COURT OF APPEAL FOR ONTARIO

DATE: 20001220

DOCKET: C28404

RE: HER MAJESTY THE QUEEN (Respondent) v. CAROL ANDREWS (Applicant/Appellant)

BEFORE: OSBORNE A.C.J.O., CARTHY and LASKIN JJ.A.

COUNSEL: Charles Ryall

for the appellant

David Lepofsky

for the respondent

HEARD: December 13, 2000

On appeal from the conviction imposed by Justice Patrick R.T. Gravely, sitting with a jury, dated March 3, 1997.

E N D O R S E M E N T

[1] The appellant has raised three issues. They are:

(1) The sufficiency of the charge on intent, particularly in respect of the appellant’s apparent consumption of two prescribed anti-depressants.

(2) The charge on the burden of proof and reasonable doubt.

(3) Certain conduct of Crown counsel at the appellant’s trial.

The Charge on Intent

[2] In our view, the charge on intent generally was adequate. The trial judge made it clear to the jury that they first had to consider whether the appellant intended to shoot the deceased. This was an issue because the appellant’s position was that the shooting was an accident. The trial judge went on to explain to the jury that to convict the appellant of a murder, the jury had to be satisfied beyond a reasonable doubt that the appellant intended to kill the deceased or that she intended to cause him grievous bodily harm, as set out in s. 229(a)(ii) of the Criminal Code. We see nothing in the evidence that would require the trial judge to include in his charge on intent a reference to the evidence that the appellant took two anti-depressants (Prozac and Lorazepam) on a regular basis. This aspect of the evidence was not part of the appellant’s defence at trial. Her defence counsel, not Mr. Ryall, made no reference to these anti-depressants in his closing submissions; nor did he object to the failure of the trial judge to refer to this medication in the charge. We see no merit in this ground of appeal.

The Charge on the Burden of Proof of Reasonable Doubt

[3] The charge on reasonable doubt was sufficient, although it did not meet the standards set out in R. v. Lifchus. The jury would have understood that the Crown bore the burden of proof throughout and it could only be satisfied if the Crown proved all elements of second degree murder (the offence of which the appellant was convicted) beyond a reasonable doubt. The trial judge in this pre-Lifchus case defined reasonable doubt without reference to the balance of probability at one end of the scale and absolute certainty at the other. Nonetheless, we are satisfied that when the charge is read as a whole, there is no reasonable likelihood that the jury would have misunderstood the burden of proof and what was required to discharge it. We would, therefore, not give effect to this ground of appeal.

The Conduct of the Crown at Trial

[4] We did not call on the Crown to respond to the appellant’s submissions concerning various aspects of Crown counsel’s cross-examination of the appellant. Although, we do not want to be taken to have endorsed Crown counsel’s conduct, we do not think that those parts of the appellant’s cross-examination about which the appellant complains gave rise to an unfair trial. Thus, we would not give effect to this ground of appeal.

[5] In the result, the appeal is dismissed.

“C.A. Osborne A.C.J.O.”

“J.J. Carthy J.A.”

“John Laskin J.A.”