DATE: 20040112

DOCKET: C34426

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – JAMES RYAN CURRIE (Appellant)

BEFORE: DOHERTY, MacPHERSON and SIMMONS JJ.A.

COUNSEL: Christopher Hicks for the appellant

Lucy Ceccetto for the respondent

HEARD: January 7, 2004

On appeal from the conviction entered by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury, dated March 31, 2000, and the sentence imposed by Justice Dambrot dated May 16, 2000.

E N D O R S E M E N T

[1] The appellant appeals his conviction on a charge of second degree murder. The Crown alleged that the appellant and Colin Lake murdered Louis Ambas in the course of a robbery. The murder was a particularly brutal one. Mr. Ambas was stabbed fifty three times. It was the theory of the Crown that Mr. Lake stabbed Mr. Ambas and that the appellant either participated in the actual stabbing or aided and abetted Lake in the commission of the murder.

[1] The appellant did not testify at trial but, through counsel, took the position that he was present when the murder occurred but did not take part in it. It was the appellant’s position that he and Lake had agreed to rob the deceased, but that he had no knowledge that Lake would kill the deceased.

The Grounds of Appeal

A. Did the trial judge err in refusing to prohibit cross‑examination of the appellant on his testimony at Lake’s trial?

[2] Lake was arrested about fourteen months before the appellant and the two were tried separately. The Crown subpoenaed the appellant to testify at Lake’s trial. In the course of his testimony, the Crown was permitted to cross‑examine the appellant as an adverse witness. The appellant testified that he was not at the scene of the crime. The Crown cross‑examined the appellant in some detail concerning many of these specific pieces of evidence relied on by the Crown to incriminate the appellant.

[3] Prior to any evidence being called at the appellant’s trial, his counsel asked the trial judge to rule that if the appellant testified, the Crown would not be permitted to cross‑examine the appellant on his testimony given at Lake’s trial. The defence relied on s. 7 of the Charter and contended that the appellant had been forced to testify and that it would contravene his right against self‑incrimination were he faced with his prior testimony. The defence did not indicate what the appellant’s evidence would be at his own trial if he testified.

[4] The trial judge ruled that if the appellant testified, the Crown could cross‑examine him on his prior testimony only to the extent that such cross‑examination did not contravene s. 13 of the Charter. He refused to order a blanket prohibition against cross‑examination. The trial judge did rule, however, that any attempt to cross‑examine the appellant on any part of his prior evidence would be vetted by him in the absence of the jury before he ruled on whether that particular cross‑examination could proceed.

[5] In oral argument counsel conceded that the trial judge could not, on a motion brought prior to trial, without knowing the substance of the appellant’s evidence, make an order totally foreclosing cross‑examination by the Crown of the appellant on his prior testimony. We agree with that concession and, in our view, it dooms this ground of appeal. The trial judge could do no more than indicate that the Crown’s right to cross‑examine would be determined according to the governing authorities and that given the sensitivity of the issues, he would require a vetting of the evidence before making his ruling. The procedure outlined by the trial judge accorded with established jurisprudence under s. 13 of the Charter and protected the rights of the accused.

The Testimony of Dr. Klassen

[6] Dr. Klassen, a psychiatrist, was called by the defence at trial. He had examined both the appellant and Mr. Lake. He testified that both had a predisposition to violence although Lake’s was much stronger and included a marked sadistic dimension. Lake was one of the most dangerous people Dr. Klassen had ever examined. The defence offered this evidence to support its position that given Lake’s violent disposition and sadistic inclination, it was much more likely that Lake and not Currie had stabbed the deceased and that it was likely that Lake had acted in a violent outburst that was unplanned.

[7] The defence conceded that evidence of Lake’s predisposition to violence opened the door to psychiatric evidence of the appellant’s predisposition to violence. The defence contended, however, that the Crown should not be allowed to ask the psychiatrist about the basis of his opinion as regards the appellant’s predisposition if that basis revealed prior misconduct by the appellant. We reject this submission. The defence opened the door to psychiatric opinion evidence concerning the appellant’s disposition for violence. The jury could only assess that opinion evidence if it was provided with a factual basis for that opinion. Moreover, the defence used the evidence of Dr. Klassen to support the position that Lake was much more inclined to violence than the appellant. The jury was provided with the factual basis for the psychiatrist’s opinion concerning Lake’s disposition for violence. The jury could only engage in the comparative process underlying the defence’s assertion if it also had the basis for the psychiatrist’s opinion concerning the appellant.

[8] We should not be taken as holding that any and all information upon which the psychiatrist relied in forming his opinion with respect to the appellant’s propensity for violence was automatically admissible. Like all evidence it could be excluded if its prejudicial effect exceeded its probative value. The defence at trial did not ask the trial judge to exclude any part of the psychiatrist’s evidence on the basis of its potential prejudicial effect. In his submissions, counsel on appeal did take the court to parts of Klassen’s evidence which he argued were particularly prejudicial. Having reviewed those references we see little or no prejudice to the appellant. Certainly the prejudice is not such as to merit the exclusion of the evidence.

[9] Counsel also argued that the trial judge failed to instruct the jury on the limited use it could make of the evidence concerning the appellant’s prior misconduct. The trial judge told the jury that they could use that evidence only in assessing the basis upon which Dr. Klassen had advanced his opinion concerning the appellant’s propensity for violence. The trial judge also told the jury that they could not use propensity reasoning in determining the appellant’s guilt. In our view, the instruction was full and accurate.

[10] Counsel also submitted that the trial judge failed to instruct the jury that the evidence of Lake’s disposition could be used as circumstantial evidence identifying Lake as the perpetrator of the crime. It was common ground that Lake had stabbed the deceased. The question was whether the appellant was also involved in the stabbing as a perpetrator or abettor. The trial judge made it clear to the jury that the evidence of Lake’s disposition was relevant to the question of whether he acted spontaneously and without the participation of the appellant. Although the trial judge did not review the basis for the psychiatric opinion concerning Lake he did remind the jury that Lake’s predisposition to violence was regarded as much stronger than the appellant’s and included a significant sadistic dimension. We have no doubt that the jury understood the evidence as it related to Lake’s disposition for violence and the purpose for which the evidence was adduced.

The charge on circumstantial evidence

[11] The trial judge’s instruction on circumstantial evidence made it clear that to the extent that the jury relied on circumstantial evidence it could convict, if based on the totality of the evidence, guilt was the “only rational and logical conclusion”. This instruction was a proper application of the burden of proof to inferences drawn from circumstantial evidence.

[12] Counsel contends that the trial judge did not tell the jury “how a reasonable doubt could arise depending upon the inferences it might draw from the evidence”. We cannot agree with this submission. The trial judge told the jury, in the course of outlining the position of the defence, what inferences the defence argued should or should not be drawn from the totality of the evidence. Considered in its entirety the charge made it plain to the jury how a doubt could arise from the entirety of the evidence, and particularly from the forensic evidence.

[13] The appeal is dismissed.

“D. Doherty J.A.”

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”