DATE: 20010126

DOCKET: C29584

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. JEFFREY WHYTE (Applicant/Appellant)

BEFORE: FINLAYSON, LABROSSE and LASKIN JJ.A.

COUNSEL: Frank Addario, for the appellant

Alexander V. Hrybinsky, for the respondent

HEARD: January 23, 2001

On appeal from his conviction by Justice Eugene G. Ewaschuk, sitting with a jury, on October 8, 1997 and from the sentence imposed on October 17, 1997

E N D O R S E M E N T

[1] The appellant was charged with murder and attempted murder following a confrontation at a housing project between the appellant and his alleged confederate, Rodger James, and two young men, Lawrence and Alkins. As a result of the confrontation, a shooting occurred and Alkins was killed.

[2] On October 8, 1997, the appellant was found not guilty of both charges by a court composed of a judge and jury. However, he was found guilty of the included offence of manslaughter with respect to the first charge. He was sentenced to fourteen years in the penitentiary and a lifetime firearm prohibition was imposed on him.

[3] The appellant was also charged with possession of a restricted weapon on a subsequent occasion for which he pleaded guilty on November 18, 1997. He was sentenced to three years’ imprisonment consecutive to the first sentence and a further lifetime firearm prohibition was imposed.

[4] The appellant appeals the conviction for manslaughter and the sentences imposed.

[5] With respect to conviction, it is clear from the verdict that the jury did not find that it was the appellant who shot Alkins. In light of the verdict, the appellant submits that the trial judge erred in the manner in which he charged the jury as a party under s. 21(2) of the Criminal Code, specifically with respect to his direction on common intention and the likelihood of bodily harm. It is also submitted that the trial judge misstated the evidence with respect to the timing of the shooting.

[6] The principle objection of the appellant to the trial judge’s instructions to the jury on common intention is that he did not stress that it was for the jury to decide whether there was a common intention, and if so, when the common intention was terminated and whether the shooting occurred in carrying out the common intention. Given that it was undisputed that the appellant and his confederate went to the housing project to commit a robbery of a drug dealer and had armed themselves accordingly, the only live issue was whether that common intention continued when they were confronted by the two unarmed young persons whom they promptly proceeded to rob at gun point. The appellant contends, however, that even assuming a common intention to rob the two young people, the trial judge did not fairly leave for the jury to decide whether this plan had terminated when the robbery was complete and before the confederate fired his gun, killing one of the young persons. We find no merit in this contention.

[7] The appellant takes exception to this part of the charge:

The Crown must satisfy you beyond a reasonable doubt that the accused and Rodger James were acting together in concert in committing the robberies. Even if the robberies of Lawrence and Alkins arose spontaneously, as claimed by the defence, it is open to you to be satisfied beyond a reasonable doubt that the accused and James had formed an intention in common to rob Lawrence and Alkins and to assist each other in carrying out the robberies. You may infer that from their actual conduct. The common intent to rob may be implicit and may be inferred as stated from the conduct of the criminal confederates. There need not have been an explicit agreement to rob some specific person so long as the common purpose was to rob someone in general.

Furthermore, the common purpose is not terminated, I repeat, is not terminated once the last item was taken from a victim. Part of any common purpose is to escape safely from the scene of the crime. Thus the common purpose is deemed to have continued until the criminal confederates have all left the scene and may even continue thereafter in a case of hot pursuit by the police. The fact that Cameron Alkins was shot a few seconds after the last item was taken from him or Lawrence is immaterial and may be viewed as an integral step in the carrying out and termination of the robberies which continued until the robbers had safely left the area.

[8] The first paragraph is unexceptional. It is submitted that the second paragraph determines that as a matter of law that the common purpose must include an escape from the scene of the crime.

[9] We do not read the paragraph this way. It is not an instruction as to the law but a comment on the reality of the facts in this case. The confrontation with the young persons, the robbery and the killing took a matter of minutes. In these circumstances there is no air of reality to the suggestion that the common intention could have terminated before the appellant and his confederate had left the scene of the crime.

[10] With respect to the likelihood of bodily harm, the evidence established the appellant to be a willing party to a robbery with an armed accomplice. Moreover, we see no error in the charge on this issue.

[11] Finally, as to the alleged error with respect to the timing of the shooting, it is not clear that the trial judge misstated the evidence or drew an improper inference. In any event, this evidence is of little or no importance to this case.

[12] The evidence of the appellant’s guilt in this case was overwhelming. It must also be remembered that the appellant did not testify nor call any witness in his defence. We see no basis to doubt the correctness of the verdict.

[13] The appellant received the equivalent of a fifteen-year sentence for the manslaughter conviction and three years for the weapon offence. In light of his lengthy criminal record, which includes six prior firearm related offences, the fact that he was unlawfully at large from the penitentiary at the time of the offence and the circumstances of the offence, the appellant reaches the level of “worst offender” as a secondary party. In addition, when he was arrested for this crime, the appellant was armed with a very dangerous restricted weapon. This is an additional aggravating circumstance. In our view, the sentences were fit and we see no basis upon which to interfere.

[14] In the result, the appeals against conviction and sentences are dismissed.

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”

(signed) “John Laskin J.A.”