DATE: 20050513

DOCKET: C40225

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CARLOS CLARKE (Appellant)

BEFORE:

MCMURTRY C.J.O., LASKIN and MACPHERSON JJ.A.

COUNSEL:

P. Andras Schreck

for the appellant

David Finley

for the respondent

HEARD:

May 6, 2005

On appeal from the conviction entered on April 26, 2003 and the sentence imposed on May 15, 2003 by Justice John Cavarzan of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] On April 26, 2003, the appellant was convicted of the second degree murder of his stepson, Maliek Willie, following a 10‑week trial in the Superior Court of Justice in Hamilton before Cavarzan J. and a jury. On May 15, 2003, he was sentenced to life imprisonment without parole eligibility for 20 years. The appellant appeals both his conviction and his sentence.

[2] On his conviction appeal, the appellant alleges several errors in the trial judge’s charge to the jury. In assessing these grounds of appeal, we make three introductory comments. First, we recognize, as the appellant argued, that the case against him rested on the evidence of his opportunity to commit the crime and on his post offence conduct, specifically his three false alibi statements. Second, however, this was a stark either/or case: either the appellant or Willie killed Maliek. The stark nature of this case, and the evidence pointing to and away from each of the potential culprits, would have been obvious to the jury. Third, the trial judge’s charge is not to be assessed against a standard of perfection. As these brief reasons make clear, we are satisfied that the trial judge’s charge was correct in law, and overall adequately conveyed the position of the defence to the jury.

[3] The appellant contends that the trial judge erred by telling the jury that they could find that all three of the appellant’s statements to the police were concocted. He acknowledges that his first statement was concocted and therefore the jury could conclude that he fabricated this statement to divert suspicion from himself. He argues, however, that there is no independent evidence he fabricated his second and third statements, and therefore the jury should not have been instructed that it could infer a consciousness of guilt from these two statements.

[4] We disagree. In our view, the trial judge’s charge on this issue was consistent with the analysis relating to falsity and fabrication by O’Connor A.C.J.O. in R. v. O’Connor (2002), 2002 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.). It would have been artificial for the trial judge to have distinguished the statements in the way contended for by the appellant. Once the appellant gave one fabricated statement, the jury was entitled to consider whether the second and third detailed statements, giving entirely different accounts of the appellant’s whereabouts at the relevant times, amounted to a course of conduct of giving concocted statements to mislead the police and divert suspicion from himself.

[5] The appellant contends that the trial judge erred in his instructions by failing to distinguish between evidence that contradicted the appellant’s alibi and evidence that it was concocted. We disagree. The trial judge recognized, and instructed the jury about, this distinction:

There is a difference in law between evidence leading only to disbelief of an accused’s statements and independent evidence of fabrication. I must tell you that the fact that you disbelieve the alibi is not and cannot be considered as evidence from which you may infer that the accused is guilty. Therefore, you should simply disregard the alibi evidence without more, unless you are convinced beyond a reasonable doubt on the basis of independent extrinsic evidence, which I will review with you in a moment, that the alibi was deliberately concocted or fabricated by the accused to deceive or mislead.

In our view, this instruction was adequate.

[6] The appellant submits that the trial judge erred by failing to instruct the jury about the appellant’s alternate explanation for making a false statement, namely that he was involved in a drug transaction at the relevant time. We disagree. In his review of the defence position, the trial judge instructed: “In his October 22 interview, he indicated that this [his false first statement to the police] was because he was involved in drug related activities over that time.” In the light of the trial judge’s extensive review of the evidence and the nature of the case itself, we are satisfied that the jury would have understood the defence position.

[7] The appellant contends that the trial judge erred by failing to instruct the jury on inferences that could be drawn from Ms. Willie’s false statement that Maliek had been with her brother on the day of his death, specifically that the jury could infer consciousness of guilt from her false statement. We disagree. The nature of the case was an “either/or” case – either the appellant or Ms. Willie killed Maliek. As we have said, the trial judge thoroughly reviewed the evidence and the defence submissions on this issue and instructed the jury to approach Ms. Willie’s evidence “with caution because as you have heard, she is a witness who faces a charge herself and who accordingly, may have some interest in the outcome of these proceedings.” Although the trial judge might have given the instruction requested by the defence, the inferences available from Willie’s false statement would have been obvious to the jury.

[8] The appellant contends that the trial judge erred by restricting the use that could be made of evidence of Maliek’s prior injuries and, specifically, that he told the jury that if they concluded the prior injuries were not inflicted by the appellant, then “the evidence about them should be disregarded.” The appellant argues that the trial judge precluded the jury from considering whether Willie inflicted the prior injuries, and if so whether she was responsible for the fatal injury. We disagree. The trial judge instructed: “If you determine that the prior injuries were intentionally inflicted, then you would have to determine whether the accused inflicted them.” This was an entirely accurate statement. Although the trial judge’s use of the word “disregarded” was unfortunate, given the either/or nature of the case presented by the Crown and the defence, it would have been obvious to the jury that they had to consider the defence position that Ms. Willie caused the prior injuries and the fatal injury to Maliek.

[9] The appellant contends that the 20‑year period of parole ineligibility was excessive and outside the range for similar cases. We disagree. Although, as the Crown acknowledges, 20 years may be at the high end of the range, we are not persuaded that it is excessive. The trial judge’s reasons for sentence are particularly comprehensive and thoughtful. In our view, the heinous nature of the crime and the absence of any mitigating circumstances justify the sentence he imposed.

[10] The conviction appeal is dismissed. Leave to appeal sentence is granted and the appeal from sentence is dismissed.

“”R. Roy McMurtry C.J.O.”

“John Laskin J.A.”

“J. C. MacPherson J.A.”