DATE: 20021115

DOCKET: C34753

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. GARRY JOSEPH HART (Appellant)

BEFORE: DOHERTY, ROSENBERG and CRONK JJ.A.

COUNSEL: Damien R. Frost and Kerry L. Benzakein for the appellant

Erika Chozik for the respondent

HEARD: November 12, 2002

ORALLY

RELEASED: November 12, 2002

On appeal from the conviction entered on November 13, 1998 and the finding of dangerous offender entered on November 4, 1999 by Justice A.C. Whealy.

E N D O R S E M E N T

(i) The Conviction Appeal

[2] There are two grounds of appeal advanced on the conviction appeal. First, it is argued that the trial judge did not properly instruct the jury with respect to the evidence concerning the appellant’s assault on certain police officers at the time of his arrest. It may have been better had the trial judge specifically told the jury that they should not infer from the appellant’s admitted assaults on the police officers at the time of his arrest, about one hour after the alleged assault on the complainant, that he was the type of person who committed assaults and, therefore, had assaulted the complainant. We are satisfied, however, that that non-direction did not amount to misdirection in the circumstances of this case.

[3] The trial judge specifically instructed the jury they could use this evidence in relation to only two of the charges. The jury acquitted on those two charges. The evidence that the appellant had assaulted the complainant was quite simply overwhelming. We see virtually no likelihood that the jury would have resorted to indirect propensity reasoning to conclude that the appellant had committed the assaults. Finally, had a more detailed limiting instruction been given by the trial judge, it would have been incumbent on the trial judge to indicate to the jury exactly how the evidence of the appellant’s conduct at the time of his arrest could relate to his state of mind at the time of the attack on the complainant shortly before his arrest. This kind of more focussed instruction would not have assisted the appellant.

[4] The second ground of appeal relates to the trial judge’s instruction with respect to the position of the defence. We cannot agree that he did not summarize the position of the defence and the evidence relevant to that position. He did so. To the extent that he “disparaged” the position of the defence, his comments related to a defence advanced by counsel at trial which was not available in law. In our view, there is no merit to this ground of appeal.

[5] The conviction appeal must be dismissed.

(ii) The Sentence Appeal

[6] The appellant’s primary submission is that the trial judge attached undue weight to the evidence of Dr. Klassen because that opinion depended upon the opinions of other experts, especially Dr. Wright, who were not called as witnesses at the sentence proceeding. The appellant concedes that Dr. Klassen was entitled to rely on this material and that the results of the tests administered by Dr. Wright and others were admissible, although the authors were not called. There was no serious challenge at trial to Dr. Klassen’s ability to use, interpret and analyze the tests results and the defence did not suggest that Dr. Wright should be called as a witness. In these circumstances, it cannot be said that the trial judge unreasonably relied upon this evidence.

[7] While there were some discrepancies between the facts relied upon by Dr. Klassen and the actual judicial findings with respect to the earlier offences, such discrepancies were minor and did not in any sense undermine Dr. Klassen’s opinion. The finding that the appellant was a dangerous offender is fully supported by the evidence, especially given the appellant’s serious criminal antecedents. Accordingly, the appeal from the finding of dangerous offender and the sentence appeal are dismissed.

“Doherty J.A.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”