trial judge made several errors:

(1) He should not have admitted evidence about a prior incident involving Davy and Atkins and, having done so, he should have cautioned the jury about improper use of such evidence;

(2) He should not have instructed the jury that Davy could be found guilty as a party to an offence committed by others because, on the evidence, that was simply not a live issue; and

(3) He erred in his instructions concerning the proof of intent.

[9] The appellant also submits that the jury’s verdict was unreasonable.

[10] Finally, the appellant submits that the sentence imposed by the trial judge was harsh and excessive.

Conviction Appeal

(1) The prior incident

[11] The Crown sought to introduce evidence of two prior incidents involving Davy and Atkins. About 1-2 months before the stabbing incident, Atkins said that Davy had taken $40 from him while she held a razor to his neck and a friend held a baseball bat over his head. Davy admitted she took $40 from Atkins, but denied Atkins description of the circumstances of the theft.

[12] The second incident took place about a week before Atkins was stabbed. Atkins testified that Davy warned him that she would rob him again because he was a “pussy”.

[13] A voir dire was held to determine the admissibility of evidence concerning these previous incidents. The trial judge ruled that the evidence could be admitted.

[14] On appeal, Davy contends that the trial judge erred in admitting evidence concerning the first incident because it had no probative value other than its tendency to show a disposition to commit a certain type of crime. Davy does not attack the admission of evidence relating to the second incident.

[15] While trial counsel (not Mr. Koziebrocki) opposed admission of the first incident, he conceded in argument before the trial judge that he was “not too concerned about the first statement” because its admission “could cut both ways” by providing Atkins with a motive to resent Davy and lie about her involvement in the stabbing incident.

[16] In my view, the trial judge did not err in admitting the evidence of both prior incidents. They provided contextual information about the relationship between Davy and Atkins, established animus against Atkins by Davy, and were relevant to a motive (i.e. robbery) for the stabbing incident. On all of these counts, the two prior incidents were not really similar fact evidence; rather they were part of the evidence relating to the stabbing incident.

[17] I also note that the appellant’s position, namely that evidence about the robbery should have been excluded whereas evidence about the threat of robbery was properly admitted, does not hold together logically. The reason for the threat of a second robbery was the success of the first robbery, a fact made explicit by Davy’s description of Atkins as a “pussy” during the threat. Thus the two prior altercations were interdependent. It would have been impossible for the jury to properly understand the second incident without knowing about the first incident. The trial judge’s decision that the probative value of the evidence outweighed its prejudicial effect is entitled to deference. I would not interfere, particularly given the view of trial counsel that the evidence had probative value in favour of the defence.

[18] Finally, in light of the relevance of the two prior incidents to context, animus and motive, and in light of trial counsel’s view that the evidence concerning the prior robbery “could cut both ways”, it was not necessary for the trial judge to include in his jury charge a specific caution about improper use of this evidence. The incidents were circumstantial evidence relating to the alleged crime.

(2) The instruction relating to parties

[19] The appellant submits that the trial judge erred in instructing the jury on parties as a basis of liability since the evidence tendered by the Crown was addressed to Davy being the perpetrator of the offence. Moreover, the appellant asserts that the trial judge erred in instructing the jury that Davy could be a party if the jury found that she omitted to do anything for the purpose of aiding any other person in committing the offence. The appellant contends that this instruction was in error because there was no evidence of any culpable omission by the appellant. Accordingly, the appellant contends that the trial judge should have instructed the jury that they could not find the appellant guilty if they believed she was a mere bystander or had a reasonable doubt whether she was a bystander.

[20] I do not think that the trial judge erred by including a parties component in his jury charge. Although most of the evidence at the trial was directed at whether Davy stabbed Atkins, there was some evidence, notably Atkins’ testimony, that a male also stabbed him. In these circumstances, the Crown requested that the trial judge instruct the jury on party liability. Defence counsel did not object to this request.

[21] As to the actual charge on this issue, it is true that the trial judge repeated the ‘omission’ language of s. 21 of the Criminal Code even though there was no evidence concerning anything Davy omitted to do that might have served as a basis for party liability. It is also clear that the jury were considering party liability during their deliberations, as evidenced by their first question which asked for assistance with respect to the “ ‘fore knowledge of’ or the ‘non-intervention’ of the crime”. Moreover, when the trial judge, in an effort to understand the question, asked the jury if it related to a party to the crime, the jury forewoman replied “indirect involvement.”

[22] In his initial jury charge, the essence of the trial judge’s instruction on party liability was:

In order to be a party to the offence, the Crown must prove beyond a reasonable doubt the essential ingredients that Miss Davy did or omitted to do something for the purpose of aiding any person to commit the offence of attempted murder, and, this is really the key, and, this is a key, that, in so doing Miss Davy knew that the other person or persons intended to kill Mr. Atkins. The Crown must prove that beyond a reasonable doubt.

In his response to the jury’s question about ‘non-intervention’ and ‘indirect involvement’, the trial judge simply repeated this instruction.

[23] It might have been preferable, especially in light of the jury’s question, for the trial judge to supplement his charge by saying specifically that Davy could not be found guilty if she was a mere bystander who witnessed, and did nothing to stop, the assault on Atkins. However, in my view, his failure to do so was not fatal. In the above passage, the words “Miss Davy did or omitted to do something” are linked immediately to the phrase “for the purpose of aiding any person to commit the offence”. This makes it clear that the act or omission must be a culpable one directly connected to the crime.

(3) Intent

[24] The appellant submits that the trial judge erred in his instructions with respect to the proof of intent when he said:

If you decide that the conduct of Ms. Davy would naturally have the effect of causing death, you are entitled to conclude that Miss Davy intended to cause Mr. Atkins’ death.

[25] In my view, this single sentence was more than offset by the trial judge’s repeated emphasis to the jury that in order to convict Davy on the charge of attempted murder the jury had to be satisfied beyond a reasonable doubt that Davy specifically intended to kill Atkins or that she had to know that others intended to kill him. For example, the trial judge stated:

In both cases, there must be that specific intent. In the first case where it is alleged by the Crown that Miss Davy did the stabbing, the Crown must prove beyond a reasonable doubt that she intended to kill the accused.

In the second, the Crown must prove, with respect to intent, in order to convict Miss Davy as being a party to the offence, that she knew that the other people or person intended to kill Mr. Atkins. It is as specific as that.

In each cash, she must either herself have intended to kill or, as a party, she must have known that the people she was aiding intended to kill Mr. Atkins.

[26] In my view, the trial judge’s charge on the question of intent was appropriate.

(4) Unreasonable verdict

[27] The appellant submits that the conviction is unreasonable and cannot be supported by the evidence. She contends that there was real confusion as to the nature of the assault. No weapon was ever found and various versions as to who actually stabbed Atkins were presented.

[28] I do not agree with this submission. Atkins’ testimony that he was stabbed by Davy was corroborated by an independent third party, the cab driver Omole, who knew Davy and was able to provide the police with an accurate description of her on the night of the offence. His testimony directly contradicted Davy’s evidence that she was only an innocent bystander. There was also evidence of motive and a prior threat and a prior robbery of Atkins by Davy. In short, there was abundant evidence on which the jury could find Davy guilty of attempted murder.

Sentence Appeal

[29] The trial judge imposed a sentence of seven years and four months. He gave credit, on a two-for-one basis, for 10 months in pre-trial custody.

[30] The trial judge reviewed the circumstances of the offence and the offender. He was alive to the relevant sentencing principles and case authorities. I cannot say that the sentence he imposed was demonstrably unfit.

Disposition

[31] I would dismiss the appeal from conviction. I would grant leave to appeal the sentence and dismiss the appeal.

“J.C. MacPherson J.A.”

ROSENBERG J.A.:

[32] I agree with MacPherson J.A.’s disposition of all of the grounds of appeal against conviction except for the instruction relating to parties. While the weight of the evidence was that the appellant actually stabbed the victim, it is possible that the jury convicted the appellant on the basis that she was a party to the offence under s. 21(1)(b) of the Criminal Code, and did so on the erroneous basis that she omitted to do something for the purpose of aiding the principal offenders. There was a factual basis for such a finding. The appellant admitted that she was present at the scene. Mr. Omole testified that two men were also involved in the altercation. Further, Mr. Omole admitted telling the police that “the guy with the black shirt punched him”, that the “smaller guy” stabbed him and that “the shorter boy … did the stabbing”. Admittedly, Mr. Omole offered an explanation for this apparent discrepancy, because of a language difficulty. Finally, while the victim was sure that the appellant was the actual perpetrator, his evidence was inconsistent with the physical evidence and with some of Mr. Omole’s testimony and, although he denied it, the victim was highly intoxicated at the time of the attack.

[33] It was therefore essential, if the trial judge intended to leave s. 21(1)(b) to the jury, that he make it clear that a mere bystander cannot be a party under s. 21(1)(b) and that presence at the scene cannot found liability under that provision on the basis of an omission unless the accused was under a duty to act. There was no suggestion that the appellant was under such a duty. The possibility that this jury found liability on the basis that the appellant was a party and did so on the basis of an omission is a real one given their reference to “indirect involvement” and “non-intervention of the crime” in their question.

[34] It is essential that jury questions be dealt with accurately and comprehensively. As Cory J. said in R. v. S. (W.D.) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.) at 6:

It is true that directions to a jury must always be read as a whole; however, it cannot ever be forgotten that questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. This is true for any number of reasons which have been expressed by this court on other occasions. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful matter. It may be that after a period of deliberation, the original instructions, no matter how exemplary they were, have been forgotten or some confusion has arisen in the minds of the jurors. The jury must be given a full and proper response to their question. The jury is entitled to no less. It is the obligation of the trial judge assisted by counsel to make certain that the question is fully and properly answered. [Emphasis added.]

[35] Unfortunately, in response to the jury’s question, the trial judge merely repeated his earlier instructions. The trial judge should have instructed the jury that the appellant could not be found to be a party by reason of her “non-intervention”, even if she knew that the principal offenders intended to kill the victim. The instructions actually given, however, were capable of misleading the jury into finding that the appellant was a party if she omitted to do something.

[36] I cannot agree that this misdirection and non-direction was not fatal because the instruction was linked to the requirement that the act or omission must have been for the purpose of aiding any person to commit the offence. In my view, all that one can safely conclude from that instruction is that the jury must have rejected the appellant’s evidence that she attempted to summon help for the victim and must have found that she failed to do something so that the two men could stab and rob the victim. However, absent some evidence of a common intention, to found liability under s. 21(2) those findings would not be sufficient to make the appellant a party to the offence. The trial judge did not charge the jury on s. 21(2).

[37] Notwithstanding the lack of objection by defence counsel at trial [not Mr. Koziebrocki] the respondent Crown has not demonstrated that no substantial wrong or miscarriage of justice occurred.

[38] Accordingly, I would allow the appeal, set aside the conviction for attempted murder, set aside the conditional stays on the counts of aggravated assault, assault causing bodily harm and assault with a weapon and order a new trial on all four counts. It is therefore unnecessary to consider the appellant’s sentence appeal.

RELEASED: September 25, 2000 “M. Rosenberg J.A.”

“I agree Robert J. Sharpe J.A.”