DATE: 20021218

DOCKET: C33547

COURT OF APPEAL FOR ONTARIO

LABROSSE, MOLDAVER and FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Karen Shai,

for the respondent

Respondent

• and -

DENNIS McLEAN

Paul Calarco,

for the appellant

Appellant

Heard: December 3, 2002

On appeal from the convictions imposed by Justice Patricia R. German of the Superior Court of Justice, sitting with a jury, dated April 14, 1999, and against the sentence imposed dated May 6, 1999.

BY THE COURT:

[1] The appellant was convicted by a court composed of German J. and a jury of attempted murder, aggravated assault, using a firearm in the commission of an indictable offence, and possession of a restricted weapon. On the conviction for attempted murder, he was sentenced to 16½ years imprisonment without parole eligibility for one half of that time. The sentence was in addition to the equivalent of 42 months pre-trial custody. He was also sentenced to one year concurrent for possessing a restricted weapon. The remaining counts were stayed.

[2] At trial, it was alleged that the appellant shot the complainant with a large calibre handgun when she refused to go into his bedroom, fearing that she would be raped. The shot hit her in the throat and the bullet entered into the spinal region, shattering at least one of her vertebrae. The complainant sustained life threatening injuries and hovered on the brink of death for months. She was in a medically induced coma for three months. Her left leg had to be amputated and she suffered a spinal injury that has left her paralysed from the sternum down. She will never walk again.

[3] The appellant does not dispute that there was sufficient evidence to place him at the scene of the offence. During the cross-examination of the complainant, he suggested that she had been playing with the gun and an accidental discharge of the firearm occurred when he tried to take it from her. In the end, it was his position to the jury that the complainant’s evidence was incredible and unreliable and that the jury could therefore not be certain how or under what circumstances the gun discharged. Accordingly, he argued that he should be acquitted or, at worst, convicted of a lesser offence than attempted murder. He did not testify.

Conviction Appeal

[4] The appellant raises five grounds of appeal against conviction.

1. The trial erred in her instructions regarding the challenge for cause process.

[5] The appellant submits that the trial judge failed to adequately instruct the triers of fact on the importance of their task and the procedure they were to follow in carrying it out.

[6] We would not give effect to this ground of appeal. In our view, the instructions given by the trial judge were adequate. The trial judge explained to the jury panel the distinction between peremptory challenges and challenge for cause. The triers were informed that their task was to determine whether a prospective juror was impartial, that is, someone who would “approach and decide the case on the evidence and on the instructions of the trial judge.” The trial judge then told the triers that in order to find a prospective juror impartial, they must be “satisfied the proposed juror will approach their duties with an open mind and decide the case on the basis of the evidence and on the instruction of the trial judge” and that if the triers were “not so satisfied”, they were to “find the proposed juror not impartial.” Finally, the triers were told that they must be unanimous.

[7] In matters involving the challenge for cause process, trial judges have been given a wide discretion. It would be wrong to insist upon a highly rigid, technical approach. In this case, viewed in their entirety, the instructions provided the jury panel with an adequate understanding of the nature of their task and the procedure that they were to follow in order to select an impartial jury.

[8] While it would have been preferable had the trial judge been somewhat more explicit about the standard of proof and also advised the triers of their right to disagree and to leave the courtroom to deliberate if desired, in our view, these omissions were not fatal. Defence counsel [not Mr. Calarco] did not object to the instructions and there is nothing in the record that would cause us to believe that the triers either misunderstood the nature of their task or failed to properly carry it out.

[9] Thus, the instructions essentially complied with the standard articulated in previous decisions of this court and warrant no interference.

2. The trial judge erred in ruling that evidence of prior discreditable conduct was admissible.

[10] At the commencement of the trial, the Crown informed defence counsel that if the appellant advanced a defence of accident, the Crown would seek to rebut that defence by applying to adduce evidence that the appellant had shot someone six years earlier. At the conclusion of the cross-examination of the complainant, defence counsel suggested to her that, on the night in question, she had engaged in consensual sexual relations with the appellant and that when she started to play with the gun, the appellant had tried to pry it from her and it accidentally discharged. She was also repeatedly confronted with the suggestion that the appellant would not be foolish enough to deliberately shoot her while his roommate was downstairs.

[11] Immediately following the cross-examination of the complainant, the Crown sought a ruling on the admissibility of similar act evidence to rebut the anticipated defence of accident raised during the cross-examination of the complainant. The Crown applied to adduce evidence of an incident that occurred in 1991 for which the appellant pled guilty to the offence of aggravated assault. In that incident, the appellant’s friend got into a fight with one Butterfield at a party at which the appellant was not present. After the party was over, the appellant arrived with three friends and an argument developed about what had happened to his friend earlier that evening. The appellant was trying to get Butterfield to come outside. The tenants of the house, including the complainant, tried to convince the appellant and his friends to leave. The appellant removed a handgun from inside his coat and shot the complainant, striking him in the throat. The victim required emergency surgery but made a full recovery.

[12] The primary purpose for which the Crown was seeking to adduce this evidence was to rebut the defence of accident. The evidence was being tendered to show that in the past, the appellant had intentionally shot someone who had refused to go along with what he wanted, calling into question the plausibility of the accidental discharge theory. The Crown also argued that the evidence was relevant to an assessment of the assertion that the appellant would not deliberately shoot the complainant with his roommate nearby in light of the fact that, in 1991, the appellant had shot someone with a number of persons in the immediate vicinity.

[13] The trial judge ruled the evidence admissible to rebut the defence of accident raised by the appellant during the cross-examination of the complainant. In so ruling, she stated that she saw a pattern in that evidence. She found that the probative value of this evidence far outweighed its prejudicial effect.

[14] Before the Crown led the similar act evidence in accordance with the ruling, defence counsel sought clarification of the ruling. He inquired as to whether the similar act evidence would be admitted in the Crown’s case if no defence evidence were called. The trial judge responded that, in the absence of any evidence of accident, the jury would not hear the evidence. At his request, defence counsel was given ample time to confer with the appellant. After doing so, counsel indicated that the appellant instructed him that he did not wish to testify.

[15] No defence evidence was called. The jury never heard the impugned evidence.

[16] The trial judge erred in ruling that the evidence was admissible as similar act evidence showing a pattern of behaviour by the appellant that was relevant to rebut the defence of accident. The only similarity between the two incidents was that they both involved the appellant shooting someone. The ruling by the trial judge suggests that the evidence could be led for the prohibited purpose of relying upon general propensity to show that the appellant was the sort of person who shoots deliberately when he does not get what he wants. Manifestly, the evidence was not admissible for that purpose.

[17] However, in the unusual circumstances of this case where, at the request of the defence, the evidence was not admitted and the appellant did not call a defence, we are entitled to consider on appeal whether the evidence would have been admissible for any other purpose. Because the evidence was not led and no instruction was given to the jury, the appellant suffered no prejudice from the evidence. The prejudice he alleges on this appeal is that he forfeited his right to testify (in fact, he in effect made a bargain not to testify) as a result of the ruling. In any event, if the evidence were admissible, albeit for a purpose different than the one envisaged by the trial judge, then the appellant would have had to face the same decision whether or not to testify.

[18] The second purpose for which the Crown sought to lead the evidence was to rebut the suggestion, put to the complainant in cross-examination three times during the Crown’s case, that the appellant would not have shot her deliberately when his roommate was downstairs. For that purpose, the facts do not need to be similar. (See R v. B. (L.), R. v. G. (M.A) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.) at pp. 488-489 and at p. 497). The evidence was of discreditable conduct by the appellant and therefore prima facie prejudicial, and was only admissible if the court concluded that its probative value outweighed its potential prejudicial effect.

[19] In this case, we are satisfied that the evidence was probative on the aspect of the defence of accident raised on the cross-examination, i.e., that the appellant would not have shot the complainant with others around. Although this was not the main thrust of the accident scenario, it certainly enhanced the logic of the suggestion that it was more likely an accident than a deliberate shooting.

[20] On the issue of balancing the probative value against the prejudicial effect of the evidence, clearly the evidence would have had a prejudicial effect. However, there are several facts which could limit the potential prejudice in the circumstances of this case. First, the evidence could have been led in a restrictive form, such as by way of a limited statement of the previous event, in order to minimize its prejudicial effect. Second, we note that, had the appellant testified, the fact of his conviction for aggravated assault would likely have been admitted as part of his criminal record so that the jury would have been aware of it and would have been able to take it into account in assessing his credibility on his version of events. Finally, and most importantly, the issue to which the evidence speaks was raised by the defence in circumstances where, to the knowledge of the defence, the spectre of the admissibility of the prior incident was looming throughout the trial. That being so, the appellant ought to have been prepared to deal with the evidence when he testified. The fact that the defence raised a suggestion with the jury that it knew would be suspect in light of the evidence of the prior incident must be considered in weighing its potential prejudicial effect.

[21] In the particular circumstances of the case, we are satisfied that the probative value of the similar act evidence was sufficient to outweigh its prejudicial effect and the evidence was therefore properly admissible for this alternative purpose. As a result, the appellant is left with his decision not to testify and has suffered no prejudice.

3. The trial judge erred in her instructions to the jury regarding the complainant’s denials of the suggestions of accident.

[22] During his cross-examination of the complainant, defence counsel repeatedly suggested to her that the shooting had been an accident. She vehemently denied the suggestions. The appellant submits, correctly in our view, that the trial judge erred in instructing the jury to accept the complainant’s denial of the suggestions of accident “as correct”. (See R. v. Shirley (2002), 155 O.A.C. 210 at 213 (Ont. C.A.)). However, the trial judge properly instructed the jury that suggestions put to the witness by counsel do not constitute evidence. She also told the jury that even if they did not accept the complainant’s evidence as credible or reliable, there was no evidence to support the suggestions of counsel. Clearly, the impugned instruction was limited only to the complainant’s denial regarding the specific suggestions of accident made by defence counsel.

[23] When the charge is considered as a whole, the jury received adequate instruction as to the assessment of credibility (including a Vetrovec instruction) and the issue of intent. The trial judge also properly instructed the jury that their assessment of the credibility and reliability of the complainant was crucial to the determination of whether the appellant had the requisite intent for attempted murder.

[24] The impugned instruction could not have left the jury with the impression that they were being instructed to find that everything the complainant said was true. There was no substantial wrong and we would not give effect to this ground of appeal.

4. Instructions on Intent

[25] The appellant submits that the trial judge misdirected the jury on the application of the common sense inference that a sane and sober person intends the natural and probable consequences of his or her voluntary actions. In particular, he argues that the trial judge erred in failing to make it clear to the jury that in assessing the appellant’s intent at the time of the shooting, the common sense inference could only be applied if the jury was otherwise satisfied that the appellant deliberately fired the gun.

[26] We would not give effect to this submission. In our view, the trial judge did not misdirect the jury on the common sense inference or the use that could be made of it.

[27] That is not to say that the charge on intent was entirely clear. Indeed, in our view, it was at times confusing in that it failed to delineate, in clear terms, the difference between accident (the unintentional physical act of pulling a trigger) and intent (the mental state required for attempted murder).

[28] Nonetheless, when the charge is read as a whole, we are of the opinion that the jury would have understood that they had to be satisfied that the appellant deliberately (as opposed to accidentally) fired the gun, before assessing his intent at the time of the shooting.

5. The charge on reasonable doubt

[29] The instructions on reasonable doubt were essentially in compliance with R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). There is no reasonable likelihood that the jury would have misapprehended the correct standard of proof. We see no merit in this ground of appeal.

Sentence Appeal

[30] The appellant was sentenced to 20 years imprisonment, comprised of 16½ years in addition to 21 months of pre-trial custody credited as 42 months.

[31] The trial judge carefully considered the principles of sentencing. She found that the appellant intentionally shot the complainant when she refused to go into his bedroom to have sexual relations with him. She also found that he left the complainant bleeding to death and left the room to arrange his escape from the scene.

[32] The appellant has shown himself to be a highly dangerous offender who poses a serious and ongoing threat to public safety. The moral culpability of the appellant and the serious consequences of this conduct for the complainant warranted the severe sentence imposed by the trial judge.

[33] The trial judge ordered that the appellant not be eligible to apply for parole until having served one half of his sentence. The trial judge did not provide any reason in support of the ineligibility order. It is conceded by the Crown that the appellant’s sentence is at the high end of the range for this type of offence. We do not think that there was a proper basis for the ineligibility order. It is hereby set aside.

[34] In all other respects, the appeal is dismissed.

Released: Dec. 18, 2002 Signed: “J.M. Labrosse J.A.” “K.N.F.” “M.J. Moldaver J.A.” “K. Feldman J.A.”