Her Majesty the Queen v. Jackson [Indexed as: R. v. Jackson]

58 O.R. (3d) 593

[2002] O.J. No. 1097

Docket Nos. C32921 and C28624

Court of Appeal for Ontario

Morden, Sharpe and Cronk JJ.A.

March 26, 2002

Criminal law -- Discharging firearm with intent -- Elements of offence -- Fact of arrest or attempted arrest not part of actus reus of offence of discharging firearm with intent to resist arrest -- Actus reus is discharging firearm at person -- Element of arrest linked to mens rea requirement of offence -- Criminal Code, R.S.C. 1985, c. C-46, s. 244(c).

Criminal law -- Sentence -- Principles of sentencing -- Rehabilitation -- Twenty-year-old accused with prior conviction for assault convicted of discharging firearm with intent to endanger life of police officer, possession of unregistered restricted weapon, carrying weapon for purpose dangerous to public peace and discharging firearm with intent to escape arrest -- Accused believed that police officer approached him on street for racist reasons -- Accused spent 14 months in pre- trial custody -- Trial judge imposed sentence of seven years' imprisonment for discharging firearm with intent to endanger life, five years concurrent for discharging firearm with intent to prevent arrest and two years concurrent for other offences -- Sentence did not give adequate expression to principle of rehabilitation -- Sentence for discharging firearm with intent to endanger life reduced to four years and eight months' imprisonment and other sentences affirmed.

Criminal law -- Sentence -- Procedure -- Accused convicted of discharging firearm with intent to endanger life of police officer and related offences -- Sentencing judge erred in permitting police officer to make statement expressing concerns about increasing risk to police officers from use of firearms and giving his opinion on accused's degree of culpability -- Statement exceeded limits of what is permitted in victim impact statement -- No notice or warning given to defence of what officer intended to say -- Error compounded when sentencing judge referred to certain impermissible aspects of statement in his reasons for sentence -- Criminal Code, R.S.C. 1985, c. C- 46, s. 722.

Criminal law -- Trial -- Charge to jury -- Exhortation -- Trial judge erred in instructing jury that consequence of failure to reach verdict would be that another jury would have to try case -- Statement did not constitute improper exhortation and did not give rise to reasonable possibility that jury was coerced.

The 20-year-old accused was riding double on a bicycle with a friend on a sidewalk when he was approached by a uniformed police officer, who attempted to stop him pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8. The accused was armed with a loaded .357 Magnum revolver, a restricted weapon which was not registered to him. He jogged away from the officer and then turned and fired two shots in the officer's direction. The officer took cover and was not hurt. The accused was convicted of discharging a firearm with intent to endanger the life of a police officer, possession of an unregistered restricted firearm, carrying a weapon for a purpose dangerous to the public peace and discharging a firearm with intent to resist arrest. The jury was unable to reach a unanimous verdict on a charge of attempted murder and the Crown elected not to pursue that charge further. The accused had testified in his own defence at trial, essentially admitting guilt on all counts, with the exception of attempted mu rder and the two counts of discharging a firearm with intent. He testified that he believed that the officer tried to stop him only because he was black, and that, while he did discharge his firearm in the officer's direction, he fired it over the officer's head and had no intent to kill, injure or endanger life.

The accused had a prior conviction for assault and spent 14 months in pre-trial custody. The trial judge sentenced him to seven years' imprisonment for discharging a firearm with intent to endanger life, five years concurrent for discharging a firearm with intent to prevent arrest and two years concurrent for each of the two other offences. The accused appealed his convictions for discharging a firearm with intent to endanger life and discharging a firearm with intent to prevent arrest. He also appealed his sentence.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed.

The fact of an arrest or an attempt to arrest is not an essential element of the offence of discharging a firearm with intent to avoid arrest. The element of arrest is linked to the mens rea requirement under s. 244(c) of the Criminal Code. The actus reus of the offence is the discharge of a firearm at a person.

The trial judge erred in telling the jury, in response to a question, that if they would not arrive at a verdict, another jury would have to try the case. The Crown may choose not to proceed with a new trial, as it did in the present case. However, the answer did not amount to an improper exhortation or otherwise constitute reversible error. The trial judge gave a proper exhortation instruction immediately after the erroneous passage. The brief reference to a further trial did not give rise to a reasonable possibility that the jury was coerced.

After Crown counsel and defence counsel had made their submissions at the sentencing hearing, the Crown stated that the police officer/victim would like to address the court. Defence counsel objected to the proposed statement. The officer stated that he was concerned about the increasing risk to police officers from the use of handguns and firearms and complained that the hands of the police were increasingly tied by "regulations and red tape". He indicated that, in his opinion, the accused had deliberately lured him to follow him for the sole purpose of shooting him. Defence counsel again objected to the officer's remarks. No victim impact statement was filed and the defence was not given notice of the officer's intention to make a statement. The trial judge erred in permitting the officer to make the statement during the sentencing process. The officer's statement was not made in accordance with the sentencing procedure set out in the Criminal Code nor did it comply with the provisions for filing a victim impact statement. Neither Crown nor defence counsel knew what the officer intended to say before he testified and defence counsel had no notice that the officer intended to make a statement. The officer's statement exceeded what is permitted within a victim impact statement. The reference within the Code permitting the filing of a victim impact statement or allowing the court to consider "any other evidence" concerning the victim of the crime does not create the option of letting the victim file a victim impact statement or addressing the court immediately before sentence is imposed. The trial judge's error in allowing the statement to be made was compounded when he made explicit reference to certain impermissible portions of it in his reasons for sentence. In view of these errors, it was open to the court to review the sentence imposed by the trial judge.

The 20-year-old accused, who had a prior record for assault, was a student in Grade 12 when he was sentenced. He submitted letters from teachers and one of his teachers testified. The accused was described as intelligent and analytical but having difficulties with the complexities of a multicultural society. While the offences in this case were very serious, the sentence imposed by the trial judge did not give adequate expression to the principle of rehabilitation, given his youth and evidence of some positive prospects for his rehabilitation. The sentence was unduly severe and effectively communicated to the accused that he had no hope for rehabilitation. The sentence for discharging a firearm with intent to endanger life should be varied to four years and eight months' imprisonment, and the other concurrent sentences should be affirmed.

APPEALS from convictions for discharging firearm with intent to endanger life and discharging firearm with intent to avoid arrest and from sentence.

Cases referred to R. v. Allison and Dinel (1983), 1983 3567 (ON CA), 5 C.C.C. (3d) 30, 33 C.R. (3d) 333 (Ont. C.A.); R. v. Boomhower (1974), 1974 2650 (ON CA), 20 C.C.C. (2d) 89, 27 C.R.N.S. 188 (Ont. C.A.); R. v. G. (R.M.), 1996 176 (SCC), [1996] 3 S.C.R. 362, 139 D.L.R. (4th) 193, 202 N.R. 1, 110 C.C.C. (3d) 26, 1 C.R. (5th) 199; R. v. Henderson (2001), 2001 4540 (ON CA), 145 O.A.C. 150 (C.A.); R. v. Leventhal (1988), 29 O.A.C. 337 (C.A.); R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, 68 C.C.C. (3d) 517, 9 C.R. (4th) 347 (C.A.); R. v. Pan, 2001 SCC 42, 200 D.L.R. (4th) 577, 270 N.R. 317, 85 C.R.R. (2d) 1, 155 C.C.C. (3d) 97, 49 C.R. (5th) 203; R. v. Poisson (1983), 1983 3537 (ON CA), 8 C.C.C. (3d) 381 (Ont. C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302 Statutes referred to Criminal Code, R.S.C. 1970, c. C-34, s. 228 Criminal Code, R.S.C. 1985, c. C-46, ss. 244 [as am.], 722, 723(2), (3) [as am. S.C. 1995, c. 22, s. 6], 726 [as am.] Highway Traffic Act, R.S.O. 1990, c. H.8

Appellant in person, assisted by Gregory L. Lafontaine (duty counsel) (conviction appeal). Sam Scratch, for appellant (sentence appeal). Greg Tweney, for respondent (conviction appeal). Shelley Hallett, for respondent (sentence appeal).

The judgment of the court was delivered by

[1] SHARPE J.A.: -- A uniformed police officer attempted to stop the appellant for riding double on a bicycle. The appellant jogged away, then turned and fired a .357 calibre handgun in the direction of the officer. A second shot was also fired. The police officer took cover behind a car. There were bystanders in the vicinity but no one was injured.

[2] At his trial before a judge and jury, the appellant was convicted of discharging a firearm with intent to endanger the life of the police officer, possession of an unregistered restricted firearm, carrying a weapon for a purpose dangerous to the public peace, and discharging a firearm with intent to prevent arrest. He was also found guilty of pointing a firearm at the police officer without lawful excuse, but that charge was stayed pursuant to the Kienapple principle. The jury was unable to reach a unanimous verdict on a charge of attempted murder and the Crown elected not to pursue that charge any further.

[3] The appellant was sentenced to seven years' imprisonment for discharging a firearm with intent to endanger life, two years concurrent for possession of an unregistered restricted firearm, two years concurrent for carrying a weapon for a purpose dangerous to the public peace, and five years concurrent for discharging a firearm with intent to prevent arrest. He appeals his convictions for discharging a firearm with intent to endanger life and discharging a firearm with intent to prevent arrest. He also appeals the sentence imposed.

[4] The appellant's sentence appeal proceeded as a solicitor appeal. The appellant's appeal against conviction proceeded as an inmate appeal, but the appellant and the court derived significant assistance from Mr. Lafontaine, who argued the appellant's case in a most able and admirable manner in his capacity as duty counsel. The two appeals were heard separately, but by the same panel during the same week.

Facts

[5] At approximately noon on July 18, 1996, the appellant was riding double on a bicycle with a friend on a sidewalk in front of a strip mall in the area of Jane and Finch in Toronto. The appellant was observed by a uniformed police officer, P.C. John MacDonald, who was patrolling the area on foot. When he saw the bicycle being ridden double on the sidewalk, P.C. MacDonald attempted to stop the appellant pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8.

[6] The appellant, at the time 20 years old, was armed with a loaded .357 Magnum revolver, a restricted weapon for which he was not registered as required by law. The appellant did not stop at P.C. MacDonald's request but jogged away. P.C. MacDonald pursued the appellant. As the appellant was jogging away, he turned and fired a shot from the revolver in the direction of P.C. MacDonald. The appellant then stopped running and fired a second shot in P.C. MacDonald's direction. P.C. MacDonald then took cover behind a parked car. There were five other people in the area when the appellant fired the handgun, including a female witness between the appellant and the police officer and a father with two children, who was 15 feet away from P.C. MacDonald.

[7] The appellant fled to a nearby residential apartment building and hid the revolver behind a fire hose. The revolver was later recovered and found to contain four other bullets.

[8] The appellant testified in his own defence at trial. He essentially admitted guilt on all counts, with the exception of attempted murder and the two counts of discharging a firearm with intent. The appellant testified that he believed the only reason P.C. MacDonald tried to stop him was because he was black. He explained his belief regarding racist attitudes on the part of the police. He further testified that while he did discharge the firearm in the direction of P.C. MacDonald, he fired the weapon over P.C. MacDonald's head. According to the appellant, he had no intent to kill, injure or endanger life. His intention was merely to slow down P.C. MacDonald in order to prevent an arrest.

Conviction Appeal

[9] The appellant submits that the trial judge erred in his instructions to the jury on the following grounds:

1. The trial judge erred with respect to an essential element of the offence of discharging a firearm with intent to prevent arrest.

2. The trial judge erred in instructing the jury as to the appellant's defence to the offences of discharging a firearm with intent.

3. The trial judge failed to give a proper instruction on reasonable doubt.

4. The trial judge committed a "Miller error" in that he failed to instruct the jury to consider all of the evidence in determining whether or not the Crown had proven its case beyond a reasonable doubt.

5. The trial judge erred in failing to give the jury a limiting instruction regarding the multiple counts in the indictment.

6. The trial judge erred in answering the jury's question with respect to the consequences of failing to agree on a verdict.

[10] For the reasons that follow, I would dismiss the conviction appeal.

Issue 1: Did the trial judge err with respect to an essential element of the offence of discharging a firearm with intent to prevent arrest?

[11] Section 244 of the Criminal Code, R.S.C. 1985, c. C-46 provides as follows:

244. Every person who, with intent

(a) to wound, maim or disfigure any person,

(b) to endanger the life of any person, or

(c) to prevent the arrest or detention of any person,

discharges a firearm at any person, whether or not that person is the person mentioned in paragraph (a), (b) or (c), is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of four years.

(Emphasis added)

[12] In his instructions to the jury, the trial judge stated that the element of arrest in s. 244(c) of the Code relates to the mens rea required for the offence and not to the actus reus.

[13] The appellant submits that the trial judge erred in this respect. While the appellant testified that he discharged the firearm to avoid arrest, P.C. MacDonald was clear in his evidence that he was not in the process of arresting the appellant, and that he had no intention of arresting the appellant. The appellant submits that the fact of an arrest or an attempt to arrest is an essential element of the actus reus of this offence. He submits that, since there was no arrest in progress or intended, he cannot be convicted of this offence despite his admitted intention.

[14] In my view, this submission must be rejected. The argument that an arrest is an element of the actus reus is not borne out by the language of s. 244. Sections 244(a) and (b) set out the mens rea required for conviction under those sections: the intent to wound, maim or disfigure any person in the case of s. 244(a), and the intent to endanger the life of any person in the case of s. 244(b). Similarly, s. 244(c) sets out the mens rea required for conviction under that section: the intent to prevent the arrest or detention of any person. The element of arrest is linked to the mens rea requirement under s. 244(c), and not to the actus reus requirement, which is the discharge of a firearm at a person.

[15] Although this court's decision in R. v. Allison and Dinel (1983), 1983 3567 (ON CA), 5 C.C.C. (3d) 30, 33 C.R. (3d) 333 (Ont. C.A.) did not deal with the precise point at issue here, Martin J.A.'s analysis as to the essential elements of the predecessor of s. 244 is helpful. Section 228 [of the Criminal Code, R.S.C. 1970, c. C-34] provided as follows:

228. Every one who, with intent

(a) to wound, maim or disfigure any person,

(b) to endanger the life of any person, or

(c) to prevent the arrest or detention of any person,

discharges a firearm, air gun or air pistol at or causes bodily harm in any way to any person, whether or not that person is the one mentioned in paragraph (a), (b) or (c), is guilty of an indictable offence and is liable to imprisonment for fourteen years.

At p. 39 C.C.C., Martin J.A. stated:

As will be observed the offences created by s. 228 fall into two distinct groups:

(1) discharging a firearm, air gun or air pistol at a person with one of the requisite intents;

(2) causing bodily harm in any way to a person with one of the proscribed intents.

In the offences comprised in the first branch of the section, the actus reus of the crime is the discharging of the firearm, air gun or air pistol at a person. The offence of discharging a firearm at a person with the requisite intent is committed even though no bodily harm is caused to any person.

(Emphasis added)

[16] The same analysis of the elements of the offence was adopted by this court in R. v. Poisson (1983), 1983 3537 (ON CA), 8 C.C.C. (3d) 381 (Ont. C.A.).

[17] This analysis should be applied to the issue raised in the present case. I can see no valid reason to require proof of an actual arrest, whether in progress or intended, as part of the actus reus of this offence. It follows that the trial judge did not err in his instruction to the jury.

Issue 2: Did the trial judge err in instructing the jury as to the appellant's defence to the offences of discharging a firearm with intent?

[18] The appellant submits that in his instructions to the jury, the trial judge effectively took away his defence to the charges of discharging a firearm with intent. The appellant admitted in his evidence that he had fired his firearm in the direction of the officer, but testified that he had deliberately fired over the officer's head with no intention of harming or endangering his life. The appellant submits that the trial judge's charge effectively removed the issue of whether the appellant had fired at P.C. MacDonald by conflating "fired in the direction of" with "fired at". The key disputed passages read as follows:

Therefore, members of the jury, with respect to count No. 6, if you are satisfied on all of the evidence that the prosecution has proved that Jackson had the intent to prevent his arrest when he discharged the firearm at Constable MacDonald, then it would be your duty to find him guilty on count No. 6.

You can find the intent to endanger life if you find that there was an intent to fire in the direction of Constable MacDonald with the knowledge of the possibility of hitting him and thereby endangering life, or with an intent to fire in the direction with the intent to hit him and thereby endanger life.

Mr. Jackson has testified that he fired the gun. He admits that he fired the gun. He admits that he turned while he was being pursued and that he did fire the gun in the direction from which MacDonald was coming after him but that he did so with the intention of firing over his head and with the intention of dissuading Constable MacDonald from continuing to chase him.

(Emphasis added)

[19] In my view, on a fair reading of the charge as a whole, it would have been clear to the jury that it had to find that the appellant had fired at P.C. MacDonald. On the count of discharging a firearm with intent to endanger life, the trial judge clearly explained to the jury that "you must find as a fact that the accused not only discharged the firearm at John MacDonald, but that he did so with the intent to endanger his life." More generally, the trial judge's instructions did bring out the appellant's defence that he had fired over the officer's head rather than at the officer.

[20] Accordingly, I would not give effect to this ground of appeal.

Issue 3: Did the trial judge fail to give a proper instruction on reasonable doubt?

[21] The trial in this case took place shortly after the release of the Supreme Court of Canada's decision in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733. For the most part, the reasonable doubt instruction complied with the direction given in Lifchus, but exception is taken to the following passages:

If, on the other hand, you as conscientious jurors are left in the state of nagging or lingering doubt that the Crown has failed to prove an essential element of the offence charged, then it is your duty to acquit the accused and find him not guilty.

[Reasonable doubt] is not a frivolous or fanciful doubt conjured up in the mind of a timid juror in order to avoid doing an unpleasant task. Reasonable doubt can be doubt based upon the evidence or a conflict of the evidence or lack of evidence in a given case and depending on the circumstances. It depends on what evidence you accept as the truth and what evidence you do not accept.

(Emphasis added)

[22] The respondent concedes that the references to "nagging or lingering doubt" and "timid juror" do not comply with the Lifchus model charge and that these phrases ought to have been avoided. However, the respondent submits that when read as a whole, the overall effect of the charge was to accurately and adequately convey to the jury the meaning of reasonable doubt.

[23] I agree with the respondent's submission on this point. It is well established that the test to be applied on appellate review is whether there is substantial compliance with the principles set out in Lifchus: see R. v. Pan, R. v. Sawyer, 2001 SCC 42, 200 D.L.R. (4th) 577. In my view, read as a whole, the trial judge's instructions did provide adequate guidance to the jury on the standard of proof and the impugned passages could not have confused or misled the jury about the meaning of reasonable doubt.

Issue 4: Did the trial judge commit a "Miller error" in that he failed to instruct the jury to consider all of the evidence in determining whether or not the Crown had proven its case beyond a reasonable doubt?

[24] The appellant submits that the combination of several elements of the trial judge's charge amounted to reversible error on the authority of R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, 68 C.C.C. (3d) 517 (C.A.): references to "certain facts" having been proven; a direction to "apply the findings of fact to the law"; the statement that "[i]t depends on what evidence you accept as the truth and what evidence you do not accept"; and the statement that "[w]here you have established facts you may also infer additional facts from established facts if the additional inference flows easily and logically from the established facts."

[25] I agree with the respondent that these passages must be read in light of several passages in the charge where the trial judge made it very clear to the jury that they were to decide the case on the basis of all of the evidence. The trial judge charged the jury along the lines mandated by R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, several times in his instructions and again in response to a question from the jury.

[26] While it would have been preferable for the trial judge to avoid the language relied upon by the appellant, it is my view that, when read as a whole, the trial judge's instructions adequately conveyed to the jury the need to assess the case on all of the evidence. A similar complaint was dismissed by this court in R. v. Henderson (2001), 2001 4540 (ON CA), 145 O.A.C. 150 at para. 9:

Language of this kind . . . should perhaps be avoided to remove any possible risk of confusion. However, we do not agree that, when read in the context of the charge as a whole, it ran afoul of the principle established in R. v. Miller (1991), 1991 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont. C.A.). Unlike the situation in Miller, the jury was not told to divide the evidence into piles of evidence accepted and evidence rejected and remove from consideration the pile of evidence they did not accept. Throughout the charge in the present case, the jury was directed to base its verdict on the whole of the evidence. Immediately prior to the impugned instruction, the jury was instructed that their task was to determine "on the whole of the evidence" whether the Crown had proven guilt beyond a reasonable doubt. Later instructions relating to the essential elements to be proved consistently referred to whether the jury was satisfied that the offences alleged were made out based on "all the evidence" and not, as in

Miller, only upon "accepted" facts nor the "accepted" evidence. We are satisfied that the jury could not have been misled by the impugned passage as to the appropriate manner to approach the fact finding process.

[27] For the same reasons, I would not give effect to this ground of appeal.

Issue 5: Did the trial judge err in failing to give the jury a limiting instruction regarding the multiple counts in the indictment?

[28] The appellant submits that given the multiple counts in the indictment, the trial judge should have given a limiting instruction cautioning the jury not to infer guilt on one count from evidence of guilt on another count. In effect, the appellant submits that there was a risk that the jury would draw an impermissible propensity inference by concluding that because the appellant had committed certain offences, he was more likely to have committed other offences.

[29] I do not accept this argument in the circumstances of the present case. While it is clear that such a limiting instruction is ordinarily required where there are multiple counts in an indictment, the particular facts of each case must be considered. Here, there was a closely connected series of events that gave rise to several charges of varying gravity that involved various related elements. In the circumstances, it is difficult to see how the trial judge could have delivered an intelligible instruction to the jury with respect to the risk of propensity evidence.

[30] The appellant essentially admitted guilt on the counts of possession of an unregistered restricted firearm, pointing that firearm without lawful excuse, and carrying a weapon for a purpose dangerous to the public peace. In considering whether the Crown had proven the appellant's guilt on the remaining charges, the jury was clearly entitled to take into account the facts that the appellant had a restricted weapon in his possession, that he pointed it, and that he had the weapon for a dangerous purpose. In my view, in these circumstances, the question of propensity does not really arise. The elements admitted by the appellant were part and parcel of the remaining charges.

[31] The trial judge made it clear to the jury that it was to consider the evidence on each count separately and that the real issue before it was whether the appellant had the requisite intention for the offences of attempted murder and discharging a firearm with intent to endanger life or to prevent his own arrest. In the circumstances of this case, the appellant's possession and use of the weapon, which was the subject of certain charges, was a building block in the Crown's case on the other charges. In my view, this distinguishes this case from a situation in which an accused is charged with various offences arising from different circumstances that must be determined on their own and that do involve a significant risk that the jury will use propensity reasoning to find guilt if not instructed otherwise.

Issue 6: Did the trial judge err in answering the jury's question with respect to the consequences of failing to agree on a verdict?

[32] The trial judge concluded his instruction to the jury at 11:05 a.m. A number of objections were raised by counsel for the appellant and the trial judge gave a further instruction at 11:24 a.m. The jury posed a question which was answered by the trial judge at 4:08 p.m. and the jury again retired at 4:20 p.m. At about 8:30 p.m., the jury asked the following question: "What are the consequences of not reaching a unanimous decision on some of the charges?" The trial judge answered this question as follows:

The answer is that the consequences of not reaching a unanimous decision on some of the charges means that you can return a verdict on those charges upon which you have a unanimous decision, if that is the case, and return a statement that you do not agree.

If you cannot arrive on a verdict with respect to those charges on which you are unable to come to an agreement, the consequences of that decision is that those charges upon which you have been unable to arrive at an agreement will have to be tried again by another jury who will have the same responsibility that you have, and that is, arriving at a verdict on those charges.

This was followed by a further instruction regarding unanimity to which no exception is taken.

[33] At approximately 9:50 p.m., the trial judge asked the jury to return to the courtroom. He told them that if there was a reasonable prospect of their reaching a verdict, it would be appropriate for them to suspend their deliberations and get some rest overnight. He continued as follows:

That, of course, depends on whether you are continuing to deliberate with reasonable prospect of arriving at a verdict. The accommodation is available for you if you wish to avail yourself of that. So I will ask you simply to let me know in the next five minutes what you wish to do.

[34] The jury retired and returned with its verdict approximately 15 minutes later.

[35] The appellant submits that the trial judge erred in two respects. First, he submits that by advising the jury that the consequence of its failure to reach a verdict would be that another jury would have to try the case, the trial judge erroneously introduced an extraneous factor that was irrelevant to the jury's task and that should not have been put to the jury. The appellant relies on the decision in R. v. G. (R.M.), 1996 176 (SCC), [1996] 3 S.C.R. 362, 139 D.L.R. (4th) 193 at paras. 26 and 50, where Cory J. stated the following:

(1) Pursuant to their oath, jurors must endeavour to render a verdict based upon the evidence which has been adduced before them. (2) The strength and genius of trial by jury is that members of the community reason together to reach a verdict based solely upon the evidence. (3) It follows from the last principle that it is important to allow a jury to deliberate without imposing any form of pressure upon them. (4) If a jury has apparently reached an impasse, any exhortation given should avoid introducing factors which are extraneous and irrelevant to the task of reaching a verdict, and should not encourage a juror, by reference to extraneous considerations or by exerting unwarranted pressures, to abandon an honestly held view of the evidence. The exhortation must not interfere with the right of jurors to deliberate in complete freedom uninfluenced by extraneous pressure. (5) It follows that a juror should not be encouraged or exhorted to change his or her mind simply for the sake of conformity. (6) A deadline for reaching a verdict should not be imposed and a jury should never be rushed into returning a verdict.

Not every improper reference in an exhortation will lead to a new trial. Instead, the exhortation must be viewed as a whole and in the context of the proceedings. The length of the deliberations, the nature of the question asked by the jury, and the length of the deliberations following the exhortation are all relevant. In considering all of these factors, an appellate court must determine whether there is a reasonable possibility that the impugned statements either coerced the jury or interfered with its right to deliberate in complete freedom from extraneous considerations or pressures, or caused a juror to concur with a view that he or she did not truly hold.

[36] Second, the appellant submits that the trial judge effectively gave the jury five minutes to make up its mind and that there was a risk that his instruction resulted in a compromise verdict.

[37] I agree that the trial judge's answer to the jury's question was inaccurate. Jury impasse on some of the charges does not always result in another trial. As the circumstances of this case demonstrate, the Crown may elect not to proceed on charges upon which the jury could not agree. However, I do not accept the argument that the trial judge's answer to the jury's question amounted to an improper exhortation or that it otherwise constituted reversible error. Immediately following the impugned passage, the trial judge gave the jury a proper instruction in keeping with G. (R.M.), supra. In my view, the reference to a further trial did not give rise to a reasonable possibility that the jury was coerced or that there was interference with its right to deliberate in complete freedom from extraneous considerations or pressures.

[38] Nor do I accept the submission that the jury was effectively given a five-minute deadline for its verdict. The hour in the day had come when a decision had to be made about whether and how the jury wished to continue. The trial judge politely gave the jury five minutes to assess the situation from that perspective, and to plan its course of action. He did not tell the jury that it had five minutes to decide the case. I do not agree that the jury could have interpreted the trial judge's statement as a deadline or ultimatum.

[39] Accordingly, I would not give effect to this ground of appeal.

Sentence Appeal

[40] After both Crown counsel and the appellant's counsel had made their submissions with respect to sentencing, Crown counsel stated: "Your Honour, I have just been advised that P.C. MacDonald would like to address the court." Counsel for the appellant objected. The trial judge permitted P.C. MacDonald to be sworn and to make a statement.

[41] In his statement, P.C. MacDonald explained to the trial judge that he was concerned about the increasing risk to police officers from the use of handguns and firearms. P.C. MacDonald complained that the hands of the police are "increasingly more and more tied down by regulations and rules and bureaucratic red tape". He indicated that, in his opinion, the appellant had deliberately lured P.C. MacDonald to follow him "for the sole purpose" of shooting him. He explained his belief that although the appellant could easily have escaped, the appellant had deliberately "egged" him on.

[42] Defence counsel interrupted to renew his objection. He pointed out that no victim impact statement had been filed, nor had the defence been given any notice of P.C. MacDonald's intention to make a statement. The trial judge ruled that the officer should not be permitted to continue.

[43] As required by s. 726 of the Criminal Code, the trial judge gave the appellant an opportunity to make a statement before being sentenced. The appellant reiterated his concerns regarding police racism but stated that he was sorry for what he had done and that he had learned a great deal from the 14 months he had spent in pre-trial detention.

[44] In the trial judge's reasons for sentence, he began as follows:

The sad fact is that this case has done absolutely nothing to contribute to the resolution of one of the most serious chronic social problems in our community. If anything it has exacerbated the problem. The comments that have been made by the accused, the comments that have been made by the victim, Police Constable MacDonald, fortify the grave concern that we should all have about the problem that continues to fester and does not seem to be adequately addressed by persons who should be in a position of responsibility to address those issues before the conflicts flare up. It is somehow left to the Court, the last post to deal with the problems after the event, to decree some sort of just resolution to an ongoing problem that does nothing more than to bring more and more of these tragic events to this level.

[45] The trial judge placed considerable emphasis on the seriousness of the offence. Although he indicated that the court was bound to take into account the circumstances of the offender, he stated that the "overriding interest" was the protection of the public. The trial judge noted the appellant's concerns regarding racism and stated: "Racial prejudice seen as an excuse for commission of violent crimes involving firearms is the saddest tragedy we face." He denunciated what had been referred to in the evidence as the "inverted heroics" of youthful offenders who carry weapons and display aggressive and antisocial conduct. He stated that the fact that the victim was a police officer was an aggravating factor. With respect to rehabilitation, the trial judge stated the following:

The background, the antecedents of the offender are to be considered, his prospects for rehabilitation and any rehabilitation that has already been achieved are to be considered. The prospects for rehabilitation depend in large measure on what the offender does with himself from this point forward. It is not generally clear or obvious to the Court that this offender who appears here today is going to be an exemplary citizen tomorrow and for the years to come.

The Court has to accept with a certain amount of faith the representations that are made and to make one's own judgment.

Jeremin Jackson has the choice as to what he is going to make of his life. He must be incarcerated for a considerable period of time. What he does with that period of incarceration is entirely up to him. At some point he will be released from custody. What he does and how he conducts himself in that period is entirely his decision.

[46] The trial judge concluded that a lengthy period of imprisonment was required. He found the appropriate and fit sentence to be in the range of ten years. Given the appellant's 14 months of pre-trial custody, the trial judge sentenced the appellant to seven years for the offence of discharging a firearm with intent to endanger life, two years concurrent for possession of an unregistered restricted firearm, two years concurrent for carrying a weapon for a purpose dangerous to the public peace, and five years concurrent for discharging a firearm with intent to prevent arrest.

[47] The appellant submits that the trial judge erred in considering P.C. MacDonald's statement. He submits that the trial judge further erred in under-emphasizing the appellant's prospects for rehabilitation while overemphasizing the prevalence of crime in the community, general deterrence and denunciation.

[48] In my view, the trial judge erred in permitting P.C. MacDonald to make his statement during the sentence proceedings.

[49] Section 722 of the Criminal Code provides that a court shall consider a victim impact statement filed by a victim. As a victim, P.C. MacDonald was entitled to file a victim impact statement. However, he did not do so and did not offer any reason to explain why he had not followed the procedure under the Criminal Code, which was intended to afford him the opportunity of conveying to the trial judge the impact of the offence on him.

[50] P.C. MacDonald's statement was inappropriate from both a procedural and a substantive perspective. From a procedural perspective, the statement did not follow the Criminal Code provisions concerning the filing of a victim impact statement, and the sentencing procedure mandated by the Criminal Code does not provide for or contemplate the making of the kind of statement at issue here. Further, the defence had no notice or warning of what the officer intended to say. Indeed, it appears that even Crown counsel was unaware of P.C. MacDonald's intention to make a statement and of what P.C. MacDonald intended to say. Crown counsel, therefore, was not equipped to ensure that P.C. MacDonald would at least confine his remarks to what is permitted in a victim impact statement. In these circumstances, I find it surprising that Crown counsel would ask the trial judge to hear P.C. MacDonald, particularly at such a critical point in the proceedings. In my view, Crown counsel had a responsibility t o ensure that the proposed content of the statement was admissible. While I do not wish to be taken as endorsing the appellant's concerns regarding racist attitudes among the police, it does seem to me that given those concerns and the strong feelings they provoked, it was particularly inappropriate for Crown counsel to allow P.C. MacDonald to make a statement just as the trial judge was about to impose the sentence.

[51] From a substantive perspective, P.C. MacDonald's statement exceeded the limits of what is permitted in a victim impact statement. Section 722 provides that a victim impact statement may describe "the harm done to, or loss suffered by, the victim arising from the commission of the offence". However, P.C. MacDonald's statement went well beyond this permissible scope of a victim impact statement. P.C. MacDonald gave evidence regarding the causes and incidence of crime, the use of firearms and the facts of the offences alleged against the appellant. Even assuming that any Crown evidence along these lines was admissible, the evidence should have been led earlier in the sentencing proceedings to afford the appellant the opportunity to test, meet or answer it with evidence or submissions.

[52] I do not accept the respondent's submission that a statement of this kind falls within the contemplation of the Criminal Code provisions relating to victim impact statements. At the time of sentencing, s. 722(3) provided as follows:

722(3) A statement of a victim of an offence prepared and filed in accordance with subsection (2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged pursuant to section 730.

(Emphasis added)

[53] The respondent also relies on s. 723(2), which required the court to hear "any relevant evidence" on sentencing, and on s. 723(3), which provided as follows:

723(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.

(Emphasis added)

[54] In my view, these provisions do not assist the respondent. I do not read s. 722(3) as giving the prosecution or the victim the option of either providing a victim impact statement or making a statement to the court immediately before a sentence is passed. The references to filing a victim impact statement in accordance with s. 722(2) and to "any other evidence" indicate to me that s. 722(3) is subsidiary to s. 722(2) and that it merely supplements the normal procedure with respect to victim impact statements. Section 722(3) does not allow for an alternate method of placing victim impact evidence before the court. With respect to s. 723(2), I do not read this provision as requiring a court to consider evidence tendered in a manner that fails to respect directly applicable Criminal Code provisions governing its admissibility. Finally, I fail to see how s. 723(3) has any relevance to the present case as the court clearly did not require the production of further evidence on its own mot ion.

[55] By enacting the victim impact provisions as part of the sentencing process, Parliament has indicated the importance of giving due regard to the views and concerns of victims and to the need to treat victims with courtesy, dignity and respect. I can certainly understand why P.C. MacDonald felt as strongly as he did about this serious crime, which had endangered his life. However, it is important that the procedures contemplated by the Criminal Code for victim impact evidence be followed. In my view, the Criminal Code does not allow a victim, especially one who has not given a victim impact statement, to make his own plea for a stiff sentence after all of the evidence has been called and after both counsel have made their submissions. By asking the court to follow this unusual procedure, Crown counsel and P.C. MacDonald brought about a situation that created an appearance of unfairness at one of the most critical moments in the process.

[56] On appeal, the respondent has attempted to repair the damage by tendering a written victim impact statement from P.C. MacDonald as fresh evidence. In my view, this document is inadmissible. The due diligence requirement for fresh evidence has plainly not been met and no explanation has been given as to why a proper statement was not prepared at the time of trial. Moreover, while the statement includes some information regarding the impact of the offence on the victim, it repeats many of the concerns mentioned in P.C. MacDonald's statement at trial, which fall outside the limits I have described for victim impact statements.

[57] In my respectful view, the trial judge's error in permitting P.C. MacDonald to make his statement was compounded when the trial judge made explicit reference to certain impermissible aspects of that statement in his reasons. In view of these errors, it is open to this court to review the sentence imposed by the trial judge.

[58] The appellant was 20 years old at the time of the offence and a student in grade 12. He had a prior conviction for assault. He submitted letters from teachers, one of whom testified at the hearing. The teacher who testified indicated that while the appellant had had some difficulty in adjusting to the complexity of a multicultural society, and while he had been difficult to reach, he had shown himself to be an "articulate, sensitive, intelligent, analytical young man" with a voracious appetite for books.

[59] The appellant submits that given his age and minor prior record, more emphasis should have been placed on rehabilitation and individual deterrence and less emphasis should have been placed on denunciation and general deterrence. The appellant submits that the trial judge over-emphasized the prevalence of the crime, general deterrence and denunciation and that he failed to consider sufficiently the appellant's prospects for rehabilitation.

[60] I agree with the respondent that this was a very serious offence and that it warranted a substantial period of imprisonment. The possession and use of firearms represent a serious threat to public safety and the use of a firearm against a police officer is an aggravating factor. However, I do not accept the respondent's submission that a sentence of the severity imposed in this case was fit. While the appellant committed very serious offences meriting significant punishment, this consideration has to be balanced with the interest of rehabilitation in arriving at a fit sentence. In my view, the sentence imposed did not achieve an appropriate balance between denunciation and general deterrence, on the one hand, and specific deterrence and rehabilitation, on the other. Given the appellant's young age and minor prior record as well as the evidence showing that he had some prospect of rehabilitation, the trial judge should have given his future prospects greater consideration.

[61] I agree with the appellant that the sentence effectively indicated to the appellant that he had no hope of rehabilitation and that the sentence was unduly severe. In my view, in the circumstances of this case, a sentence in the range of ten years' imprisonment was not fit.

[62] Sentences in the range of seven years have been imposed for similar, if not more serious, offences: see R. v. Boomhower (1974), 1974 2650 (ON CA), 20 C.C.C. (2d) 89, 27 C.R.N.S. 188 (Ont. C.A.); R. v. Leventhal (1988), 29 O.A.C. 337 (C.A.).

[63] In my view, a total sentence in the range of seven years rather than ten years is appropriate. In view of the appellant's 14 months of pre-trial custody, I would vary the sentence of seven years for discharging a firearm with intent to endanger life to a sentence of four years and eight months. I would not interfere with the concurrent sentences imposed for the other offences.

Disposition

[64] For the foregoing reasons, I would dismiss the appeal from conviction. I would grant leave to appeal the sentence and allow the appeal to the extent of varying the total sentence to four years and eight months as set forth in these reasons.

Conviction appeal dismissed; sentence appeal allowed.