COURT OF APPEAL FOR ONTARIO

DATE: 20011107
DOCKET: C27890

DOHERTY, GOUDGE and SIMMONS JJ.A.

B E T W E E N :

Michael Code and

HER MAJESTY THE QUEEN

Jonathan Dawe

for the appellant

Respondent

• and -

Alex Alvaro

for the respondent

RAYMOND LESLIE VARGA

Appellant

Heard: February 27-28, 2001

On appeal from the conviction imposed by Justice Robert A. Blair, sitting with a jury, dated November 7, 1996 and the sentence imposed on December 19, 1996.

DOHERTY J.A.:

I

[1] The appellant shot three people in the head. Christopher Spence died, Martin Hooper was in a coma for months but survived, and Virginia Suzana suffered a fractured skull but also survived. The appellant was tried on one count of murder and two counts of attempted murder. He was convicted of manslaughter (count 1), unlawfully attempting to cause bodily harm to Mr. Hooper (count 2), and the attempted murder of Ms. Suzana (count 3).

[2] The trial judge imposed a sentence of 12 years on the manslaughter conviction, 6 years on the unlawfully attempting to cause bodily harm conviction and life on the attempted murder conviction. The appellant was in custody for about 22 months prior to sentence.

[3] The appellant appeals his conviction and sentence. Counsel advanced five arguments on the conviction appeal:

♦ The trial judge erred in finding that the police did not violate the appellant’s right under s. 7 and s. 11(d) of the Charter when they failed to permit counsel to obtain a sample of the appellant’s blood and/or urine in a timely manner while the appellant was in custody.

♦ The trial judge erred in refusing to admit evidence that the deceased Spence drugged and stabbed a person nine years before the shooting.

♦ The trial judge’s reasonable doubt instruction is not in substantial compliance with the principles set out in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.).

♦ The trial judge misdirected the jury as to the onus of proof as it applied to self-defence.

♦ The conviction of the appellant for attempted murder of Ms. Suzana is inconsistent with his acquittal on the charges of murdering Mr. Spence and attempting to murder Mr. Hooper.

[4] I would dismiss the appeal.

II

[5] Identity was not an issue. The appellant testified that he shot the victims. He fired two shots into Mr. Hooper, followed quickly by two shots into Mr. Spence and then, again quickly one shot into Ms. Suzana. He said that he shot Mr. Hooper and Mr. Spence in self-defence and that when he shot Ms. Suzana it was a “reflex action”.

[6] The murder charge raised three issues:

♦ Did the Crown prove that the appellant did not act in self-defence?

♦ Did the Crown prove, having regard to all of the circumstances, including the appellant’s ingestion of cocaine and heroin, that the appellant had one of the culpable states of mind required by s. 229(a) of the Criminal Code?

♦ Did the Crown prove that the appellant was not provoked as defined in s. 232 of the Criminal Code?

[7] The verdict of manslaughter indicates that the jury was satisfied that the appellant did not act in self-defence. The verdict also indicates that the jury was either not satisfied that the appellant had one of the requisite intents, or that even if he had one of those intents, the Crown had failed to prove that he was not provoked.

[8] There were two issues raised on the attempted murder charges:

♦ Did the Crown prove that the appellant had not acted in self-defence when he shot Mr. Hooper and/or Ms. Suzana?

♦ Did the Crown prove that the appellant intended to kill Mr. Hooper and/or Ms. Suzana?

[9] The verdict of unlawfully attempting to cause bodily harm to Mr. Hooper indicates that the jury was satisfied that the appellant did not act in self-defence, but was not satisfied that the Crown had proved that the appellant intended to kill Mr. Hooper. The verdict of attempting to murder Ms. Suzana indicates that the jury was satisfied that the appellant did not act in self-defence and did intend to kill Ms. Suzana.

III

[10] The appellant was a drug dealer and a heavy user of drugs. He dealt in relatively large amounts of cocaine and prided himself on the quality of the product he distributed. He always carried a loaded handgun.

[11] The appellant and Mr. Spence were friends, had been in jail together and had been partners in crime. In the days immediately prior to the shooting, the appellant had encouraged Mr. Spence to become involved in his drug distribution schemes. Mr. Hooper was a friend of Mr. Spence and did not know the appellant before the shooting. Ms. Suzana was a long-time friend of Mr. Spence and also did not know the appellant. The shootings occurred in her apartment.

[12] The shootings occurred on the morning of February 10, 1995. About four days earlier, the appellant had acquired a large amount of cocaine and offered to supply some of that cocaine to Mr. Spence for resale. On February 9th, the appellant drove to Shelburne, Ontario with Mr. Spence. Both men consumed heroin. The appellant spent that evening with his girlfriend. He consumed cocaine. His girlfriend described him as “really, really high” and “paranoid”.

[13] At about 3:00 a.m. on February 10th, Mr. Spence called the appellant and asked him to come over to Ms. Suzana’s apartment. Mr. Spence said that he had a buyer for some of the cocaine. The appellant put a large amount of cocaine and a loaded .357 magnum pistol into a gym bag, placed a loaded .25 calibre Colt pistol into his pocket and made his way to Ms. Suzana’s apartment.

[14] When the appellant arrived at Ms. Suzana’s apartment, he divided the cocaine into one ounce amounts. After some discussion, he gave Mr. Spence one ounce and told him to give it to the prospective purchasers as an indication of the quality of the product they could acquire. Mr. Spence left with the one ounce of cocaine. Before leaving, he and the appellant took drugs. After Mr. Spence left, the appellant consumed more drugs.

[15] Mr. Spence went to Mr. Hooper’s apartment in the early morning of February 10th. Mr. Hooper knew nothing about the purchase of cocaine from the appellant, and it would appear that Mr. Spence had lied about the existence of prospective purchasers. Mr. Spence asked Mr. Hooper to go with him to Shelburne. He said that they had to pick up “Ray” [the appellant] before going to Shelburne. Mr. Hooper and Mr. Spence went to Ms. Suzana’s apartment. After they arrived, more drugs were consumed by the appellant and Mr. Spence.

[16] The atmosphere in the apartment became tense. The appellant, with very good reason, came to believe that Mr. Spence, perhaps with the assistance of Mr. Hooper, was trying to steal his cocaine. Eventually, all four persons were in the small kitchen area. Mr. Spence offered the appellant a syringe full of drugs. The appellant, again with some justification, believed that the syringe contained a lethal dose of heroin. Mr. Spence had previously told the appellant that injecting someone with an overdose of drugs was an ideal way to commit murder. He had told the appellant that he had “O.D.’d” people in the past.

[17] The appellant, Mr. Hooper and Ms. Suzana all testified as to how the shootings occurred. The evidence of self-defence came exclusively from the appellant.

[18] Mr. Hooper testified that after the appellant refused to take the syringe offered by Mr. Spence, Mr. Spence appeared to be injecting the syringe into his own arm. The appellant drew two pistols and opened fire at Mr. Hooper. A shot hit Mr. Hooper in the back of the head and a second shot hit him as he fled towards the door. He collapsed outside the apartment.

[19] Mr. Hooper denied attacking the appellant with a knife. He knew that the appellant was armed with a gun and he was unarmed. He did indicate that shortly before the shooting he had seen a knife which he thought belonged to his son sitting on the table. Mr. Spence handed Mr. Hooper the knife and he put it in his pocket. That knife was found beside Mr. Hooper’s body in a pool of blood. Forensic testing showed that the blood on the knife came exclusively from Mr. Hooper.

[20] The appellant testified that he feared that Mr. Spence was trying to give him an overdose of heroin. He pulled out his Colt revolver, pointed it at Mr. Spence and told him to take the drugs himself. Mr. Spence emptied some of the contents of the syringe, injected himself with the remainder and turned away from the appellant. The appellant put his gun back into his pocket. Mr. Hooper then attacked the appellant and tried to stab him with a knife. They struggled, the appellant pulled out his revolver and shot Mr. Hooper in self-defence. He said that he fired a second time because Mr. Hooper did not stop after the first shot. Mr. Hooper was shot in the back of the head and in the buttocks. It is highly unlikely that he was facing the appellant when either shot was fired.

[21] The appellant testified that after he shot Mr. Hooper in self-defence, he turned and shot Mr. Spence twice. Mr. Spence was standing at the stove with his back to the appellant. A syringe was found in his hand. The appellant said that he had seen two knives on the stove and he feared that Mr. Spence would come at him with one of the knives. Mr. Spence was shot in the back of the head and through the left armpit. It is highly unlikely that he was facing the appellant when either shot was fired.

[22] Ms. Suzana testified that Mr. Spence approached the appellant with a syringe that appeared to contain a lethal overdose of heroin. The appellant stepped back, pulled out his gun and told Mr. Spence to inject himself. Mr. Spence did so and then moved back towards the stove. At this moment, the appellant shot Mr. Hooper. Ms. Suzana did not see any struggle between Mr. Hooper and the appellant before the appellant opened fire. One of the shots fired at Mr. Hooper went over her head. She dropped to her knees. Ms. Suzana was then struck in the head with a bullet and collapsed. Expert medical evidence indicated that Ms. Suzana was sitting or kneeling down with her head bent when shot. The shooter was above and in front of her. The bullet did not enter her brain. If Ms. Suzana’s head had been angled slightly differently the bullet would have entered her brain and would likely have killed her.

[23] Immediately after the shootings, the appellant fled the apartment. He threw both guns and the gym bag containing cocaine away as he fled. They were later recovered at various locations. The appellant also attempted to hijack a car and later broke into a residence. The appellant was arrested a short distance from that residence at about 9:00 a.m.

[24] There was uncontested evidence that the appellant was under the influence of drugs before, during and after the shootings.

IV

A: The Alleged Violation of the Appellant’s Rights under s. 7 and s. 11(d) of the Charter

(i) Overview

[25] The appellant appeared to be under the influence of cocaine or some other drug when he was arrested. He still appeared to be “high” when he was first seen by his lawyer some 11 or 12 hours after the shootings. It was apparent from the early stages of the investigation that identity was not likely to be an issue, but that the appellant’s mental state when the shootings occurred could be relevant to his liability.

[26] At about 8:15 p.m., after speaking with the appellant, Mr. Breen, a lawyer, advised the police that he wished to obtain a sample of the appellant’s blood. At about 11:30 p.m., Mr. Breen left the police station without having obtained that sample. It was argued at trial that the police deliberately refused to co-operate in efforts to acquire that sample until sufficient time had passed so that any sample that might be taken would be of no use to the defence. It was argued at trial that the police conduct amounted to a breach of the appellant’s rights under s. 7 and s. 11(d) of the Charter. On appeal, the same sections of the Charter were relied on, although counsel set forward a somewhat different basis upon which he alleged those sections had been breached.

(ii) The Evidence

[27] This ground of appeal turns on the evidence and the factual findings of the trial judge. A detailed summary of the evidence is necessary.

[28] The appellant was arrested for break and enter at about 9:00 a.m. He became aware later that morning that he was also under investigation for the shootings which had occurred in the vicinity of the break and enter. Some time in the afternoon, he spoke on the telephone to a lawyer at the law firm of Rosen, Fleming. She believed that the appellant was “high” and passed that information on to Mr. Breen.

[29] The appellant was charged with murder at about 6:00 p.m., some two hours after Mr. Spence died. Staff Sergeant McDermott assumed carriage of the investigation. It was obvious to him that the appellant was coming down from a drug induced high. The appellant was given his right to counsel after he was charged with murder and elected to contact the firm of Rosen, Fleming again. He spoke to Mr. Breen, who also spoke with Staff Sergeant McDermott to make sure that he understood that the appellant was exercising his right to remain silent.

[30] Mr. Breen spoke on the telephone to the senior partner, Mr. Rosen, who it was anticipated would act for the appellant. Mr. Rosen suggested that someone from the office should go to the police station to speak with the appellant. Mr. Breen sent a student, however, Staff Sergeant McDermott declined to allow that student to speak to the appellant. Mr. Breen, on Mr. Rosen’s instructions, attended at the station himself. He arrived there shortly before 8:00 p.m. and spoke to Staff Sergeant McDermott who advised him of some of the information that had been gathered in the investigation.

[31] After speaking with Staff Sergeant McDermott, Mr. Breen spoke with the appellant at about 8:00 p.m. It was evident to him that the appellant was “high” on drugs. He concluded, based on the information given to him by Staff Sergeant McDermott and his observations of the appellant, that intoxication might well be a relevant issue. Mr. Breen decided that a sample of the appellant’s blood might be useful in the defence of the appellant. He spoke with Mr. Rosen and reviewed the situation with him. Mr. Rosen instructed Mr. Breen to try to get a sample of the appellant’s blood.

[32] Mr. Breen approached the officers at the front desk of the police station at about 8:15 p.m. He asked to speak with Staff Sergeant McDermott and was told that he was busy interviewing certain witnesses. Mr. Breen told the officer behind the desk that he wanted to get a sample of his client’s blood. Mr. Breen was unaware of any protocol that might exist covering his request. He had never made such a request before. Initially, he believed that the police would have the facilities available to take the sample. In his cross-examination, Mr. Breen made it clear that if the police had taken the sample, he anticipated that they would keep the sample. He said:

… I requested the police’s assistance in taking the sample. And I simply assumed – I certainly would not have objected, this would have been part of the police investigation of the suspect and they would have been entitled to the blood sample. I would never have requested that any portion be given to me. …

[33] Mr. Breen spoke to the officers at the desk about the availability of the necessary personnel and material to take a blood sample from his client. He also repeated his request to speak to Staff Sergeant McDermott. The officers at the desk were not helpful, and Mr. Breen decided to take the initiative and arrange for someone to attend at the police station to take the blood sample. After several fruitless calls to hospitals, Mr. Breen spoke to Mr. Fleming, a partner in the Rosen, Fleming law firm, and Mr. Fleming made arrangements to attend at the police station with a nurse. They arrived between 10:30 and 11:00 p.m.

[34] Staff Sergeant McDermott completed his interviews at about 9:30 p.m. He became aware that Mr. Breen was waiting to see him and went to speak with Mr. Breen. Mr. Breen indicated he wanted to take a sample of the appellant’s blood. There was considerable dispute between Mr. Breen and Staff Sergeant McDermott as to what was said in this conversation. Mr. Breen said that Staff Sergeant McDermott made it clear that he was not interested in co-operating with the defence. Staff Sergeant McDermott said that he did not know what to do as he had never had a request like this. He testified that he was interested in getting a sample for comparative purposes if any sample was taken from the appellant, and given the obvious security concerns, he was not prepared to take the appellant to a hospital for the purposes of taking a sample.

[35] Mr. Breen and Staff Sergeant McDermott agreed that this conversation ended with Staff Sergeant McDermott indicating that he would seek the advice of Senior Crown Counsel. In his evidence, Mr. Breen agreed that it was reasonable for Staff Sergeant McDermott to seek the advice of Crown counsel.

[36] As it was a Friday night, it took Staff Sergeant McDermott some time to locate Mr. Culver, the Senior Crown Attorney. He spoke with Mr. Culver at about 10:30 p.m. Mr. Culver advised Staff Sergeant McDermott that he should permit the sample to be taken, but should take the position that any sample taken must be shared with the Crown.

[37] At about the same time Staff Sergeant McDermott was speaking to Mr. Culver, Mr. Fleming and the nurse arrived. [1] Mr. Breen decided that he would also like a urine sample. There had been no previous discussion about taking a urine sample.

[38] Mr. Breen and Staff Sergeant McDermott discussed the nurse’s qualifications, the means by which the blood sample would be taken, and the suitability of the receptacle that Mr. Breen planned to use for the urine sample. Staff Sergeant McDermott told Mr. Breen that further to his discussions with Mr. Culver, it was his position that the police should receive a portion of any blood sample taken from the appellant. There was no discussion as to what use, if any, the police might make of that sample.

[39] Mr. Breen testified that he was not prepared to share any sample with the police if he was required to make all of the arrangements to get the sample himself. As he put it:

… It was only when I was put in the position that I had to take the sample myself that I asserted exclusive possession, a right or exclusive possession to the sample because in my view it wasn’t part of the police investigation because they didn’t want to participate.

[41] Staff Sergeant McDermott remained concerned about the way the nurse proposed to draw the sample from the appellant. She was going to use an ordinary syringe and not equipment specifically adopted for drawing blood samples. The appellant was an intravenous drug user and Staff Sergeant McDermott was concerned about the safety of those involved in taking the sample. The nurse was prepared to take the sample with the equipment she had.

[42] Staff Sergeant McDermott spoke to Mr. Culver for a second time at about 11:15 p.m. Mr. Culver told him to let the nurse go ahead and take the sample. Staff Sergeant McDermott also raised the question of the urine sample which Mr. Breen had first mentioned about fifteen minutes earlier. Mr. Culver said he saw no need for a urine sample.

[43] Staff Sergeant McDermott then phoned a nearby hospital and made arrangements for the police to pick up the equipment necessary to take a blood sample. The hospital was a few minutes away from the police station.

[44] Staff Sergeant McDermott advised Mr. Breen that he had made arrangements to have the appropriate equipment picked up by the police at a nearby hospital so that the nurse could take the blood samples at the police station. Mr. Breen became upset and accused Staff Sergeant McDermott of stalling. Mr. Breen spoke to Mr. Rosen and told him that he did not think the police were going to co-operate. Mr. Rosen agreed with this assessment and, with Mr. Rosen’s concurrence, Mr. Breen left the police station at 11:27 p.m. The nurse and Mr. Fleming followed. No blood sample was ever taken.

[45] In his testimony, Mr. Breen made it clear why he left the police station. He said:

… And I can tell you that frustration had a lot to do with it as well. This was a Friday night and I had been sitting at the Division for four hours and I’m no further ahead than I was when I first made the request. And quite simply, my patience had run out. And I wasn’t prepared to wait any longer. My view of the situation was that I was being obstructed and this was going to continue. I had no confidence that anyone was ever going to show up from the hospital. [Emphasis added.]

[46] Mr. Breen was convinced that Staff Sergeant McDermott was not prepared to provide any assistance to the defence and that he would continue to obstruct the taking of any blood sample until the results of that sample could not assist the defence but might assist the prosecution. Neither Mr. Breen nor Staff Sergeant McDermott knew whether a blood sample taken more than 12 hours after the event would assist in determining the level of drugs in the appellant’s blood at the time of the shootings. They also did not know what effect further delay would have on the value of any samples. Mr. Breen proceeded on the reasonable assumption that the longer the delay, the less use the sample would be to the defence.

[47] The defence did not call any expert evidence to indicate what use, if any, evidence of the blood or urine samples might have been to his defence. Nor did the defence call any evidence to indicate what significance, if any, the alleged delay in the taking of the samples had on the probative value of the results of any such samples.

[48] The Crown called Dr. Mayers, a toxicologist and pharmacologist. He testified that if a person had last ingested cocaine and/or heroin some 12 hours earlier, he would not expect to find cocaine or heroin in that person’s blood system, even if that person had ingested high quality cocaine or heroin in large amounts. He did indicate that a blood sample taken 12 hours after ingestion may well reveal a substance called benzoylecgonine, a derivative of cocaine which would indicate that the person had taken cocaine in the previous 24 to 48 hours. The presence of benzoylecgonine would not provide any assistance as to when the cocaine was taken, or the level of cocaine in the person’s system at a specific point in time. Dr. Mayers further testified that for forensic purposes there would be very little difference in a sample taken 12 hours after a person’s last ingestion of cocaine and a sample taken 14 hours after the last ingestion.

(iii) The Arguments

[49] The trial judge held that the appellant’s rights under s. 7, and his right to make full answer and defence under s. 11(d) placed an obligation on the police to permit access to the appellant for the purposes of obtaining a blood or urine sample. The trial judge described the obligation in these terms:

There is a obligation on the part of the police – as an emanation of the Crown – in my opinion, to permit reasonable access to an in-custody accused in response to a timely, genuine and reasonable request by defence counsel, for purposes of allowing blood or urine samples to be taken of the accused where the taking of such samples is necessary to collect and preserve evidence of a disappearing nature and where that evidence might reasonably bear on an issue at trial and be relevant to enable the accused to make full answer and defence to the charges which he or she is facing. The request must be founded on something more than mere speculation and must have an air of reality to it. [Emphasis added.]

[50] On appeal, counsel for the Crown and the appellant accepted that the Crown had the obligation described by the trial judge. Both saw the obligation as analogous to the Crown’s obligation to preserve and disclose relevant information in the possession of the Crown.

[51] There does not appear to be any authority on point. The trial judge’s analysis is certainly persuasive, especially when adopted by counsel for the Crown and the appellant. Analogy to the disclosure obligation is also attractive. I would prefer, however, to leave the question of the exact nature and extent, if any, of the Crown’s obligation in situations like that presented here to a case where it must be decided. As I am satisfied that the trial judge correctly held that there was no breach of the state’s obligation as he described it, I will proceed on the assumption that the obligation as described by the trial judge is rooted in the Charter. [2]

[52] The appellant makes two arguments. First, he argues that his rights under ss. 7 and 11(d) were breached when the police took the position that the defence could obtain a sample of the appellant’s blood only if the police were also allowed to take a sample. Counsel argues that by putting the appellant in the position of having to give up his constitutional right to privacy and his right against self-incrimination in order to exercise his right to full disclosure, the state breached his s. 7 rights. Second, and this is the argument made at trial, the appellant argues that the police deliberately delayed and obstructed the taking of any samples and did not, therefore, give “reasonable access” to counsel for the purpose of taking those samples.

[53] In the course of making the first submission, counsel describes the police as “extracting” the concession that the police could have a sample of the blood if the defence was to take a sample. Counsel also refers to Mr. Breen as “reluctantly acquiescing” in this demand. There is no evidence to support these descriptions. Indeed, the evidence is quite the contrary. Mr. Breen initially anticipated that the police would take and keep all samples that were taken from the appellant. It was only after Mr. Breen was put in the position of making the arrangements to obtain the sample that he took the position that the police should not receive any part of the sample. He did not base his claim on any notion of his client’s right to privacy or his client’s right against self-incrimination, but rather on the basis that if the police did not want to assist in arranging for the taking of the samples, they should not share in the fruits of Mr. Breen’s labour.

[54] When Staff Sergeant McDermott told Mr. Breen at about 11:00 p.m. that it was the position of the Crown that the police should receive a sample, Mr. Breen initially refused but then quickly telephoned Mr. Rosen. Mr. Rosen was clearly in charge. It was his decision to make. In Mr. Breen’s own words, Mr. Rosen said “Sure, let the police have a sample”. There is no suggestion of any reluctance on the part of Mr. Rosen to share the sample. No doubt, he saw the potential value to the defence of permitting the police to take a sample of the blood.

[55] There is no evidence that experienced counsel who were acting for the appellant on the evening of his arrest were bargaining away any constitutional rights that the appellant might have. By allowing the police to take a sample, counsel were certainly not making any concession as to what the police could do with that sample or what use the Crown could make of that sample in proceedings against the appellant. It is quite wrong to equate the police taking of a sample, with any concession with respect to the appellant’s right not to incriminate himself, or his privacy rights. I would think that any attempt to use the sample as anything other than a control sample would have met strenuous objection.

[56] The trial record offers no support for the claim that the appellant was put in the position of having to give up certain constitutional rights in order to assert his right to obtain the desired sample. The appellant had several lawyers protecting his constitutional rights during the discussions about obtaining a sample of his blood and/or urine. Nothing suggests that any of these lawyers saw the position taken by the police as somehow a demand that the appellant give up constitutional rights. That interpretation appears for the first time on appeal. This argument fails for lack of an evidentiary basis.

[57] I should not be taken as determining what entitlement, if any, the police might have to insist on acquiring a sample from an accused in custody as a condition to allowing the defence to take a sample. It is arguable that reasonable access includes concerns with respect to the integrity of any sample taken and that the taking of a “control” sample properly addresses those concerns. I leave that issue for another day.

[58] The second argument made on appeal is premised on the claim that the police placed “unreasonable obstacles” in the way of the defence obtaining the samples and that the police “deliberately and repeatedly” blocked counsel’s efforts to secure those samples. This argument runs afoul of the findings of fact made by the trial judge. He was not prepared to find that the police deliberately or intentionally obstructed counsel. He was also not prepared to accept that the security and safety concerns expressed by Staff Sergeant McDermott were part of a scheme to obstruct the taking of a sample in a timely fashion.

[59] The trial judge viewed this as a situation in which all involved were acting in good faith, but were uncertain as to what to do given the novelty of the situation. This uncertainty led to delays. The trial judge did not, however, equate these delays with bad faith or obstruction on the part of the police.

[60] The trial judge made several important factual findings, all of which are reasonable and cannot be disturbed in this court. He found:

♦ Staff Sergeant McDermott became aware of Mr. Breen’s request at about 9:30 p.m.

♦ Mr. Breen’s request presented a new situation that had not been encountered before by anyone involved.

♦ The police had legitimate security concerns arising out of any suggestion that the appellant be taken out of the police station for the purpose of obtaining the samples. The police did not have the facilities for taking a blood sample at the station.

♦ The nurse arrived with Mr. Fleming sometime between 10:30 and 11:00 p.m. Prior to her arrival, Mr. Breen was not in a position to take a blood sample had he been given access to his client.

♦ After the nurse arrived, Staff Sergeant McDermott and Mr. Breen had further discussions about the suitability of the receptacle for taking the urine sample and any dangers associated with taking the blood sample. The trial judge referred to this as a “debate”.

♦ Mr. Breen left the police station shortly after 11:27 p.m., upon being told that equipment was coming from a nearby hospital to permit the taking of the blood sample.

[61] Although the trial judge did not make an express finding as to the bona fides of the position taken by Staff Sergeant McDermott after the nurse arrived, it is implicit in his findings that Staff Sergeant McDermott was not deliberately obstructing the taking of the blood samples, but had legitimate concerns. It is also implicit in his findings that Staff Sergeant McDermott anticipated that the proper equipment would arrive in a few moments and that the blood samples would be taken at that time. While the trial judge recognized that Mr. Breen had good reason to be frustrated with the course of events that evening, it should be noted that Mr. Breen left the police station within an hour of first being in a position to take a sample of his client’s blood. Whatever the police did or did not do (short of providing someone to take the blood sample), no sample could have been taken before between 10:30 and 11:00 p.m. when the nurse arrived.

[62] I think the trial judge’s findings of fact support his conclusion that there was no denial of reasonable access to the appellant while he was in custody.

[63] Lastly, counsel submitted that the trial judge erred by requiring that the appellant demonstrate serious prejudice to the ability to make full answer and defence as a precondition to establishing a breach of the Charter. Counsel submitted that prejudice goes to remedy and not to the existence of a breach. The demonstration of prejudice to the ability to make full answer and defence may or may not be a precondition to establishing a breach of s. 7 of the Charter. The significance of prejudice to establishing a breach of s. 7 will depend on the nature of the breach alleged: R. v. F.C.B. (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547-48 (N.S.C.A.), leave to appeal to the Supreme Court of Canada refused September 28, 2000; R. v. La (1997), 1997 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.); R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 at 557 (Ont. C.A.).

[64] After reviewing relevant authorities, the trial judge said:

I am not satisfied, however, on the evidence on this application that there has been a s. 7 or s. 11(d) violation of Mr. Varga’s Charter right to make full answer and defence. In any event, even if it could be said on the evidence that such a violation has taken place, the circumstances here do not justify the imposition of the extraordinary remedy of a stay of proceedings… [Emphasis added.]

[65] The finding that the appellant had not established a violation of ss. 7 or 11(d), in my view, is a finding that the appellant had not shown that there was a failure to provide “reasonable access”. The failure to gain access before about 11:30 p.m. was the result of a number of circumstances which, while they prevented the taking of a sample, did not amount to the denial of reasonable access by the police. The failure to obtain access after 11:30 p.m. was the product of Mr. Breen’s frustration.

[66] The passage from the trial judge’s reasons quoted above in paragraph 64 makes it clear that the trial judge found no breach of the appellant’s rights. He then said “in any event” that he would not grant a stay of proceedings because of the absence of any prejudice. The trial judge’s reasons do not support the contention that he misunderstood the significance of prejudice to the appellant in the determination of whether the appellant’s rights under ss. 7 or 11(d) were infringed. [3]

B: The Admissibility of the 1986 Stabbing By Spence

[67] Spence was a lifetime criminal. The jury heard evidence of his general reputation for violence and evidence of specific acts of violence that he had told the appellant about in the course of their friendship. The defence also sought to introduce evidence of seven other specific acts of violence by Spence in the 11 years prior to the shootings. The trial judge admitted evidence of some of these incidents and excluded evidence of others. The appellant challenges the ruling as it relates to evidence of one of the incidents excluded by the trial judge.

[68] The defence wished to lead evidence from one Dinardo that in 1986, when he was in jail with Mr. Spence, he saw Spence drug and stab an inmate. Spence believed that the inmate had cheated him in a drug transaction. At trial, counsel disavowed any knowledge by the appellant of this specific incident.

[69] Counsel submitted that the evidence was admissible to support the appellant’s claim that Spence had a propensity to act in a violent manner, particularly in connection with the drug business and was, therefore, more likely to have been the aggressor during the events which led to the shootings.

[70] The trial judge referred to the relevant authorities noting that he was required to balance the potential probative value against the danger that the jury might conclude that Mr. Spence, because of his bad character, did not merit the protection of the law. The trial judge excluded the 1986 incident as being “too remote in time” to carry sufficient probative value.

[71] The admissibility of the deceased’s propensity for violence in homicide cases where self-defence is raised is now well established: R. v. Scopelliti (1981), 1981 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.). The risk inherent in the evidence is also well known. Attacks on the character of the deceased are often easy to make and risk the conclusion that it is a defence to a murder charge to show that the deceased’s demise was a civic improvement.

[72] The admissibility of this evidence was a close call and the trial judge’s balancing of the probative value and prejudicial effect of the evidence is entitled to deference. I agree with his assessment that the evidence had relatively little probative value. The incident occurred some nine years earlier and was quite different from the incident giving rise to these charges. It did, however, have some similarity to the events as described by the appellant, although I think counsel’s suggestion that the 1986 event was “strikingly similar” to the events described by the appellant is an overstatement.

[73] While the potential probative value of the evidence was not great, I cannot agree with the trial judge’s assessment of the risk of prejudice inherent in the admission of the evidence. I see virtually no risk of prejudice. Without this evidence, the jury had heard a great deal about Mr. Spence’s disposition for violence and his prior involvement in all kinds of mayhem. Indeed, Crown counsel in his closing address said:

But I am not here carrying a torch for Christopher Spence. Christopher Spence is a man who lived outside the law and deserved everything he got and visited a lot of hardships on peaceful, law-abiding people in this community. …

But, Mr. Spence, by and large, was no good. [Emphasis added.]

[74] The evidence of the 1986 incident would only have confirmed what the jury already knew about Mr. Spence. He was a dangerous criminal. I do not think there was any chance that the jury would have used that piece of evidence, as opposed to the masses of other evidence they did hear, to improperly conclude that Mr. Spence, because of his background, was not entitled to the protection of the law.

[75] The admission of evidence of the 1986 incident would not have appreciably added to the length or complexity of the trial. Mr. Dinardo, who would have testified about the 1986 incident, was going to testify in any event about other acts of misconduct by Mr. Spence. I also do not understand the Crown to suggest that had the trial judge admitted evidence of the 1986 incident, there would have been a need for a “mini trial” into the merits of that allegation against Mr. Spence.

[76] The evidence had limited potential probative value, but had virtually no potential prejudicial effect. On balance, and recognizing that defence evidence should be excluded only where its prejudicial effect substantially outweighs its probative value, I think the evidence should have been admitted.

[77] My analysis supporting the admissibility of this evidence, however, turns in favour of the Crown when the curative proviso is considered. For the very reasons that I think the trial judge should have admitted this evidence I also conclude that its admission would have had absolutely no effect on the result. The problem with the appellant’s claim of self-defence was not a shortage of evidence demonstrating that Mr. Spence was a violent man. The appellant’s difficulty was that, even on his own evidence, there was virtually no indication that he had any cause to believe that he had to shoot Mr. Spence to save himself. On the appellant’s own evidence, Mr. Spence had dropped the lethal weapon (the needle), turned away from the appellant and was standing at the kitchen sink with his back to the appellant. According to the appellant, he acted in self-defence because he thought Mr. Spence might reach for a knife near the kitchen sink. The appellant was standing some distance from Mr. Spence, was armed with a loaded handgun and had ready access to a door leading out of the apartment.

[78] I have no hesitation in concluding that evidence that Spence had been involved in yet another act of violence some nine years earlier would have had no effect on the jury’s assessment of the appellant’s self-defence claim.

C: The Reasonable Doubt Instruction

[79] This is yet another appeal in which the court must determine whether a reasonable doubt instruction delivered prior to the decision in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) is in substantial compliance with the principles set down in R. v. Lifchus, supra. There are two errors in the reasonable doubt instruction. The trial judge told the jury that reasonable doubt had “an ordinary natural meaning” and was not “some legal term having special meaning”. The trial judge also failed to instruct the jury that proof beyond a reasonable doubt required more than proof of probable guilt and required proof that was much closer to proof of certainty than to proof of probable guilt.

[80] These two defects appear in many pre-Lifchus instructions and have been the subject of many decisions. Those decisions were recently reviewed in R. v. Feeley, 2001 105 (ON CA), [2001] O.J. No. 3359 at paras. 32-33 (C.A.). I do not propose to review them again. It is sufficient to say that the presence of these two errors does not compel reversal. As with all instructions, the reasonable doubt instruction must be considered in its entirety and in the context of the particular case. Substantial compliance with the principles enunciated in R. v. Lifchus, supra, is measured by reference to the overall effect of the instruction. As Iacobucci J. put it in R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731 at 743:

The appellate assessment of substantial compliance with the Lifchus principles in cases where the trial judge did not have the benefit of that decision, and may have used, in parts of the charge, language that will likely be discontinued in the future or omitted parts recommended in Lifchus, is not a mechanical task. Rather, it is a judgment call on whether the deficiencies in the charge fall below the Lifchus standards such as to cause serious concern about the validity of the jury’s verdict and lead to the conclusion that the accused did not have a fair trial. [4]

[81] On my review of the entire charge, I am satisfied that the jury would have understood the significance of the reasonable doubt standard and that it placed a heavy burden on the Crown. The initial reasonable doubt instruction fills some 2 1/2 pages of transcript. The importance of that concept is stressed. The jury was also told that a reasonable doubt may arise from a conflict in the evidence or the absence of evidence. The trial judge went on to say:

Furthermore, though, reasonable doubt may arise because you are unable to determine the credibility or reliability of particular witnesses in relation to essential matters. [Emphasis added.]

[82] Placed in the context of the rest of this charge, I think the jury would have understood this to be an indication that a reasonable doubt existed if the jury was uncertain as to the reliability of evidence going to an essential element of the offence.

[83] Some further assistance as to the meaning of reasonable doubt was provided in the course of instructing the jury on expert witnesses. The trial judge told the jury that in so far as expert evidence favoured the defence, the jury could rely on it if they were satisfied that the evidence on which it was based was true, or if they had a reasonable doubt as to whether it was true or false. He went on to say:

It is only when you find that the evidentiary basis is false that you must not consider the opinion of an expert witness which favours the accused on an essential matter. [5]

[84] From this instruction, I think the jury would understand that the concept of reasonable doubt embraced anything short of an express finding that evidence was false. In other words, uncertainty as to the truth of evidence which assisted the defence on an essential feature equalled the existence of a reasonable doubt.

[85] Lastly, the trial judge instructed the jury in accordance with R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). From that instruction, the jury would clearly understand that the case was not to be decided by choosing between competing versions of the relevant events, but that a reasonable doubt could exist even if the defence evidence was rejected as false. I think the approach mandated in R. v. W.(D.), supra, discourages decisions based on probabilities.

[86] The verdicts also provide some insight into the jury’s understanding of the heavy burden placed on the Crown. The case against the appellant was very strong. On the totality of the evidence, and in particular the physical evidence, the appellant’s self-defence claim was very weak. His claim that he was so impaired that he could not have intended the consequences of what he did was belied by his detailed description of the events leading up to and during the shootings. Despite the strength of the Crown’s case, the jury acquitted the appellant on two of the three main charges. These acquittals suggest to me that this jury held the Crown to a very high standard.

[87] The appellant submits that the trial judge misdirected the jury as to the burden of proof as it applied to self-defence. He argues that the jury was told that the appellant had the initial burden of satisfying the jury as to the facts relied on to support the self-defence claim. It was only after those initial facts were established to the jury’s “satisfaction” that the burden moved to the Crown.

[88] I have reviewed the extracts from the trial judge’s instruction relied on by the appellant in his factum. His interpretation of those extracts is a strained, if not tortured one. The trial judge repeatedly told the jury that the Crown had the burden of proof throughout. He told the jury expressly on no less than seven occasions that the Crown had to prove beyond a reasonable doubt that the defence of self-defence was unavailable. Reference to two of the extracts will suffice:

In as much as the defence of self-defence is raised for your consideration in this case, even if it has been shown to you that Mr. Varga would otherwise be guilty, before he can be convicted you must also be satisfied with the exclusion of any reasonable doubt that he was not acting in self-defence in according to the law.

You must be satisfied, once the defence of self-defence under section 34(2) of the Criminal Code has been raised, as it has here, the Crown must prove beyond a reasonable doubt that the defence is unavailable to Mr. Varga because the evidence supporting the defence is either untrue or insufficient with respect to at least one essential element of the defence. … Subsection 34(2) is not available if the Crown satisfies you beyond a reasonable doubt in this case with respect to any one or more of the following….

[89] There is no merit to this ground of appeal.

E: The Allegation of Inconsistent Verdicts

[90] The appellant submits that his conviction on the charge of attempting to murder Ms. Suzana is inconsistent with his acquittals on the charge of murdering Mr. Spence and attempting to murder Mr. Hooper.

[91] In R. v. McShannock (1980), 1980 2973 (ON CA), 55 C.C.C. (2d) 53 at 55-56 (Ont. C.A.), Martin J.A. said:

Where an indictment contains more than one count and the jury convicts on one count and acquits on another count an inconsistency in the verdicts does not of necessity require the conviction to be set aside. The onus is on the appellant to show that the verdicts are so at odds that no reasonable jury who understood the evidence could have properly arrived at that verdict. [Emphasis added.]

[92] I agree with the Crown’s submission that there is a readily available reasonable explanation for the jury’s verdicts. Whatever doubt the jury may have had concerning the appellant’s state of mind when he shot Mr. Hooper and Mr. Spence, it was open to them to conclude that when he turned his attention to Ms. Suzana, who as far as he knew had just witnessed him shoot and kill two persons, the appellant made a decision to eliminate Ms. Suzana. Unlike Mr. Spence and Mr. Hooper, the appellant had no reason to be angry with or fear Ms. Suzana. She was dangerous to him only as a witness to what he had just done. I think a reasonable jury could have concluded that the appellant made a quick decision to eliminate the potential witness and fired into Ms. Suzana’s head as she sat or knelt on the floor in front of him. That is attempted murder.

V

The Sentence Appeal

[93] Counsel for the appellant submits that the sentence of life imprisonment imposed on the attempted murder charge is beyond the appropriate range. He submits that a sentence of life imprisonment on a charge of attempted murder is reserved for cases of “stark horror”, or cases in which the offender can be characterized as “the worst offender”. While acknowledging his criminal past and the seriousness of this offence, counsel submits that it is not a case of “stark horror” and that the appellant is not in the “worst offender” category.

[94] I do not think that the fitness of the sentence imposed depends on whether it fits into one of the two categories described by the appellant. The fitness of the sentence imposed in this case cannot be considered in isolation from the other offences that occurred at the same time. The appellant attempted to murder Ms. Suzana immediately after he shot two other people in her presence. As the trial judge put it, “she was a helpless bystander who happened to be in the way”. In my view, the fact that the attempted murder arose out of the commission of other serious offences is a significantly aggravating factor.

[95] It is also significant that the slight tilt of Ms. Suzana’s head was literally the difference between a murder and an attempted murder. The appellant fired at Ms. Suzana’s head from close range fully intending to kill her. He stands convicted of attempted murder rather than murder by pure luck. His culpability is hardly distinguishable from that of a murderer.

[96] The trial judge described the appellant’s lifestyle as that of a “seasoned, deliberate and professional criminal”. I agree. The appellant had been released from the penitentiary only about 3 months before the shootings. He immediately resumed his criminal activities. His habitual possession of a loaded handgun, his prior convictions for robbery and his conduct on this occasion are testimony to his willingness to resort to violence to further his criminal endeavours. The trial judge saw little hope for rehabilitation. Again, I agree.

[97] The trial judge’s reasons for sentence are a model of thoroughness and reflect a considered assessment of the applicable principles of sentencing. Those reasons reveal no error in principle and the sentence imposed is not manifestly beyond the appropriate range. I would not vary the sentence.

RELEASED: “Nov 7 2001”

“DD”

“Doherty J.A.”

“I agree S.T. Goudge J.A.”

“I agree Janet Simmons J.A.”

[1] Staff Sergeant McDermott recalled that the nurse arrived while he was speaking with Mr. Breen and Mr. Rosen at about 11:00 p.m. Mr. Breen recalled that the nurse arrived at about 10:30 p.m. before Staff Sergeant McDermott returned from speaking with Mr. Culver.

[2] Although both counsel accepted the “reasonable access” standard described by the trial judge, counsel for the appellant at one point in his factum suggested that counsel had a right to “unconditional access” to an accused in custody. While I need not come to any firm conclusion as to the access rights of counsel, I have no doubt that they cannot be “unconditional”. If an accused is lawfully in the custody of the police, the police have an obligation to ensure the security and safety of the prisoner and anyone who may come in contact with the prisoner. Any right counsel has to access to an accused in custody must co-exist with those obligations and be tempered by them.

[3] This application was brought at the outset of the trial. This court has repeatedly indicated that unless the appropriateness of a stay is manifest at the outset of the proceedings, a trial judge should reserve on motions such as this until after the evidence has been heard. The trial judge is in a much better position to assess prejudice at the end of the evidence. It would have been better for the trial judge to follow that course. I see no prejudice, however, to the appellant by the timing of the ruling and none was suggested in argument.

[4] The approach in R. v. Russell, supra, was recently affirmed in R. v. Rhee 2001 SCC 71.

[5] The instruction was probably overly favourable to the accused: R. v. Collins, 2001 24124 (ON CA), [2001] O.J. No. 3894 (C.A.). I refer to it only to demonstrate that the trial judge equated reasonable doubt with uncertainty.