Her Majesty the Queen v. Latoski [Indexed as: R. v. Latoski]

77 O.R. (3d) 505

[2005] O.J. No. 3565

Docket: C36413

Court of Appeal for Ontario,

Laskin, Blair and Lang JJ.A.

August 26, 2005

Criminal law -- Attempted murder -- Mens rea -- Trial judge erring in instructing jury that mens rea for attempted murder includes intent to [page506] cause bodily harm and recklessness as to whether death ensues -- Mens rea for attempted murder restricted to specific intent to kill -- Conviction for attempted murder set aside and conviction for aggravated assault substituted.

Criminal law -- Murder -- Recklessness -- At one point in his charge on second prong of mens rea for murder under s. 229(a) (ii) of Criminal Code trial judge telling jury that recklessness is found in attitude of one who is aware of danger of death and persists despite risk -- Foresight of danger of death not sufficient -- Accused must foresee likelihood of death flowing from bodily harm that he is inflicting on victim -- Trial judge correctly reciting mens rea for murder six times in his charge -- Jury would not have been misled by reference to danger -- Criminal Code, R.S.C. 1985, c. C-46, s.229(a)(ii).

Criminal law -- Sentence -- Murder -- Accused with very lengthy and violent criminal record sentenced to life imprisonment without eligibility for parole for 25 years for second degree murder -- Sentence affirmed on appeal.

Criminal law -- Trial -- Charge to jury -- Post-offence conduct -- Trial judge instructing jury that it could take into account accused's conduct in throwing away knife and leaving scene of stabbing when police arrived in determining whether he was aware that he had committed culpable act and whether he acted in self-defence -- Trial judge not telling jury accused's innocent explanation for his conduct -- Charge not occasioning miscarriage of justice in circumstances.

The accused stabbed first one man and then another outside a tavern. The second stabbing, which was fatal, was witnessed by two people. When the police arrived, the accused put his knife in a flower pot and walked away. The accused was found guilty by a jury of second degree murder and attempted murder. The trial judge sentenced him to life imprisonment without eligibility for parole for 25 years for second degree murder and to 25 years' imprisonment, concurrent, for attempted murder. The accused appealed the convictions and the sentence.

Held, the conviction appeal should be allowed in part; the sentence appeal should be allowed.

The trial judge erroneously told the jury that the mens rea for attempted murder is the same as the mens rea for murder -- that is, that the person must mean to cause the victim's death or must mean to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not. The mens rea for attempted murder is only the specific intent to kill. The conviction for attempted murder was set aside and a conviction for aggravated assault was substituted.

In reviewing the second prong of the mens rea for murder under s. 229(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, the trial judge instructed the jury that " ... recklessness is found in the attitude of one who is aware that there is danger, that his conduct could bring about certain results, and persists despite the risk". Looked at in isolation, this direction was wrong. It is not sufficient that the accused simply foresee a danger of death; he must foresee a likelihood of death flowing from the bodily harm that he is occasioning to the victim. However, the trial judge correctly recited the mens rea for murder six times in his charge. Heard in context, the jury would have taken the judge's reference to "danger" to mean simply the danger or risk that the accused's actions would cause bodily harm that the accused knew was likely to cause death. [page507]

The jury asked for the definition of the Criminal Code offences in writing. The trial judge responded by reading out the relevant sections of the Code and giving copies of those sections to the jury. The trial judge did not err in failing to explain the various elements of the offences and in failing to recharge on the defences of provocation and self-defence.

The trial judge instructed the jury that it could take into account the accused's conduct after the stabbing when he encountered the police in determining whether he was aware that he had committed a culpable act and whether he acted in self- defence. While he did not tell the jury the accused's innocent explanation for his conduct, his failure to do so did not cause a miscarriage of justice. The accused's post-offence conduct was not an important element of the Crown's case. Moreover, the accused offered no convincing explanation for the most incriminating aspect of his conduct, his throwing away the knife. Finally, the defence did not object to this part of the charge.

The 55-year-old accused was an incorrigible criminal with a lengthy and violent criminal record dating back to 1963. He had violated parole conditions each time he had been released on parole in the past. He was not remorseful and made no effort to rehabilitate himself. The parole authorities considered that if released he was likely to commit another violent offence. The offences in this case were unprovoked and apparently motiveless. The 25-year parole ineligibility period for second degree murder was not unreasonable. The accused was sentenced to 15 years concurrent for aggravated assault.

APPEAL from the conviction entered by Thomson J. of the Superior Court of Justice, dated June 20, 2000, for second degree murder and attempted murder and from sentence.

Cases referred to

Browne v. Dunn (1893), 6 R. 67 (H.L.); R. v. Ancio, [1984] 1 S.C.R. 225, 2 O.A.C. 124, 6 D.L.R. (4th) 577, 52 N.R. 161, 10 C.C.C. (3d) 385, 39 C.R. (3d) 1; R. v. Cooper, [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, 103 Nfld. & P.E.I.R. 209, 146 N.R. 367, 326 A.P.R. 209, 78 C.C.C. (3d) 289, 18 C.R. (4th) 1; R. v. Corbett, [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, 28 B.C.L.R. (2d) 145, 85 N.R. 81, [1988] 4 W.W.R. 481, 34 C.R.R. 54, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1; R. v. Czibulka, [2004] O.J. No. 3723, 190 O.A.C. 1, 189 C.C.C. (3d) 199, 24 C.R. (6th) 152 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502]; R. v. Edelenbos (2004), 71 O.R. (3d) 698, [2004] O.J. No. 2810, 187 C.C.C. (3d) 465, 23 C.R. (6th) 350 (C.A.), supp. reasons [2004] O.J. No. 5141, 191 C.C.C. (3d) 575 (C.A.); R. v. Kwoba, [1998] O.J. No. 81 (C.A.); R. v. P. (G.F.) (1994), 18 O.R. (3d) 1, [1994] O.J. No. 586, 89 C.C.C. (3d) 176, 29 C.R. (4th) 315 (C.A.); R. v. Underwood, [1998] 1 S.C.R. 77, [1997] S.C.J. No. 107, 67 Alta. L.R. (3d) 81, 155 D.L.R. (4th) 13, 221 N.R. 161, [1999] 4 W.W.R. 326, 48 C.R.R. (2d) 205, 121 C.C.C. (3d) 117, 12 C.R. (5th) 241

Statutes referred to

Canada Evidence Act, R.S.C. 1985, c. C-5, s. 12 [as am.] Criminal Code, R.S.C. 1985, c. C-46, ss. 229, 745.4

Leslie Paine, for respondent. Anthony Moustacalis, for appellant.

The judgment of the court was delivered by [page508]

LASKIN J.A.:--

A. Introduction

[1] Malcolm Latoski stabbed one person to death and seriously wounded another in an alley outside a tavern in Windsor, Ontario. He was charged with second degree murder and attempted murder, and was tried before Thomson J. and a jury. The jury found him guilty of both charges. The trial judge sentenced him to life imprisonment with no eligibility for parole for 25 years on the murder conviction, and 25 years imprisonment to be served concurrently on the attempted murder conviction.

[2] Mr. Latoski appeals both his convictions and his sentence. He raises numerous grounds of appeal against conviction, which he has grouped into four areas: the trial judge misdirected the jury on the mens rea for attempted murder; the trial judge misdirected the jury on the meaning of recklessness in the second prong of the mens rea for murder; the trial judge failed to answer a question from the jury properly; and the trial judge committed several errors in his conduct of the trial and in his charge, which cumulatively had the effect of unfairly denigrating the defence. On his sentence appeal, the appellant submits that imposing the maximum parole ineligibility period was excessive.

B. Background Facts

[3] The two victims, the deceased Bill Dodd and Clarence "Bobby" Boutilier, were "regulars" at a Windsor tavern, known as the Spotted Dog. On the evening of May 16, 1999, they were in the tavern playing cribbage and celebrating Dodd's 29th birthday. The appellant was also in the tavern that evening. He approached Dodd and Boutilier and made a racist comment. Boutilier took exception to the comment and told the appellant to stop bothering them. This rebuff, apparently, was the appellant's motive for his later attack.

[4] When Dodd and Boutilier left the Spotted Dog they were both drunk. They went out by a back door, which led to an alley. They were no more than a few steps beyond the door when the appellant came up to Boutilier and stabbed him in the shoulder with a knife. Boutilier kicked at the appellant, who then stabbed him a second time.

[5] The bartender then came out into the alley. She realized that Dodd had forgotten his sunglasses and went to look for him. She saw Boutilier holding his bleeding chest. He pointed at the appellant and said "he stabbed me".

[6] The bartender went back inside the tavern to telephone 9-1-1. She asked two other patrons in the bar -- Tom Savage and Detlef Kelbert -- to get Boutilier inside, but he refused to go. [page509]

[7] Kelbert and Savage remained outside. Dodd walked toward the appellant but stayed about five feet away, with the palms of his hands up. The appellant, who was a much bigger man, had his back to the wall. He repeatedly stabbed Dodd in the chest. Savage, Kelbert and Boutilier all saw the stabbing. After Dodd staggered and fell down, the appellant hurried off up the alley.

[8] The police arrived quickly. When the appellant saw a police cruiser he put his knife in a flower pot. The police searched the area and retrieved the knife.

[9] The appellant claimed that Boutilier and Dodd tried to rob him at knifepoint, and that he fended them off with his own pocket knife. He said that he stabbed at Boutilier and then Dodd because he feared for his own safety and wanted to prevent them from stabbing him. Neither of the two witnesses to the altercation -- Kelbert and Savage -- saw a knife in either Boutilier's or Dodd's hands. In their admittedly cursory search of the area the police found only one knife, the appellant's.

[10] The medical evidence disclosed that Dodd had seven stab wounds to his chest and various defensive wounds to his left arm and hand. He died from shock and the hemorrhaging caused by these wounds.

C. The Conviction Appeal

I. The trial judge's instruction on the mens rea for attempted murder

[11] The trial judge told the jury that the mens rea for attempted murder is the same as the mens rea for murder -- that is, the person must mean to cause the victim's death (s. 229(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46) or must mean to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not (s. 229(a)(ii) of the Criminal Code). The Crown acknowledged that this instruction is contrary to the Supreme Court of Canada's decision in R. v. Ancio, [1984] 1 S.C.R. 225, 10 C.C.C. (3d) 385. In that case the Supreme Court held that the mens rea for attempted murder is only the specific intent to kill and does not include the "lesser" intent in s. 229(a)(ii) of the Code. Although the trial Crown brought Ancio to the trial judge's attention, he failed to re-charge the jury.

[12] The prejudice to the appellant flowing from the trial judge's erroneous instruction is that it permitted the jury to find the appellant guilty of attempted murder when he had something less than the specific intent to cause death. For that reason, the conviction for the attempted murder of Boutilier cannot stand. [page510]

[13] However, counsel for the appellant fairly concedes that the trial judge's instruction would sustain a conviction for the included offence of aggravated assault. The trial judge's charge on the elements of aggravated assault was correct. At trial, the defence conceded that Boutilier was wounded and that his life was endangered. If the jury found the appellant guilty of attempted murder on the basis of an intent to cause bodily harm that would likely cause death, then the jury necessarily would also have convicted the appellant of aggravated assault. Accordingly, I would set aside the conviction for attempted murder and substitute a conviction for aggravated assault.

II. The trial judge's instruction on recklessness

[14] The appellant submits that in reviewing the second prong of the mens rea for murder under s. 229(a)(ii) of the Criminal Code, the trial judge misdirected the jury on the recklessness component. The trial judge told the jury that:

Recklessness is the attitude and conduct of one who sees the risk and takes the chance. In other words, recklessness is found in the attitude of one who is aware that there is danger, that his conduct could bring about certain results, and persists despite the risk.

[15] The appellant contends that this instruction diluted the intent required to meet the mens rea for murder under s. 229(a) (ii). He says that by using the phrase: ". . . danger, that is his conduct could bring about certain results" the trial judge invited the jury to convict on a lower standard -- knowledge of possible consequences -- than the standard required by the statute -- likely consequences. The appellant contends that the trial judge's formulation prejudiced his defence. He points out that in defence of the charges he relied on provocation and self-defence. He testified that he did not realize the knife swings he used to fend off his attackers had connected. He submits that the jury may have convicted on the trial judge's formulation but may have found a reasonable doubt on a proper formulation.

[16] Looked at in isolation, the trial judge's direction on recklessness appears to be wrong. In R. v. Czibulka, [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), at paras. 66-68, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502, Rosenberg J.A. affirmed what the Supreme Court of Canada had said over a decade earlier in R. v. Cooper, [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, 78 C.C.C. (3d) 289, at p. 155 S.C.R., p. 295 C.C.C.: "[I]t is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim." [page511]

[17] However, the trial judge's direction on recklessness has to be assessed in the context of his entire instructions on the mens rea for murder. As the Crown points out in her factum the trial judge correctly recited the mens rea for murder six times. Each time the trial judge told the jury that to convict on this second prong it must be satisfied beyond a reasonable doubt that the appellant intended to cause bodily harm he knew was likely to cause death and was reckless whether death ensued or not. His third and fourth recitals bracketed the impugned passage on recklessness. Thus that entire portion of the charge read as follows:

The first branch of that intent, that is, an intention to kill is given its plain meaning and is readily understood. The second branch requires that the accused intended to cause bodily harm of such grave nature that he knew his actions were likely to result in the victim's death or the wound to Boutilier. The accused must one, foresee that his intentional causing of bodily harm was likely to cause death, and two, deliberately disregard the fatal consequences, that is, he must be reckless whether death ensues or not.

Recklessness is the attitude and conduct of one who sees the risk and takes the chance. In other words, recklessness is found in the attitude of one who [is] aware that there is danger, that his conduct could bring about certain results, and persists despite the risk. You will consider whether you have been satisfied beyond a reasonable doubt that when the accused inflicted the fatal wound, he intended firstly, to kill Dodd and wound Clarence Boutilier or secondly, to cause them bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.

(Emphasis added)

[18] As the underlined parts show, the trial judge properly focused the jury's consideration on likely consequences. Heard in context, the jury would have taken the judge's reference to "danger" to mean simply the danger or risk that the appellant's actions would cause bodily harm that the appellant knew was likely to cause death. Defence counsel likely understood it the same way for he did not object to this part of the charge: see R. v. Edelenbos (2004), 71 O.R. (3d) 698, [2004] O.J. No. 2810, 187 C.C.C. (3d) 465 (C.A.). Accordingly, I would not give effect to this ground of appeal.

III. The jury's question

[19] The jury asked two questions. The second question was a request for the definition of the Criminal Code offences in issue, in writing.

THE COURT: Thank you. Ladies and gentlemen, I've got a note here which says, "Request for definitions of criminal offence of murder in the second degree, manslaughter, aggravated assault, etc. in writing. Possible copies. Please reply juror number six." Do you want attempt murder and attempt as well?

JUROR: Possibly. . . [page512]

[20] The trial judge responded to the request by reading out the relevant sections of the Criminal Code and giving copies of these sections to the jury. Neither the Crown nor the defence asked him to do anything more.

[21] On appeal, however, the appellant argues that the trial judge should have explained the various elements of these offences as he did in his main charge, and should also have re- charged on the defences of provocation and self-defence. The appellant says that his failure to do so amounts to a reversible error. I disagree.

[22] First, the trial judge gave the jury what it asked for. The jury did not express any concern that it wanted anything more. Moreover, when he had complied with its request, the trial judge specifically asked the jury "does that cover your request"? The jury obviously signalled that it did because the trial judge then said "all right".

[23] Second, the copies of the sections of the Code given to the jury were not annotated. And the trial judge twice told the jury -- once at the beginning of his charge and once at the end -- that they were required to take the law from him. Thus I see no real risk that the jurors would have put their own interpretation on the elements of the offences. I would not give effect to this ground of appeal.

IV. Alleged errors denigrating the defence

[24] The appellant submits that the trial judge erred in six ways in his conduct of the trial and his charge and that, taken together, these errors denigrated the defence and resulted in an unfair trial. We called on the Crown only on the first two alleged errors.

1. The trial judge's charge on the appellant's post- offence conduct

[25] The trial judge instructed the jury that it could take into account the appellant's conduct after the stabbing when he encountered the police, in determining whether he was aware he had committed a culpable act and whether he acted in self- defence. The appellant acknowledges that the trial judge was entitled to instruct the jury on the appellant's post-offence conduct but submits that he did not do so fairly because he did not tell the jury the appellant's innocent explanation for his conduct.

[26] I agree that the trial judge's review of the appellant's position was not as thorough as it should have been. But I am also of the view that his charge on the appellant's post-offence conduct did not cause a miscarriage of justice.

[27] The appellant's conduct after the stabbing was as follows. As the police arrived on the scene, the appellant threw his knife in [page513] a flower pot. One of the officers testified that the appellant walked past him "calm, cool and collected". The officer told the appellant to stop. But the appellant kept walking, went around the corner, and stopped only after the officer drew his gun and repeated his command. Another officer retrieved the knife from the flower pot.

[28] The Crown argued that the jury could use this evidence to support an inference the appellant did not act in self- defence: a man claiming to be the victim would be expected to run to the police, not to try to avoid them and hide his weapon.

[29] The appellant, on the other hand, denied fleeing the police. He claimed that he was glad to see the police cruiser, and walked right up to it. He testified that although he threw the knife in the flower pot because he did not want the police to see him walking down the street with it, he deliberately put it in a place where it would easily be found.

[30] The trial judge reviewed the Crown's position in detail. By contrast, he dealt with the appellant's explanation for his conduct summarily, telling the jury only that the appellant's position was "that he felt the whole thing would be cleared up shortly". The trial judge compounded his inadequate review of the appellant's position by telling the jury that the appellant did not say anything to the police officer when he had an opportunity to do so. This was perhaps unfair. The appellant's position was that he did give an explanation to the officer but the trial judge refused to let him give this explanation in the witness box on the ground that it would be self-serving.

[31] Although I consider the trial judge's charge on the appellant's post-offence conduct to have been inadequate, I do not think that it caused a miscarriage of justice for at least four reasons. First, the appellant's post-offence conduct was not an important element of the Crown's case. The Crown's case turned primarily on the evidence of Boutilier and the two independent witnesses, Savage and Kelbert.

[32] Second, the appellant offered no convincing explanation for the most incriminating aspect of his conduct, his throwing away the knife. Third, the appellant never claimed that he acted in panic, so the jury was unlikely to have misinterpreted his conduct. Finally, the defence did not object to this part of the charge. I would therefore not give effect to the appellant's submission on the charge on post-offence conduct.

2. The trial judge's comment on the failure to call Mr. Zanatta

[33] The appellant testified that before the stabbing in the alley and for much of the evening he sat in the tavern with Mr. Matt Zanatta. [page514] The appellant denied approaching Boutilier and making racist remarks; instead he claimed Boutilier approached Zanatta and said something rude to him. Although he could not recall the specific remark, the appellant said that he was sufficiently concerned about it to walk Zanatta out of the bar. Boutilier denied making any such remark. Neither side called Matt Zanatta as a witness at the trial.

[34] Twice in his charge the trial judge said that Zanatta was not called as a witness. The appellant contends that the trial judge's two comments invited the jury to draw the adverse inference that Zanatta's evidence would not have helped the defence and that therefore the appellant's version of what occurred in the tavern was not truthful. I do not accept the appellant's contention.

[35] In my view, the trial judge's two comments did not prejudice the defence. He first said that Zanatta was not called as a witness during his review of the bartender Margaret Stanley's evidence.

Marg Stanley was there. She had seen the accused earlier in the week when he bought drinks for some people and paid with a hundred dollar bill. She did not see any objectionable interaction between Latoski, Billie or Bobby. Latoski approached them but she did not hear any of the discussion. She knew Matt Zanatta but did not recall him being there that evening. It is important for you to remember that Matt Zanatta was never called as a witness in this trial.

[36] He said it a second time during his review of the appellant's evidence.

Latoski also denied he made any racist remarks to either Bobby or Tom Savage. You might well find it strange that Bobby recounted certain words attributable to Latoski. Some time later in a totally unrelated scenario, Savage said Latoski used much the same words. Again, for you to decide. He denied he was a general and said that was just a story. He said he had been carrying a knife since he was a little boy. He said he was concerned about Matt Zanatta and the interaction between Matt Zanatta and Bobby. We never heard from Matt Zanatta.

[37] Both references were neutral and, in my view, harmless. In neither instance did the trial judge say that the defence should have called Zanatta. And in neither instance did the trial judge tell the jury that it could or should draw an adverse inference from the defence's failure to call Zanatta. Moreover, although in his closing the Crown referred to the appellant's story about Zanatta, the Crown did not comment on the appellant's failure to call Zanatta and indeed had not tried to cross-examine him on his not doing so.

[38] I expect as well that even had the trial judge said nothing about Zanatta, the jury's common sense would have led it to conclude that Zanatta's evidence could not have helped the defence. Matt Zanatta was 80 years old and a "regular" at the tavern. Both the bartender and the owner described him as a "pet" and [page515] said that other "regulars" were protective of him. This made it highly unlikely that regulars such as Boutilier would make the remark the appellant attributed to him.

[39] Accordingly, I would not give effect to the appellant's argument on the trial judge's comments about Matt Zanatta.

3. The Browne v. Dunn issue

[40] The trial judge twice applied the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) to prevent the appellant from eliciting certain evidence in his defence because that evidence had not been put to Crown witnesses. We were not persuaded that the trial judge erred in applying Browne v. Dunn. But, equally important, neither application of the rule prejudiced the appellant.

[41] In the first instance, counsel was content not to pursue his line of questioning, or to discuss the matter in the absence of the jury, or to ask that the Crown witness (Boutilier) be recalled. In the second instance, the evidence that the trial judge sought to preclude came out anyway. Thus, the trial judge's application of Browne v. Dunn had no evidentiary impact.

4. The Corbett ruling

[42] The appellant brought a Corbett application to edit his lengthy criminal record: see R. v. Corbett, [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, 41 C.C.C. (3d) 385. The trial judge dealt with the application at the close of the Crown's case and dismissed it. On appeal, the appellant argued that the trial judge should have decided the application earlier in the trial and that he should at least have edited out the appellant's conviction for robbery in the United States. We saw no merit in either argument.

[43] The trial judge did not err in declining to rule on the Corbett application before the close of the Crown's case. In R. v. P. (G.F.) (1994), 18 O.R. (3d) 1, [1994] O.J. No. 586 (C.A.), at p. 6 O.R., this court held that in most cases a Corbett application should not be dealt with until the Crown's case has concluded. See also R. v. Underwood, [1998] 1 S.C.R. 77, [1997] S.C.J. No. 107, 121 C.C.C. (3d) 117. Moreover, the trial judge had asked counsel whether he wanted an earlier ruling and defence counsel said no.

[44] The trial judge also did not commit a reviewable error in exercising his discretion not to edit the appellant's record. He gave detailed reasons, in which he canvassed the relevant considerations. His balancing of these considerations reflected no error in principle.

[45] Finally, the trial judge properly charged the jury on the limited use it could make of the appellant's record. [page516]

5. The conduct of the voir dire on the admissibility of the appellant's statements

[46] After a voir dire the trial judge ruled certain statements of the appellant admissible. The appellant complained about several aspects of the trial judge's conduct of the voir dire. We did not find merit in the appellant's complaints. Any errors made by the trial judge were insignificant and did not in any way prejudice the defence.

[47] First, the trial judge ruled that certain utterances made by the appellant to the police officers on the scene were admissible though the appellant had not yet been given his right to counsel. He so ruled because he found that the appellant was not detained when he made the utterances. That finding is likely unsupportable. However, the trial judge's ruling was immaterial because the Crown did not seek to elicit these utterances at trial.

[48] Second, the appellant complained that effectively he was denied his right to counsel because one of the officers at the station would not permit him to use a phone in private unless he told the officer the lawyer whom he intended to call. I think that the officer was justified in insisting that the appellant first provide him with the name of the lawyer he wished to call. But even if the officer was not justified, within a short time two other officers gave the appellant his right to counsel and ample opportunity to exercise it. The appellant chose not to do so because he wanted to hear what the officers had to say and because he did not think that he had done anything wrong. In the words of the trial judge, he had an almost irresistible urge to tell his side of the story.

[49] Third, the appellant testified on the voir dire and then the Crown cross-examined him. The trial judge rejected much of the appellant's evidence. The appellant complained that parts of the Crown's cross-examination were impermissible. He pointed to the Crown's cross-examination on aliases he had used, on parole violations, on whether he was on parole at the time of the incident, and on the details of his criminal record beyond the details permitted under the Canada Evidence Act, R.S.C. 1985, c. C-5. I accept that the cross-examination on the parole violations was improper because under s. 12 of the Canada Evidence Act parole violations are not convictions. I also accept that the cross-examination on the details of the appellant's record probably went further than it should have. However, these transgressions were minor at best. In the light of the appellant's lengthy criminal record, they had little bearing on the trial judge's adverse credibility assessment. [page517]

6. The "exhortation"

[50] The appellant submitted that the trial judge unnecessarily exhorted the jury and by doing so gave the jury the impression this was a simple case and it ought to have no trouble rendering a guilty verdict. We disagreed with this submission.

[51] The jury retired to consider its verdict on June 20, 2001 at 1:35 p.m. It was called back for a brief re-charge and also came back to ask two questions. At 9:50 p.m., the trial judge gave the jurors a mild exhortation. He said:

THE COURT: Ladies and gentlemen, you have been here since early this morning and you have been deliberating about eight and a half hours or so at the present time. It appears you are having some difficulty in reaching a unanimous verdict. Will some more time this evening assist you in arriving at a unanimous verdict?

JUROR: I don't think so.

THE COURT: I'm sorry, you don't think so? All right, it's a yes or no answer. I don't want to hear anything more about it. All right, if that's the case we are going to adjourn for the evening. I understand hotel accommodations have been made for you and staff will be able to accommodate you. Do you think you will be able to arrive at a verdict tomorrow?

JUROR: Yes.

THE COURT: Okay, let me just address you briefly and perhaps refresh you on what we are all doing here. While it is not imperative that you do so, it is obviously desirable that you reach a unanimous verdict. You have sworn to give a true verdict based upon the evidence and that you must do your utmost to achieve that.

I have the discretion to discharge you from giving a verdict where it appears that further deliberations will be futile. However, this power should not be exercised lightly or too quickly. Frequently when juries are given more time to deliberate, they are able to reach an agreement. My objective is not to convince you to change your minds but rather to encourage you to present your own view of the evidence to your fellow jurors to ensure that everyone's opinion has been duly considered.

While you may have already formed an opinion as to the proper verdict, I would ask that you still keep an open mind and carefully consider your colleagues' viewpoints. However, in reconsidering your position I remind you that at the beginning of the trial each of you took an oath to return a true verdict according to the evidence. It is crucial that no one betray that oath. Therefore, your verdict must be based on the evidence alone and you must not allow yourselves to be influenced by any extraneous considerations.

The essence of the jury system is the process of reasoning together by exchanging views and deliberating together. It is [page518] expected that you will pool your views of the evidence and listen carefully to one another. This means that there must be some give and take in the exchange of opinion. I must emphasize that this does not mean you should subordinate your own genuinely held view of the evidence for the sake of reaching a consensus. It is of course desirable that a unanimous verdict be rendered but this may be one of those occasions when you are unable to do so. This will not reflect badly upon you provided that you have made an honest effort to try the case to the best of your abilities.

Therefore, I would ask you tomorrow to try once again to reach a verdict. This is the time to reflect further on the evidence and see if by listening to each other and thinking overnight you can come to an agreement and render a unanimous verdict . . .

[52] In her factum, Crown counsel fairly acknowledged that there was "no pressing need to exhort the jury". These were serious charges; the jury had not been deliberating for a long time; and the jury had not indicated that it was deadlocked.

[53] However, the exhortation was harmless. It amounted to nothing more than encouraging the jury to carry on with its deliberations the next day. The trial judge did not denigrate the defence. He did not suggest that this was a simple or overwhelming Crown case. He did not impose a time limit or a deadline. And he did not introduce extraneous or inappropriate factors into the jury's deliberations. See R. v. Kwoba, [1998] O.J. No. 81 (C.A.).

[54] For these brief reasons I am not persuaded that the trial judge's conduct of the trial or his charge deprived the appellant of a fair trial. I would not give effect to this ground of appeal.

D. The Sentence Appeal

[55] On the appellant's conviction for the murder of Dodd, the trial judge imposed the maximum parole ineligibility period of 25 years. On his conviction for the attempted murder of Boutilier, the trial judge sentenced the appellant to 25 years imprisonment to be served concurrently. As I would set aside the conviction for attempted murder and substitute a conviction for aggravated assault, I would also set aside the 25-year sentence and substitute a sentence of 15 years imprisonment.

[56] The key issue on the sentence appeal is whether a 25- year parole ineligibility period is demonstrably unfit. The appellant says that it is and argues for a period between 18 and 20 years.

[57] In determining whether to increase the parole ineligibility period for second degree murder beyond the mandatory ten years, the sentencing judge must take into account the jury's recommendations, the character of the offender, the nature of the offence and the circumstances surrounding its commission: see s. 745.4 of the Criminal Code. The trial judge took account of [page519] these considerations. Although the maximum period is rarely imposed, I am not persuaded that the trial judge committed a reviewable error in imposing it in this case. I will summarize the evidence that supports the trial judge's disposition.

(a) The jury recommendations

[58] Seven jurors recommended 25 years; one recommended 20 years; two recommended 15 years; and two made no recommendation.

(b) The character of the offender

[59] The appellant is not a youthful offender. He was 54 years old at the time of the offences and 55 at the time of sentencing. He is an incorrigible criminal. His criminal record dates back to 1963. It includes numerous offences of violence: four convictions for robbery, and convictions for assault causing bodily harm, assaulting a police officer and assault with a weapon.

[60] In the past 25 years the appellant has spent less than 180 days in the community. During this 25 years, he was released on parole six times, and each time violated his parole conditions and was returned to custody. Indeed the appellant had been released on parole less than one month before he committed these offences. He breached the conditions of his parole the same day he was released when he failed to report to the British Columbia parole authorities. These parole authorities learned of his whereabouts only when contacted by the Windsor police in connection with the current offences.

[61] The trial judge found no mitigating considerations that would favour any leniency for the appellant. His counsel on appeal could not suggest any either. The appellant has shown no remorse for what he did. He has made no effort to rehabilitate himself while incarcerated or even to acknowledge his two major problems: anger management and substance abuse. The parole authorities consider that if released he is likely to commit yet another offence of violence.

(c) The nature of the offences and the circumstances surrounding their commission

[62] The appellant perpetrated his violent acts on two unsuspecting, unarmed and inebriated persons. He took Boutilier by surprise, stabbing him right after he left the tavern. Dodd, who was killed, was especially vulnerable. Not only was he highly intoxicated, he was much smaller than the appellant. Yet the appellant stabbed him in the chest seven times. These offences were unprovoked and committed with no apparent motive. [page520]

[63] Upholding the maximum parole ineligibility period means that the appellant will be 80 years old when he is eligible to be released. That said, the evidence I have summarized supports the trial judge's sentence. I would not interfere with it.

E. Conclusion

[64] I would set aside the conviction for the attempted murder of Mr. Boutilier and the sentence of 25 years imprisonment and would substitute a conviction for aggravated assault and a sentence for that offence of 15 years imprisonment. I would dismiss both the conviction and sentence appeal in respect of the murder of Mr. Dodd.

Conviction appeal allowed in part; sentence appeal dismissed.