COURT OF APPEAL FOR ONTARIO

DATE: 20000606

DOCKET: C24525

LABROSSE, GOUDGE and BORINS JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

DONALD HART

Appellant

Murray H. Shore,
for the appellant

Philip Downes,
for the respondent

Heard: June 5, 2000

On appeal from his conviction by Madam Justice M. P. Eberhard,
sitting with a jury, on October 13, 1995 and from the sentence
imposed on December 8, 1995

LABROSSE J.A.:

[1] The appellant was convicted on twenty-two counts which arose
out of three sets of offences. The counts dealt with the
general activities of the appellant in the Orillia region and
related to the theft and possession of explosives, the causing of
an explosion of a bank and threats against a judge and a police
headquarters. He pled guilty to seven of the counts relating to
the theft and possession offences.

[2] The appellant, who has abandoned his appeal from the
convictions arising out of the explosion of the bank, challenges
the remaining convictions on the basis that the charge to the
jury was inadequate with respect to (1) the manner in which the
jury should assess the evidence (a “Miller”error), (2) the
requirement of unanimity and (3) the concept of reasonable doubt
(a “Lifchus error”). The appellant challenges six of the
convictions on the basis of (4) an error in jury instructions on
recent possession and (5) unreasonable verdict. The appellant
also challenges the seven convictions on which he pled guilty, as
well as two other counts, on the basis that (6) his entrapment
application was improperly curtailed.

1. The Miller error

[3] The instruction to the jury, relating to the manner in which
evidence is to be assessed, was less than perfect, keeping in
mind that the instruction was given some four years after the
decision of this court in R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 68 C.C.C. 517.

However, the Miller error is tempered by two specific
instructions given by the trial judge after her instruction on
pooling the evidence. The jury was instructed to consider all of
the evidence in order to determine if the Crown had proved its
case beyond a reasonable doubt. The jury was also warned about
approaching the evaluation of the evidence in a piecemeal
fashion. Furthermore, this was not a case where exculpatory
evidence had to be considered. In these circumstances,
considering the charge as a whole, we are not persuaded the
Miller error would have left the jury with the impression that
only the evidence accepted as true and reliable could be used on
the application of reasonable doubt.

2. The unanimity requirement

[4] As seen in many of the cases where an error is said to have
been made on the meaning of unanimity, the instruction in this
case did not exclude the right of jurors to disagree upon the
verdict. On the contrary, the instruction specifically referred
to the right to disagree: “It is your right as jurors to
disagree, but I know you will do your best to come to an
agreement.” Accordingly, the jurors would not have thought that
they were under an obligation to agree upon a verdict.

3. The Lifchus error

[5] On the meaning of reasonable doubt, the trial judge used two
phrases that were disapproved of in Lifchus. The decision in
Lifchus was rendered two years after the present case. However,
the trial judge also used much of the phraseology approved in
that decision. The instruction used by the trial judge conforms
with similar instructions which have been held, by this court,
not to give rise to a reversible error. In our view, on reading
the charge as a whole, the jury would not have been under a
misapprehension as to the correct standard of proof.

4. The recent possession instruction

[6] As a result of a question from the jury relating to one of
the counts (the Hydro break-in) the trial judge recharged the
jury. She adequately explained the doctrine of recent possession
and reviewed the evidence relating to that count. In our view,
there was no real risk that the jury would have misused the
doctrine of recent possession in relation to other theft
offences. In any event, we would have no hesitation in applying
s. 686 (1)(b)(iii) of the Criminal Code on this issue.

5. Unreasonable verdict

[7] The ground of appeal based on unreasonable verdict relates
to the threatening charges. The jury was properly instructed on
the correct approach to their assessment of the nature of the
appellant’s comments. There was evidence which could form the
proper basis for the finding that the threats had been made. The
verdict is one that a properly instructed jury, acting
judicially, could reasonably have rendered.

6. Improper curtailment of entrapment application

[8] While the trial judge was in error in restricting her
consideration of entrapment to the evidence heard during the
trial, we are not persuaded that the appellant was deprived of
the ability to properly prove entrapment. Both at trial and on
the entrapment hearing, the appellant provided his views
extensively as to why he alleged entrapment. It is hard to see
what more he could have said on that issue. Even if these views
were not considered by the trial judge, we would do so, and apply
the proviso. In addition, in our view, the exclusion of what was
said from consideration would not have affected the disposition
of this issue. Moreover, the evidence did not demonstrate that
the conduct of the police officer had gone beyond normal police
activities in an undercover operation. There was a proper basis,
on the evidence, for the trial judge’s conclusion that “never
have I heard evidence so compelling of an individual with a
demonstrated and stated desire to commit criminal offences in
general, and including the type of ” offences in question.

[9] We would, accordingly, dismiss the appeal against
conviction. It should be said that the case against the
appellant was overwhelming and we see no basis to doubt the
correctness of the verdict.

[10] The appellant was sentenced to twelve years’ imprisonment.
In detailed reasons for sentence, the trial judge recognized all
the relevant principles and found that the most important factor,
in this case, was the need to protect the public from the
appellant’s dangerous fascination with explosives. We do not
agree that she failed to give sufficient weight to the principle
of totality. Although the appellant had never received a
penitentiary sentence, he was no stranger to the judicial system.
Given the seriousness of some of the offences, which included
threats to life and property, which the trial judge found to be
striking at the heart of the administration of justice, and an
act of destruction of property, a lengthy sentence was required.
While the total sentence may be at the high end of the range for
these types of offences, we see no error which would justify
interference by this court.

[11] Leave to appeal the sentence is granted and this appeal is
also dismissed.

(signed) "J. M. Labrosse J.A."

(signed) "I agree S. T. Goudge J.A."

(signed) "I agree S. Borins J.A."

RELEASED: June 6, 2000