DATE: 2002-04-05
DOCKET: C35292

COURT OF APPEAL FOR ONTARIO

WEILER, CHARRON & SHARPE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Shawn Porter, for the respondent

Respondent

• and -

HOPETON SCOTT

Russell Silverstein, for the appellant

Appellant

Heard: March 27, 2002

On appeal from conviction on February 4, 1999 and sentence on May 4, 1999 following a trial before The Honourable Justice Wein and a Jury.

CHARRON J.A.:

[1] The appellant Hopeton Scott and his co-accused Elicia Bailey were charged with attempted murder, assault with a weapon and uttering a threat to cause death. The offences arose out of a fight that broke out at a party during which the complainant was attacked with broken beer bottles. She suffered extensive scarring on her face, arms, torso and legs as a result of her injuries. Following a trial by judge and jury, both accused were acquitted of attempted murder but were convicted of the included offence of aggravated assault. The appellant was also convicted on the charge of assault with a weapon and his co-accused of the included offence of simple assault. Both accused were acquitted of the charge of uttering threats. The appellant was sentenced to four years’ imprisonment on each count to be served concurrently. Ms. Bailey was sentenced to a 12-month conditional sentence.

[2] The appellant appeals from his convictions on three grounds, all related to the trial judge’s instructions to the jury. He appeals his sentence on the ground that it is excessive, particularly having regard to the lighter sentence imposed on the co-accused.

[3] The first ground of appeal relates to the trial judge’s instructions to the jury on reasonable doubt. The trial judge instructed the jury in terms virtually identical to the model instruction set out by the Supreme Court of Canada in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, except in one respect. The trial judge told the jury that a reasonable doubt is one “that is logically derived from the evidence”, but she did not add the words “or an absence of evidence”.

[4] The appellant concedes that this omission does not necessarily invalidate the charge and, on this point, refers more particularly to this court’s decisions in R. v. Brooks (1998), 1998 5686 (ON CA), 129 C.C.C. (3d) 227, rev’d on other grounds (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.), and R. v. Bryce (2001), 2001 24103 (ON CA), 140 O.A.C. 126. He submits, however, that the trial judge went further by instructing the jury in a subsequent passage to ignore gaps in the evidence as follows: "You may wish that the evidence was more complete in certain areas, but you must reach your verdict on the evidence as it stands." The appellant submits that, in the circumstances of this case, where the failure to call one particular witness was of significance at trial, these instructions were fatal.

[5] The relevant facts as they relate to this issue are best explained by setting out the relative position of the parties at trial. It was alleged by the Crown that early in the morning hours of September 7, 1996, the appellant was working as a disc jockey at a private party attended by the co-accused, Ms. Bailey, the complainant, Vianne Taylor, and others. After a dispute erupted on the dance floor between the complainant and the co-accused, the appellant lunged at the complainant and struck her with a beer bottle. The complainant was then assaulted by both co-accused who continued to attack her with broken bottles.

[6] It was the position of the appellant and the co-accused at trial that the complainant became embroiled in a dispute on the dance floor with a woman named Penny Gray and that the only involvement that either the appellant or Ms. Bailey had in the dispute was as peacemakers. The appellant testified that he had himself been assaulted by the complainant shortly before she became involved in a fight with Ms. Gray. After being assaulted, he simply did not know what had happened. Ms. Bailey testified that it was Ms. Gray who had cut the complainant with a broken bottle.

[7] Penny Gray was not called as a witness at trial by either the Crown or the defence. The evidence revealed that Ms. Gray was known to both accused and that, although she was a suspect, she had never been found by the police. The trial judge instructed the jury in general terms about the police investigation and the fact that all witnesses to the incident may not have been called in the following words:

Now, I am not going to review in any detail the evidence of the police officers who testified about the arrest at the apartment and the injuries that they saw on Mr. Scott and Ms. Bailey. You also heard some evidence about one of the officers’ efforts to interview other persons in the area and the difficulty that he had in getting further information. I just remind you not to speculate on the evidence. This evidence might assist you in understanding the police investigation, but the fact that other persons may not have been cooperative should in no way be taken by you as reflecting negatively on either of the accused.

As well, in any criminal trial, neither the Crown or the accused are obliged to call every witness who may have knowledge of matters in issue, nor do they have to produce all documents or objects referred to in the evidence. You may wish that the evidence was more complete in certain areas, but you must reach your verdict on the evidence as it stands.

The quality of the police investigation is not directly in issue here. If you are satisfied beyond a reasonable doubt, the fact that the police might have done more is not in issue. If you are not satisfied beyond a reasonable doubt, the fact that you sympathize with limited police resources is irrelevant. Try the case on the evidence before you on the basis of the standard of proof beyond a reasonable doubt.

[8] After instructing the jury on the essential elements of each offence and making an extensive review of the evidence, the trial judge instructed the jury on how to assess the evidence in accordance with the approach set out by the Supreme Court of Canada in R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397:

Ladies and gentlemen, it is obvious that there is contradictory or conflicting evidence in this case on the essential issues. It should be obvious to you that the evidence favouring the Crown and that favouring each of Mr. Scott and Ms. Bailey on these matters cannot stand together. Each version is at odds with the other. Since each version cannot be factually true, you must assess the credibility of the witnesses supporting each version.

I direct you that you must consider each of the essential issues, as I have outlined them to you on the following basis, only after having first assessed all the evidence and the credibility of all the witnesses relating to his matter. First, if you accept the evidence favouring whichever accused you are considering, either Mr. Scott or Ms. Bailey, including his or her own testimony on these issues and find it to be factually true when weighed against the contradictory evidence favouring the Crown, you must acquit Mr. Scott or Ms. Bailey.

Secondly, even if you do not find as a fact that the evidence favouring whichever accused you are considering on these matters is true, but if you are left in a reasonable doubt by it, you must also acquit Mr. Scott or Ms. Bailey.

Third, even if you do not have a reasonable doubt on these matters as a result of the evidence favouring Mr. Scott or Ms. Bailey because you reject that evidence as untrue, you must still determine whether the Crown has convinced you of the guilt of Mr. Scott or Ms. Bailey beyond a reasonable doubt on the basis of the evidence which you do accept and find to be factually true.

[9] In the circumstances of this case where it appeared that the defence may well have been in as good as, if not better, position than the Crown to find Ms. Gray and call her as a witness, it is my view that the trial judge did not err in the manner in which she dealt with the absence of this witness. Counsel for the appellant concedes that the circumstances were not such that the jury should have been instructed that they could draw an adverse inference from the fact that Ms. Gray was not called to testify. Indeed, it is not at all clear that any inference which could have been drawn from the failure to call Ms. Gray would benefit either accused.

[10] It is also apparent from the record that Ms. Gray’s absence at trial did not figure as prominently in the theory of the defence at trial as suggested by counsel on appeal. Although the closing addresses of counsel have not been transcribed for the purpose of the appeal, it is apparent from the trial judge’s review of the evidence and of the respective theories of the Crown and the defence that the main thrust of the defence was that the complainant was deliberately lying about the identity of her attackers. The defence was also relying on the inconsistencies in her evidence and the inconsistencies of other eye-witnesses to the incident. The central issue was whether the Crown had proven beyond a reasonable doubt that Mr. Scott and Ms. Bailey had attacked the complainant as alleged. In this case, when the charge is considered as a whole, I am satisfied that this jury would have clearly understood the exacting nature of the burden of proof. Finally, it is noteworthy that no objection to the charge was made by counsel at trial. I would not give effect to this ground of appeal.

[11] The second ground of appeal relates to the trial judge’s answer to the jury’s request during the course of their deliberations “for a clear definition of reasonable doubt”. This request was one of several questions, three of which related to a review of the evidence and one that related to the definition of aiding. The trial judge canvassed the matter with counsel and then provided the jury with the information that they requested by repeating her earlier instruction on reasonable doubt.

[12] The appellant submits that the answer to the request for a clear definition of reasonable doubt was incomplete because it ought to have included a repetition of the W. (D.) instruction referred to earlier.

[13] I see no merit to this ground of appeal. No one at trial suggested that the jury’s request for the definition of reasonable doubt be interpreted in the manner now suggested on appeal. In answering the jury’s questions, the trial judge also invited the jury to tell her if they needed more assistance. The jury did not request any further assistance and no objection was made by counsel.

[14] The third ground of appeal relates to the trial judge’s instruction on the use that could be made of the complainant’s criminal record. The complainant had recently pleaded guilty to an offence of assault with a weapon in relation to her daughter. She testified, however, that she had not committed the offence but had simply pleaded guilty to protect her daughter. It was the position of defence at trial that the complainant’s plea of guilty to an offence that she had not committed detracted from her credibility.

[15] In addition to giving the usual instruction on the limited use that could be made of the criminal record of any witness, namely in judging the credibility and truthfulness of that witness, the trial judge gave the following additional instruction with respect to the complainant’s record and its effect on her credibility in accordance with the defence theory:

With respect to Ms. Taylor’s evidence, [counsel for Mr. Scott] reminds you that, on her own evidence, she was prepared to lie in court with respect to her previous guilty plea in order to protect her daughter. He suggests that the details she gave about Mr. Scott’s actions, such as leaping over the DJ equipment, are simply not credible, and overall she may be either deliberately or inadvertently mistaken….

[16] The appellant now takes the position that it was incumbent on the trial judge to instruct the jury that the complainant’s conviction for assault with a weapon could be used by them as evidence of her propensity for violence and, hence, that it could be used to support the credibility of the appellant’s testimony that she had attacked him.

[17] I see no merit to this ground of appeal. There was no suggestion at trial that the appellant had acted in self-defence and no request was made for this kind of instruction. Indeed, such an instruction would have been contrary to the defence contention at trial. The force of the appellant’s contention at trial was that the complainant had actually been less violent with her daughter than the nature of the conviction would suggest and that she had lied in court when she pleaded guilty to the charge. It is not open to the appellant on appeal to reverse a tactical position taken at trial.

[18] The main argument with respect to the sentence appeal relates to the disparity between the sentence imposed on the appellant and that imposed on the co-accused. The trial judge addressed this specific concern in her reasons for sentence:

The sentence of four years as submitted by the Crown is not, in my view, inappropriate. A specific concern I have with imposing that sentence relates to the issue of disparity. In my view, the difference in the sentence imposed on Ms. Bailey and that imposed on Mr. Scott is justified by the lesser degree of involvement of Ms. Bailey and the particular personal circumstances of each of them. I have considered the legislative provisions that direct that a similar sentence should be imposed when sentencing similar offenders on similar offences in similar circumstances. Nonetheless, giving the matter my best consideration, that principle suggests to me that four years is appropriate. In my view, a well informed member of the public, cognizant of all of the facts relevant on sentencing would understand the reasons for the different sentence imposed on Ms. Bailey.

[19] The trial judge’s finding that Ms. Bailey was less involved in the offence than the appellant was supported by the evidence and the jury’s verdict. Ms. Bailey’s personal circumstances were also significantly different from those of the appellant. The trial judge’s view on the issue of disparity is entitled to deference in this court. Further, having regard to the viciousness of the attack on the complainant; the serious and permanent nature of the injuries; the emotional impact upon her; and the appellant’s antecedents, which included a previous incarceration for 20 months, it cannot be said that the sentence was unfit.

DISPOSITION

[20] For these reasons, I would dismiss the appeal against conviction. I would grant leave to appeal the sentence but dismiss the appeal.

RELEASED: April 5, 2002

“Weiler J.A.”

“Charron J.A.”

“Sharpe J.A”