DATE: 2005-12-15

DOCKET: C39603-C39673

COURT OF APPEAL FOR ONTARIO

DOHERTY, SHARPE and LANG JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

TONJAI JALON HARDY and RONALD JOSEPH SPARKS

Appellants

Counsel: Jennifer Gleitman, for the appellant Hardy Peter Copeland, for the appellant Sparks Nadia Thomas, for the respondent

Heard: December 7, 2005

On appeal from the conviction entered by Justice Donnelly, sitting with a jury, of the Superior Court of Justice dated October 17, 2002 and the sentence imposed dated November 6, 2002.

BY THE COURT:

[1] The appellants were convicted by a jury of attempted murder and robbery. Each received a sentence of nine years in addition to being credited with the equivalent of four years pretrial custody. Both appeal conviction. Hardy also seeks leave to appeal his sentence.

[2] The charges arose out of a home invasion robbery during which the 72 year old victim was seriously assaulted and left lying on the floor with his wrists and ankles bound with duct tape. A friend of the victim discovered the victim unconscious and near death about two days later. Doctors managed to save the victim’s life, but he has suffered permanent injuries.

[3] The robbers stole a heavy safe from the victim’s home and also took his 1998 Cadillac. Shortly after the robbery, both appellants were seen on a security videotape dragging a large safe into the apartment complex where Sparks’ girlfriend lived. The next day, they were seen removing the same safe and putting it in the trunk of a car.

[4] Sparks’ girlfriend testified and confirmed that the appellants had arrived at her apartment in the middle of the night with a safe. Sparks was armed with a sawed off shotgun. Later that evening, the appellants and others tried unsuccessfully to open the safe while it was in the girlfriend’s apartment. The next morning they removed it. There was evidence that the safe was brought to the girlfriend’s apartment in the 1998 Cadillac and that Hardy was driving the vehicle. The police found the Cadillac within a few days of the robbery.

[5] The person who had the Cadillac when it was found by the police testified that Hardy gave him the vehicle so that he could take it to a relative in London who operated a “chop shop” where stolen vehicles were taken apart and sold. That witness also testified that Hardy was in possession of a photograph that the other evidence established came from the victim’s home. Finally, that witness testified that Hardy told him that he and an accomplice had committed a break-in on a certain street and stole the safe as well as the Cadillac. The victim lived on the street identified by Hardy.

[6] Both appellants testified. They denied any involvement in the robbery or the attack on the victim. According to them, a man named Wayman Scott gave them the safe and the car in repayment for a $10,000 drug debt that Scott owed to the appellants. According to the appellants’ testimony, when Scott gave them the safe, they had no idea how much money was in it. They eventually managed to open the safe and it contained considerably less than the amount owed to them by Scott.

A: The Aiding and Abetting Instruction

[7] The main ground of appeal advanced on behalf of both appellants arises out of the trial judges jury instruction on liability as an aider and abettor on the charge of attempted murder.

[8] Jury instructions are intended to equip the jury with the information needed to return a true verdict according to the law as applied to the facts as found by the jury. The adequacy of a jury instruction depends on whether it fulfills this function. Jury instructions can only be properly assessed in the context of the evidence adduced and the issues raised in the particular case.

[9] There are two features of this case that bear on the adequacy of the aiding and abetting instruction. First, it was clear beyond any dispute that the victim had been robbed and assaulted in the course of the robbery. The threshold question for this jury was whether either or both of the appellants participated in that robbery. If the Crown failed to prove beyond a reasonable doubt that either of the appellants participated in the robbery, then that appellant could not be convicted on any of the charges. Second, assuming the jury decided beyond a reasonable doubt that the appellants participated in the robbery, there was nothing in the evidence that would permit the jury to distinguish between the appellants’ levels of participation. Nor did the evidence permit the jury to assign responsibility to one or the other of the appellants for any specific act committed during the robbery.

[10] Early in his instructions, the trial judge told the jury that the first issue it had to decide was whether either or both appellants had participated in the robbery of the victim. He reviewed the evidence relevant to that issue at some length. He then turned to the attempted murder charge. After a brief description of the elements of that offence, he said:

By this stage you will have determined the identity issue, that is whether the accused you are considering participated in the robbery.

[11] It is clear from this instruction that the jury were to consider each appellant’s potential liability for attempted murder only if it was satisfied beyond a reasonable doubt that the appellant had participated in the robbery. The same point was graphically made in the “decision tree” that the trial judge gave the jury in respect of each charge. The “decision tree” pertaining to Hardy’s liability for attempted murder listed the following as the first question to be answered:

Did Mr. Hardy participate in the robbery?

[12] The jury was told that a “No” answer necessitated an acquittal whereas a positive answer necessitated a consideration of the further elements of the charge of attempted murder. An identical instruction is found in the “decision tree” applicable to Sparks’ attempt murder charge.

[13] Having made it clear that the appellants could only be convicted of attempted murder if the jury was satisfied that they had participated in the robbery, the trial judge turned to the essential elements of liability on the charge of attempted murder. He outlined the possible modes of participation by which the appellants could be found liable on that charge. The trial judge instructed the jury that an accused could be found liable as an aider or abettor only if that accused knew that the perpetrator of the offence “intends committing the crime”. The trial judge next told the jury that an act of aiding or encouragement “must be active and with the intention of having the crime occur”. These instructions correctly identified the knowledge and intent components of the fault requirement for liability as an aider or abettor.

[14] Counsel for the appellants submit that the trial judge’s references to “the crime” were ambiguous and could have been understood by the jury as referring to the assault, the theft or the robbery rather than the crime of attempt murder.

[15] We disagree. The impugned instruction appears within two pages of the commencement of the trial judge’s instruction on the charge of attempt murder. Considered in that context, we see no reasonable likelihood that the jury would have taken the reference to “the crime” as a reference to something other than attempt murder. This contextual reading of the phrase “the crime” is fortified by the written instructions that were provided to the jury. These instructions, insofar as they related to liability as an aider and abettor, tracked verbatim the oral instructions given to the jury. The written instructions went with the jury during their deliberations. No doubt, if the jury had any uncertainty as to what the trial judge meant by the phrase “the crime”, the jury would have referred to the written instructions. Those instructions are broken down under various headings, one of which is “Attempted Murder”. The aiding and abetting instruction appears under that heading. There is no reasonable prospect that a jury reading the written instructions would take the reference to “the crime” as a reference to a crime other than attempt murder.

[16] Lastly, the submission that the jury could have understood “the crime” as meaning the robbery, theft or assault loses any force when it is recalled that on the instructions given to the jury it would have determined beyond a reasonable doubt that each appellant participated in the robbery before the jury reached the question of potential liability as an aider and abettor. Placed in this context, there can be no doubt but that the jury understood that the trial judge’s reference to the intended crime was a reference to the attempt murder charge.

[17] Counsel next submitted that the same ambiguity found in the aiding and abetting instruction appeared in the direction pertaining to the appellants’ potential culpability on the attempt murder charge as joint perpetrators of that crime. The trial judge told the jury that they could convict both appellants of attempt murder if both actively participated in the commission of the offence with the necessary intent. In the course of the instruction, he said:

It is enough if you find the two persons acted together, each participating in the unlawful activity for the common purpose of achieving that criminal result.

[18] The instruction on liability based on joint commission of the offence was correct in law. For the reasons already developed in respect of the aiding and abetting instruction, there was no potential ambiguity in the phrase “that criminal result” quoted above. Having already found that the appellants were joint participants in the robbery, the jury would have understood that the “criminal result” to which this further inquiry was directed was the crime of attempt murder.

[19] In oral argument, counsel submitted that the trial judge erroneously told the jury that an individual who was liable for a crime as an aider and abettor was “as guilty as the principal offender”.

[20] Canadian criminal law does not distinguish among levels or types of participation in crime for the purpose of determining criminal liability. Section 21 of the Criminal Code makes perpetrators, aiders, abettors and common designers equally liable as parties to a crime. The description of all participants in a crime as equally guilty, assumes that the Crown has proven the essential elements of culpability. Those elements will differ as between perpetrators and aiders and abettors. If, however, the Crown has established the elements of culpability as applied to an aider and abettor, it is accurate to say as this trial judge did, that the aider and abettor is “as guilty as the principal offender”. In the challenged passage, the trial judge was simply making the point that our criminal law draws no distinction between persons whose criminal culpability rests on different modes of participation in the crime.

[21] Counsel next submitted that the trial judge should have told the jury that their application of the aiding and abetting provisions to each appellant could have resulted in different verdicts as between the two appellants.

[22] The trial judge made it clear to the jury that they were required to consider the liability of each appellant separately on each count. He did not, however, expressly tell the jury that if it was satisfied that both appellants had participated in the robbery, it should consider the possibility of different levels of culpability in respect of the charge of attempted murder. For example, the trial judge did not tell the jury that they might conclude that one of the appellants had perpetrated the assault on the victim with the necessary intent and was, therefore, guilty of attempted murder, but that the other appellant had aided and abetted the assault without the intention to murder, thereby rendering that appellant guilty as an aider and abettor of the lesser offence of aggravated assault.

[23] In many cases where the Crown alleges that accused are jointly liable for a crime, it will be essential to instruct the jury in the manner urged by counsel. In this case, however, the instruction urged by counsel could only have misled this jury. As indicated above, once the jury was satisfied beyond a reasonable doubt that both appellants had participated in the robbery, there was nothing in the evidence permitting the jury to distinguish between the levels of participation by the two appellants, or permitting the jury to assign responsibility for any specific act to one appellant as opposed to the other. An instruction to the jury that it could arrive at different verdicts on the attempt murder charge having found beyond a reasonable doubt that both appellants participated in the robbery would, on the evidence adduced in this case, have been an invitation to the jury to speculate and draw distinctions between the appellants that were not available on the evidence.

B: Other Grounds of Appeal

[24] Counsel for the appellants argued that the written material provided to the jury by the trial judge to assist it in following his instructions omitted certain parts of the instructions that were important to the defence. Counsel contend that these omissions rendered the instructions unfair to the appellants.

[25] The trial judge provided written material that tracked in large part oral instructions he gave to the jury on the presumption of innocence, the burden of proof, the meaning of reasonable doubt, and the essential elements of the various offences for which the jury had to consider. The written instructions were repeated verbatim during the trial judge’s oral instructions. Parts of the oral instructions were not, however, reduced to writing by the trial judge.

[26] The jury had copies of the written instructions when listening to the trial judge’s oral instructions. They also took the written instructions into the jury room during their deliberations. The appellants contend that several parts of the oral instructions that could have assisted the appellants were not reduced to writing and were, therefore, not available in written form to the jury during their deliberations.

[27] The appellants referred to several omissions in the written material, however, we see merit only in the complaint that the trial judge did not include his instructions based on R. v. D.W. (1991), 63 C.C.C. (3d) 397 (S.C.C.) in the written material. We agree with counsel for the appellants that where the accused have testified and their defence hinges on their evidence giving rise to a reasonable doubt, the D.W. instruction is a crucial component of the reasonable doubt instruction. If a trial judge decides to provide the jury with written material relating to the burden of proof, he or she should include the D.W. instruction in that material.

[28] We cannot agree, however, that the failure to include the D.W. direction in the written material amounts to reversible error. The trial judge gave an accurate D.W. instruction in his oral instructions. Nothing in the written material detracted from that instruction. While the absence of the D.W. instruction in the written material can properly be described as a shortcoming in that material, there is a big difference between written material that is less than perfect and written material that could mislead the jury or otherwise undermine the fairness of the trial judge’s instructions. The absence of the D.W. direction in this written material had neither effect.

[29] The appellants also submitted that the guilty verdicts on the attempt murder charge were unreasonable. There is no merit to this submission. It was open to a jury to find that the appellants viciously beat the 72 year old victim and left him for dead, alone and tied up on the floor in his home. The mere fact that the victim survived, albeit barely, does not render the inference that the appellants intended to kill him unreasonable.

C: Hardy’s Sentence Appeal

[30] Counsel for Hardy submits that his sentence should be reduced either because, on a proper application of the parity principle, he deserved a lower sentence than Sparks, or because the trial judge improperly treated the absence of remorse as an aggravating factor.

[31] The trial judge did not treat the absence of remorse as an aggravating factor. In the challenged passage he merely made the accurate observation that the absence of remorse dimmed Hardy’s rehabilitative prospects. The trial judge also alluded to the difference in the criminal records of the two appellants and was aware of the argument that Hardy’s criminal record was not as lengthy as Sparks’ criminal record. Hardy’s criminal record was more serious than Sparks’ in one respect in that unlike Sparks, Hardy had a prior conviction for robbery. Having regard to the various aspects of the criminal records of the two appellants, we see no error in principle in the trial judge’s conclusion that the differences in the criminal records did not warrant any differentiation in the sentences to be imposed on the appellants.

[32] We also reject the submission that Hardy’s sentence was manifestly excessive. Hardy’s conviction for attempt murder demonstrates that the jury was satisfied beyond a reasonable doubt that Hardy intended to kill the victim. Given that state of mind, Hardy’s moral culpability is very high. In addition, this was a particularly vicious crime perpetrated against a vulnerable victim. The 13 year sentence was well within the appropriate range.

D: Conclusion

[33] The conviction appeals are dismissed. Hardy is granted leave to appeal sentence and the sentence appeal is dismissed.

RELEASED: “DD DEC 15 2005”

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“S.E. Lang J.A.”