DATE: 20030220

DOCKET: C36631

COURT OF APPEAL FOR ONTARIO

MACPHERSON, SIMMONS and GILLESE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Anthony Moustacalis for the appellant

Respondent

• and -

HAROLD MUNRO

Jamie Klukach for the respondent

Appellant

Heard: November 18, 2002

On appeal from the convictions by Justice Frank K. Roberts of the Superior Court of Justice, sitting with a jury, on September 20, 2000 and the sentence imposed on October 20, 2000.

GILLESE J.A.:

[1] Harold Munro, the appellant, was a visitor in the home of the complainants, Justin Guilmette and Halina Dobson, for two weeks in August of 1999. On August 25, 1999, the appellant was asked to leave the complainants’ home. A violent altercation took place in which the appellant slashed both complainants with an Exacto knife and threatened to kill them if they “ratted him out”. Later, while in jail, the appellant made a call to Guilmette threatening him if he testified.

[2] As a result of those incidents, the appellant was convicted by a judge and jury of two counts of aggravated assault, one upon each of Dobson and Guilmette, two counts of threatening death, and two counts of obstructing justice. On October 20, 2000, he was sentenced to eight years imprisonment, in addition to his pre-trial custody of thirteen months and four days, and to a lifetime firearms prohibition.

[3] At trial, the appellant testified that the Guilmette/Dobson residence was a crack house and that Guilmette and Dobson were armed, respectively, with a baseball bat and a syringe and that he grabbed the knife to defend himself. He claimed that his subsequent conduct amounted to self-defence.

[4] The appellant appeals against convictions and sentence.

THE FACTS

[5] In August of 1999, Justin Guilmette and his girlfriend, Halina Dobson, lived at 486 Lansdowne Avenue in Toronto. Mr. Vongratsamy, a tenant, lived there as well.

[6] Guilmette worked as a flooring contractor. He was five feet five inches and weighed 150 pounds. The appellant was five feet eight inches in height and weighed 165 pounds.

[7] Guilmette described the neighbourhood in which he lived as one that was full of drug users and drug dealers.

[8] Guilmette admitted that he used marijuana and alcohol and had used cocaine in the past. He has a criminal record. In cross-examination, he admitted that there was an outstanding drug charge against him.

[9] He testified that his girlfriend was a former heroin addict with a crack cocaine addiction. He stated that her drug use lead to problems, as she would invite over “crack heads” to share drugs and he would have to evict those people when he came home from work.

[10] In August of 1999, Dobson invited the appellant to stay for a couple of weeks.

[11] On August 24, 1999, the day before the incident, Guilmette returned to Toronto from London, Ontario where he had been working. He smoked some marijuana and drank four or five beers. He did not believe he was under the influence of drugs or alcohol when he arrived home at 5:00 or 6:00 a.m on August 25^th. On arrival, he saw two people in the house, a female in the kitchen and a male named Donny Moir in the living room. He screamed for them to leave and Moir did so. The female, described as “Spanish”, did not. Guilmette then grabbed her and may have struck her once or twice and led her out of the house. With Dobson’s help, he pushed her off the porch. During cross-examination, he admitted his blows caused the woman to bleed, likely from his striking her face, and that Dobson had grabbed the woman’s hair.

[12] According to Guilmette’s testimony, after the ejection he went to sleep and was awoken the same day at approximately 11:00 a.m. by a commotion. The noise was caused by the appellant arguing with Dobson. He overheard Dobson tell the appellant to get out of the house -- “We’re fed up. We’ve had enough.” Guilmette stayed in bed and heard the appellant object to leaving. Dobson then went into Guilmette’s room, shut the door and sat down on his bed. The arguing continued with the appellant in the hallway yelling through the closed door. The appellant then kicked in the door, entered the room and said something to the effect of “I’ll show you”.

[13] The appellant produced Guilmette’s knife from his pocket. Guilmette tried to step between the appellant and Dobson, and the appellant slashed him in the face. Dobson was slashed in the stomach. The appellant then threatened both of the complainants with death if they “ratted him out”. He was in a rage.

[14] The appellant then washed the knife, concealed it in the washroom and left the house.

[15] At the time of the assaults, the appellant allegedly said to Dobson, “I am so angry, I could kill someone. I could kill the two of you or maybe I’ll just kill a cop like my brother did.”

[16] The appellant’s brother had been convicted of killing a police officer.

[17] Both victims were treated in the hospital with Guilmette receiving approximately 423 stitches to his face.

[18] Guilmette confirmed that Dobson had HIV/AIDS. There were syringes all around the residence including, possibly, in Guilmette’s bedroom. Dobson used crack cocaine on a daily basis.

[19] Vongratsamy testified that he observed portions of the altercation. He said that it started just before 5:00 a.m. when the appellant gave him some clothes. Dobson wanted the clothes for herself. Dobson asked Vongratsamy if the clothing were items he brought. He said “no” and the altercation between the appellant and Dobson began.

[20] Vongratsamy testified that he heard the appellant and Dobson screaming at each other and that the appellant ran from his room to the complainants’ bedroom. He then heard Dobson screaming “My God, oh my God” which prompted him to leave his room. The next thing he saw was the appellant in the hallway outside his room, with blood on his hand and holding a bloodied knife. He saw Dobson holding her stomach and Guilmette holding a towel on his face.

[21] The appellant was arrested the following day, August 26, 1999, at about 9:35 a.m. He was verbally abusive to the police at the time of arrest; he made no mention at that time about being attacked by the complainants. He said, “I guess my family and you guys are one and one but it won’t be that way for long. These cuffs have to come off soon.” When asked what he meant, the appellant replied, “You guys got it coming. I should have charged at you to see if you had the balls to shoot me. I want to see which one of you guys survives when I sink my teeth into you. I always go for the jugular.”

[22] A few minutes later, while waiting at the elevator, the appellant said to one of the police officers “I should have faked a seizure and bit down on your jugular.”

[23] Sergeant Brown testified that the appellant told him “The whole thing is fucking bullshit. I wasn’t even there and that’s all I got to say.” Following an inquiry by Sergeant Brown about blood being found on his clothing, the appellant told him “That blood’s from shooting up. Look at my fucking arms.”

[24] The Crown called medical evidence that indicated that the appellant’s bruising was consistent with intravenous drug use. Dr. Richard Kim, who examined the appellant shortly after his arrest, testified that the appellant complained about soreness in his arm due to drug use but that the appellant had not complained of anything else.

[25] DNA analysis established the presence of Guilmette’s blood on the appellant’s clothing.

[26] The appellant testified. He said that he observed the eviction of the “Spanish” woman. He described it as very violent, with Guilmette pulling her by the hair and kicking and punching her, and Dobson helping to beat her up. He saw Guilmette break a beer jug over the woman’s head. He had also seen Guilmette get mad at Steven Smith and kick him out of the house just before Smith went to work. The day after the incident involving the “Spanish” woman, the appellant was confronted by Dobson and told to “get the fuck out”. He then heard Dobson say to Guilmette, “Let’s throw him out like we did with that spick bitch.” He testified that Dobson’s demeanour was that she was mad and going crazy. He walked into the bedroom after kicking open the half open door. He said that he did that because he did not want to go to his room and be confronted. He said that he had heard from his sister that Dobson was crazy, that she had been in the “pen”, and that she had stabbed people in the past. He said that shortly after his entry into the room, Guilmette grabbed a baseball bat that had his name, “Justin”, written on it in black magic marker and the fight was on. He testified that Guilmette swung at him from about three feet away hitting him in the arm. He swung again and missed, striking a dresser and knocking off an Exacto knife. The appellant then grabbed the knife. He said he was holding the knife to scare Guilmette but the bat was swung at him again and he cut Guilmette with the knife.

[27] He testified that, in the meantime, Dobson was yelling “I’ll get him, I’ll get him” and he saw her with a syringe in her hand.

[28] The appellant testified that the redness in his forearm was caused by being hit with the bat. He was unable to explain how one swing of a bat might have caused a red mark up and down his forearm. He claimed that he did not tell Dr. Kim about the baseball bat “because the police were too close”.

[29] The appellant denied making the hostile “jugular” comments attributed to him but admitted saying “I should have charged at you to see if you had the balls to shoot me”. He further admitted telling Detective Brown that the whole thing was “bullshit” and that he was not there.

[30] He concluded his evidence by stating that he was defending himself both from Guilmette, who was wielding the bat, and from Dobson, who had the syringe.

[31] The defence was advanced by an aggressive attack on the character of the complainants for violence and upon their credibility.

[32] Although subpoenaed by the Crown, Dobson failed to appear at the trial.

ISSUES

[33] The appellant raises four issues on appeal from conviction.

1. Did the trial judge err in permitting the Crown to adduce a portion of the appellant’s statements to the police?

2. Did the trial judge err in failing to permit the defence to adduce evidence:

(i) of Dobson’s complete criminal record, including other assaults, and

(ii) of a prior inconsistent statement of Guilmette to the police?

3. Did the trial judge err in refusing to permit defence counsel to comment on Dobson’s failure to testify at trial?

4. Did the trial judge err in permitting the appellant’s record to go to the jury?

[34] Defence counsel advised that he was not pressing an alleged error in the charge relating to self-defence. As a result, that ground of appeal is not dealt with.

ANALYSIS

Issue 1: The Appellant’s Statements to the Police

[35] Following a preliminary voir dire, the trial judge ruled on the admissibility of three utterances made by the appellant. At the time of the voir dire, the Crown anticipated that Dobson would attend the trial and testify. The statements considered by the trial judge are:

(1) (to Dobson) “I am so angry, I could kill someone. I could kill the two of you or maybe I’ll just kill a cop like my brother did.”

(2) (to police at the time of arrest) “I guess my family and you guys are one and one but it won’t be that way for long. These cuffs have to come off soon.” When asked what he meant, the appellant replied, “You guys got it coming. I should have charged at you to see if you had the balls to shoot me. I want to see which one of you guys survives when I sink my teeth into you. I always go for the jugular.” A few minutes later, while waiting at the elevator, “I should have faked a seizure and bit down on your jugular.”

(3) (to police) “The whole thing is fucking bullshit. I wasn’t even there and that’s all I got to say.” Following an inquiry by Sergeant Brown about blood being found on his clothing, “That blood’s from shooting up. Look at my fucking arms”.

[36] Although the three statements are referred to as “statements to the police”, that is not entirely accurate as the first statement was allegedly made to Dobson at or around the time of the assault.

[37] When the Crown sought a ruling permitting it to adduce the statements, defence counsel conceded the third statement was relevant. Defence counsel’s concern focussed on the prejudicial effect of those portions of the statements that alluded to the appellant’s brother who had been convicted of murdering a police officer.

[38] The trial judge accepted defence counsel’s submissions and excised the parts of the statements that referred to the appellant’s brother. However, he found that the probative value of the balance of the first two statements outweighed their prejudicial effect because they revealed the state of mind of the accused at the time of the altercation and were relevant to the credibility of Dobson’s assertion of death threats. He ruled the balance of the statements admissible.

[39] The ruling resulted in the following:

(1) The words “or maybe I’ll just kill a cop like my brother did” were to be excised but the balance of the first statement was admissible;

(2) The first sentence “I guess my family and you guys are one and one but it won’t be that way for long” was to be excised and the balance of the second statement was admissible;

(3) The third statement was admissible on the basis of relevancy.

[40] In his charge to the jury, the trial judge confined the relevance of the appellant’s statements to the police to an appraisal of the appellant’s credibility. There was no objection by defence counsel to the trial judge’s instruction on the appellant’s statements to the police.

[41] As Dobson did not testify, statement 1 was not in evidence.

[42] Evidence that an accused is a person of bad character and for that reason likely to have committed the offence is generally inadmissible. Statement 2, made by the appellant to the police, falls within that category of evidence and is therefore prima facie inadmissible. The trial judge ruled it was admissible on the basis that it supported Dobson’s assertion that the appellant had made death threats to her. When Dobson failed to attend and give evidence, the Crown should have made a fresh application to have the admissibility of the statement determined. The trial judge ought to have freshly considered the statement’s admissibility because the original basis for ruling it admissible had changed. A fresh determination as to whether the probative value of the statement outweighed its prejudicial value ought to have been undertaken.

[43] However, I am satisfied that in the circumstances, no substantial wrong was occasioned by admission of the statement. The potential prejudice caused by the statement was minimal as the statement spoke of conduct that was much less grave than was the conduct that underlay the charges.

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

Issue 2: Exclusion of Defence – Tendered Evidence

(i) Dobson’s complete criminal record, including other assaults

[45] Halina Dobson did not testify. Her criminal record was not known to the appellant.

[46] The trial judge ruled that only Dobson’s prior convictions for offences of violence that were temporally proximate enough to the events in question were of sufficient probative value that they should be made known to the jury. This resulted in her convictions for assault on July 18, 1997 and October 9, 1997 being admitted. The only entry for an offence of personal violence on Dobson’s record that was excluded as a result of the ruling was a conviction for aggravated assault in 1993.

[47] The defence had established before the jury that Dobson had a criminal record consisting of 70 prior convictions and that she was a generally unsavoury person prone to episodes of temper and violence.

[48] The trial judge applied the relevant legal principles in R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.) and exercised his discretion appropriately. In any event, in the circumstances, evidence of Dobson’s complete record would have added little, if anything, to the defence.

(ii) Guilmette’s statement to the police regarding an assault by Dobson

[49] While testifying, Guilmette admitted to an incident in which he called the police because of an assault by Dobson. His evidence in court was that Dobson threw a pitcher at the wall, not at his head.

[50] In cross-examination, defence counsel read out the entire police occurrence report relating to the incident. Defence counsel cross-examined Guilmette about inconsistencies between the evidence he had given in court about the incident and that contained in the statement he had previously given to the police.

[51] The trial judge would not permit the defence to call the officer to contradict Guilmette’s trial evidence on the incident.

[52] The jury would have been aware that Guilmette had told the police that Dobson hit him in the head with a pitcher. In the circumstances, I am of the view that Guilmette’s evidence about the incident had been effectively contradicted and nothing would have been gained by calling the investigating officer to the stand.

[53] Accordingly, this ground of appeal fails.

Issue 3: Comment on Dobson’s Absence at Trial

[54] During pre-charge discussions, defence counsel asked that the jury be instructed that an adverse inference could be drawn from Dobson’s failure to testify. The trial judge refused, saying:

In my view, on the facts of this case, that is unreasonable and I’m not going to exercise my discretion. There has been an explanation, the whole lifestyle of these people is such that there are many reasons why she may not be here and I’m not going to make any comment on that. I am ordering counsel not to make a comment on it with respect to the negative inference. The Crown is in a position to call whatever witnesses it can and they must prove their case beyond a reasonable doubt.

[55] The trial judge added that he did not see anything wrong with defence counsel commenting on the fact that the jury did not have the benefit of Dobson’s evidence.

[56] The trial judge correctly held that there was no basis for instructing the jury that an adverse inference could arise from Dobson’s failure to testify. There was no evidentiary foundation for such an instruction. The Crown did not choose not to call Dobson as a witness. Rather, she had been subpoenaed but did not appear. There was no indication that her testimony would have hurt the Crown’s case. R. v. Zehr (1980), 54 C.C.C. (2d) 65 (Ont. C.A.).

[57] Defence counsel made the following comments in his closing address.

Despite Justin’s testimony that he was and still is in a common- law relationship with Halina Dobson, you as members of the jury, unfortunately, did not hear from her. She did not testify as a witness for the Crown and thus could not be subject to the rigors of cross-examination to test her credibility and perception of events like everyone else was, including the accused himself. In our system of justice, the Crown calls its case and decides who to call. The Crown, in order to get a conviction as I’ve already mentioned, must prove its case without a reasonable doubt. You will have to assess her lack of evidence, together with all the evidence, to assess that the Crown has established this heavy burden.

[58] The Crown, in his closing address, commented on Dobson’s absence in the context of suggesting that it was a response to the appellant’s threatening phone calls from jail.

[59] After the Crown’s closing address, defence counsel asked the trial judge to include a statement in his charge to the jury to the effect that there was “absolutely no evidence as to why Halina is or is not here”. The trial judge responded, “There’s evidence she is under subpoena. I am not going to mention it.” The trial judge made no reference to Dobson’s absence in his jury charge.

[60] The trial judge made no error in this regard. There was no evidence before the jury explaining why Dobson was not a witness at the trial. In light of Crown counsel’s suggestion to the appellant in cross-examination, which was vehemently denied, that her absence was due to his threats, it would have been clear to the jury that the Crown was urging that as a possible explanation for her absence. Defence counsel’s suggestion that the Crown might have decided not to call Dobson posited an alternate explanation. The jury would have understood the respective theories of the parties and its acceptance or rejection of the theories rested on findings based on the evidence.

[61] Accordingly, this ground of appeal fails.

Issue 4: The Corbett Application

[62] Before electing to call evidence, the defence brought a Corbett application seeking to exclude the appellant’s criminal record or expunge convictions for offences of violence. The trial judge noted the appellant’s extensive record, which included numerous convictions for violent offences. He ruled that, in light of the sustained attack by the defence on the credibility of Crown witnesses which was designed to establish their bad character, fairness to the jury required disclosure of the appellant’s criminal record. Convictions for violent offences prior to 1993 were expunged on the basis that remoteness in time minimized their probative value when assessing the appellant’s credibility.

[63] As a result of the ruling, six convictions for assault and assault causing bodily harm, entered between 1994 and 1999, were disclosed to the jury. Nine such convictions, entered between 1983 and 1992, were expunged.

[64] The trial judge charged the jury as to the use of the record, making it clear that it was limited to judging the appellant’s credibility and could not be used to show that the appellant was a person likely to have committed the offence.

[65] The appellant contends that the trial judge “over-compensated” and “skewed the balance” against the appellant in permitting so many assault convictions to go before the jury.

[66] I disagree. The trial judge made no error in the exercise of his discretion in this regard. In the circumstances, excluding the record or expunging further convictions for violent offences would have left the jury with a distorted and inaccurate picture of the appellant. R. v. Bricker (1994), 90 C.C.C. (3d) 268 (Ont. C.A.).

[67] This ground of appeal fails.

Sentence Appeal

[68] The appellant appeals against sentence on the basis that it is severe, outside the range, and represents a significant increase from his previous sentences.

[69] At the time of the sentence hearing, the appellant was 36 years of age. He came from an alcoholic, abusive background and was addicted to cocaine. He had a lengthy criminal record consisting of forty-eight previous convictions dating back to 1982. The offences escalated in seriousness and severity.

[70] The Crown sought a maximum sentence of fourteen years in addition to the thirteen months and four days of pre-trial custody. The defence submitted that three years was an appropriate sentence.

[71] The sentencing judge fully considered the circumstances of the offence and of the offender and applied the relevant legal principles. He was fully justified in concluding that:

There is little realistic hope of rehabilitation for Mr. Munro. He has become a dangerous antisocial person. In my view the protection of society in this case is the paramount consideration for this court in rendering a just sentence.

[72] The serious nature of the assaults, their occurrence in the bedroom of the complainants’ home where the appellant was a guest, the degree and nature of the injuries suffered by the victims, particularly Guilmette, the appellant’s lengthy criminal history and the fact that he was on parole when the offences were committed, amply justify the sentence as imposed.

Disposition

[73] In the result, I would dismiss the appeal against conviction. I would grant leave to appeal the sentence and dismiss the appeal.

“E.E. Gillese J.A.”

“I agree J.C. MacPherson J.A.”

“I agree Janet Simmons J.A.”

Released: February 20, 2003