DATE: 20040223

DOCKET: C36630

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – JACK KENNETH CARR (Appellant)

BEFORE: ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL: Leon Sam Colwin For the appellant

Riun Shandler For the respondent

HEARD: February 9, 2004

On appeal from conviction by Justice N. McRae of the Superior Court of Justice, and a jury, dated November 24, 2000 and from sentence imposed on November 24, 2000.

E N D O R S E M E N T

[1] In our view, the conviction for attempted murder in relation to Dimitre Dimitrov cannot stand. The sole issue on that count was the appellant’s intent at the time of the stabbing. In that regard, there was evidence from Ms. Gottwald that when the stabbing occurred, the appellant was very drunk and/or stoned, he was engaged in a struggle with the victim and he was lying on the floor with the victim on top of him.

[2] That body of evidence was relevant to the appellant’s state of mind at the time of the stabbing. If believed, it may have left the jury in a state of reasonable doubt as to whether the appellant, in an intoxicated and highly emotional state, intended to kill the victim.

[1] Unfortunately, the trial judge did not instruct the jury along these lines. Instead, he simply reminded the jury of the defence position that if the appellant had really wanted to kill the victim, he could have done so when the victim was lying helpless on the front lawn of Ms. Gottwald’s residence after the attack.

[2] With respect, that instruction was insufficient in the circumstances. It failed to adequately convey the appellant’s defence of “lack of intent” to the jury.

[3] Accordingly, we would allow the appeal, set aside the conviction for attempted murder and order a new trial on that count, as well as the counts charging the appellant with aggravated assault and assault with a weapon in relation to Mr. Dimitrov. The trial judge entered a conditional stay in respect of the latter two counts following the appellant’s conviction for attempted murder. The Crown is entitled to have the appellant retried on all three counts.

[4] In addition to being convicted of attempted murder in relation to Mr. Dimitrov, the appellant was also convicted of aggravated assault in relation to Ms. Gottwald. The two incidents were closely related and the trial judge imposed an eight-year sentence on the aggravated assault charge to be served concurrently with the eight-year sentence he imposed on the charge of attempted murder.

[5] Although the appellant appealed from his conviction on the aggravated assault charge relating to Ms. Gottwald, he did not pursue the matter in oral argument and his appeal from that charge is accordingly dismissed.[^1]

[6] Standing alone, the sentence for aggravated assault on Ms. Gottwald, which was incidental to the attack on Mr. Dimitrov, was excessive.

[7] The parties agree that the eight-year sentence imposed on that charge should be reduced to four years. We accept their joint submission.

[8] Accordingly, in respect of the charge of aggravated assault against Ms. Gottwald, leave to appeal sentence is granted, the appeal is allowed and the sentence of eight years is reduced to four years. The sentence imposed by the trial judge on an unrelated charge of assault involving Ms. Gottwald (count 6) has not been appealed and it remains the same (six months consecutive).

Signed: “M. Rosenberg J.A.” “M.J. Moldaver J.A.” “J. Simmons J.A.”

[^1]: We note that in his Notice of Appeal, the appellant appealed from the following convictions: (1) attempted murder; (2) aggravated assault; (3) assault with a weapon; and (4) break and enter. To the extent that the first three convictions relate to Mr. Dimitrov, the conviction for attempted murder is quashed and the conditional stays on the charges of aggravated assault and assault with a weapon are set aside and a new trial is ordered in relation to the three offences. If, however, the aggravated assault charge and assault with a weapon charge refer to Ms. Gottwald, the conviction for aggravated assault stands, as does the conditional stay entered on the charge of assault with a weapon. As for the break and enter conviction, we know of no such conviction. Accordingly the appeal from that conviction is quashed.