COURT OF APPEAL FOR ONTARIO

DATE: 20010419

DOCKET: C26161

RE: HER MAJESTY THE QUEEN (Respondent) v. LONG VAN MAI (Appellant)

BEFORE: DOHERTY, FELDMAN and SIMMONS JJ.A.

COUNSEL:

James C. Fleming

for the appellant

Lisa Joyal

for the respondent

HEARD: March 28, 2001

On appeal from the conviction imposed by Justice John F. Hamilton dated April 19, 1996 and the sentence imposed on June 17, 1996.

E N D O R S E M E N T

[1] The appellant was convicted of:

♦ using a firearm in the commission of an indictable offence;

♦ attempted murder of Bao Ho; and

♦ maiming Bao Ho.

[2] The offences all arose out of one incident. Mr. Ho’s sister and her friends had been involved in an ongoing dispute with another young girl who was the friend of the appellant. At some point, the appellant struck Mr. Ho’s sister. A day or so later Mr. Ho and a group of his supporters saw the appellant and two of his friends sitting in a car. Mr. Ho and his friends left their vehicle and surrounded the vehicle of the appellant. Three shots were fired from inside the vehicle. It was the position of the Crown that the appellant, who was sitting in the driver’s seat, fired a single shot into Mr. Ho’s chest from close range. Immediately before the shooting, Mr. Ho and the appellant had exchanged verbal insults and Mr. Ho had struck the appellant in the face. Mr. Ho was standing outside the vehicle and the appellant was seated in the driver’s seat when this confrontation occurred. Immediately after the shots were fired, the appellant fled the scene and drove to Kitchener.

[3] Several of the persons who had surrounded the appellant’s vehicle testified that the appellant shot Mr. Ho. These witnesses had given one or more previous contradictory statements in which they had either failed to identify the shooter or identified the shooter as the passenger in the front seat of the appellant’s car.

[4] The appellant testified and denied that he shot Mr. Ho. He said that he was sitting in the driver’s seat when the passenger in the vehicle reached across in front of him and fired at Mr. Ho.

[5] The trial judge properly instructed the jury that it could not convict the appellant of attempted murder unless satisfied beyond a reasonable doubt that he intended to kill Mr. Ho. After general instructions as to how intention might be inferred, the trial judge said:

Generally, it is a reasonable inference that a person who is sane and sober intends the natural consequences of his acts. So that when, for instance, a person points a loaded gun at another and at close range fires it directly at the head or chest of another, you, the jury, may reasonably infer that he meant to cause his death. What a man does surely is one of the guides to what he intends, and sometimes it is the only trustworthy guide.

If a person is aware that certain consequences will probably follow the act under contemplation and yet he deliberately pursues his course, you may generally infer that he intended those consequences to follow even though he may have hoped they would not.

I caution you, however, this is only an inference that may be drawn, not one which in every instance must be drawn. If, on all the facts as you find them to have been established in this case, you find it cannot be correctly inferred from the facts that the accused intended the natural consequences of his act or if you have a reasonable doubt about this issue, then the inference that the accused intended the natural consequences of his act should not be drawn.

[6] Counsel for the appellant objected to this instruction. He argued that the trial judge’s example of how an intention to kill might be inferred from the firing of a gun at close range into the chest of a victim, absent any reference to the context in which the shot was fired, severely prejudiced his client. Counsel observed that the jury might well find that the appellant’s conduct coincided exactly with the conduct of the shooter in the example given by the trial judge. He asked the trial judge to instruct the jury that in addition to the act, they should consider the circumstances in which the act occurred. Here, the circumstances would include the confrontational nature of the incident, its spontaneity, the heated verbal exchange, Mr. Ho’s assault on the appellant, and the fact that the gun was discharged out the window of a vehicle.

[7] The trial judge declined to recharge the jury. During its deliberations, the jury returned on two occasions seeking further clarification of the elements of attempted murder. On both occasions, the trial judge repeated his initial instruction without any elaboration. Counsel repeated his earlier objection.

[8] Trial judges must ensure that juries understand the relevant issues, the position of the parties on those issues, and the evidence relied on by the parties in support of their positions.

[9] The trial judge, despite repeated requests by counsel, did not refer to any of the evidence relevant to the question of the appellant’s intention, should the jury decide that he fired the shot that struck Mr. Ho. Even though that evidence was relatively brief and straightforward, we are satisfied in the circumstances of this case the trial judge’s failure to refer to any of that evidence constituted non-direction amounting to misdirection. We reach that conclusion for the following reasons:

♦ The example used by the trial judge to explain the “common sense inference” that a person intends the natural consequences of his act was a dangerous one. It tracked the allegation made by the Crown in this case, but failed to include any of the pertinent circumstances surrounding the discharge of the weapon. It virtually invited the jury to infer intention from the act of firing the weapon at close range into the chest of the victim without regard to the surrounding circumstances and the events which precipitated the firing of the weapon.

♦ The jury was having a great deal of difficulty with the attempted murder instruction. This indicates that they had decided beyond a reasonable doubt that the appellant fired the weapon. Having decided that the appellant fired the gun, intent was the only question left for the jury. They were obviously having difficulty with that issue. The trial judge should have reviewed the evidence relevant to that issue with the jury.

♦ In his closing argument, counsel could not marshal the evidence in support of the contention that the appellant did not intend to kill when he fired the gun. It was the defence position that the appellant did not fire the gun and it would have been tactically unsound for counsel to have reviewed the evidence going to the question of the appellant’s intention. Intention was, however, a live issue once the jury determined that the appellant had fired the gun. As defence counsel could not review the evidence, it fell to the trial judge to ensure that the jury was aware of the evidence that could assist them in determining whether the appellant intended to kill when he fired the weapon.

[10] The non-direction with respect to the evidence relevant to the question of the appellant’s intention is the only ground of appeal that has merit. That ground affects only the conviction on the attempted murder charge. However, all counts related to the same event. Were we to order a new trial only on the attempted murder charge, the appellant could plead autrefois convict based on his conviction on the maiming charge. If there is to be a new trial it would have to be on all counts.

[11] During argument, Crown counsel indicated that if the court were inclined to grant a new trial as the result of the non-direction on the issue of the appellant’s intention, the Crown would be content with a conviction on the maiming charge and would not seek a new trial on the attempted murder charge. The validity of the conviction on the maiming charge is not affected by the misdirection. The misdirection also has no effect on the conviction on the charge of using a firearm in the commission of an indictable offence.

[12] In the light of the position taken by the Crown, we would dispose of the appeal by quashing the conviction on the attempted murder charge and entering an acquittal on that charge. The convictions on the two other counts will stand.

[13] It remains to consider the appropriate sentence given that the appellant no longer stands convicted of attempted murder. Counsel did not have a full opportunity to address this issue in their oral submissions. Both agreed that they could address the issue of sentencing in written submissions. Those submissions should be exchanged and filed with the court within 14 days of the release of these reasons.

“Doherty J.A.”

“K. Feldman J.A.”

“J. Simmons J.A.”