DATE: 20060515
DOCKET: C42458
COURT OF APPEAL FOR ONTARIO
WEILER, SHARPE and BLAIR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Christopher Hicks for the appellant
(Respondent)
- and -
JACK SHAFFER
C. Jane Arnup for the respondent
(Applicant/Appellant)
Heard: May 10, 2006
On appeal from conviction entered on October 9, 2003 and the sentence imposed on January 15, 2004 by Justice Douglas J. A. Rutherford of the Superior Court of Justice, sitting with a jury.
BY THE COURT:
[1] The appellant was tried by a jury for the offences of attempted murder, possession of a firearm for a purpose dangerous to the public peace, aggravated assault, using a firearm in the commission of the aggravated assault, pointing a firearm and setting a trap or a device likely to cause bodily harm. On October 9, 2003, the jury found the appellant guilty of three counts, namely, aggravated assault, using a firearm in the commission of the aggravated assault and pointing a firearm. The jury found him not guilty on the other three counts. On January 15, 2004, Rutherford J. sentenced the appellant to six years for the aggravated assault, two years consecutive for the use of a firearm in the commission of the aggravated assault and one year concurrent for pointing a firearm.
[2] The appellant appeals against his conviction on the basis of alleged errors in the trial judge’s charge to the jury. The appellant is seeking an order allowing the appeal and ordering a new trial. In the event the conviction appeal is dismissed, the appellant also applies for leave to appeal against his sentence and if leave is granted, appeals against sentence. He seeks an order reducing the sentence as this Honourable Court sees fit.
FACTS
[3] The appellant owned a bush farm property in the forested hill country north of Wilno, Ontario. At the time of the offences, the appellant, now a 49-year-old man, was living on the property in a house, doing bodywork on one or more vehicles and tending to the cultivation of an unspecified number of marijuana plants within a few hundred yards of his house. From the evidence, it appears that the appellant was living at a very modest level, using a lot of marijuana himself on a daily basis. His crop was important to him and in the weeks prior to the date of the incident, it had suffered significant loss due to poachers. The evidence showed some serious attempts by the appellant, with help from his son, to protect his crop, including the use of external video surveillance devices and the placement of trip lines connected to alarms. There was also evidence that a number of fishhooks had been strung in and around some of the plants, but the jury was not satisfied on the evidence that the appellant was responsible for that.
[4] On September 6, 2000, Edward Evenden and an accomplice were engaged in stealing marijuana plants from the appellant when they activated a trip wire. It was the third time in a couple of weeks that Evenden had snuck onto the property to poach the marijuana plants. A short time later, Evenden was shot in the back while running down the path adjoining the marijuana growth. The bullet entered Evenden’s spine, rendering him a permanent paraplegic.
[5] Evenden’s evidence was that he unwittingly set off the trip line, which caused an alarm to ring. He then ran from the farmhouse area into a forested area in order to avoid being seen by the appellant, a long time friend. As he ran, he heard the appellant shout out. Evenden next heard shots being fired and then was hit and fell to the ground. The appellant came upon Evenden and his accomplice a minute or so later and helped to ensure that Evenden was taken to the hospital.
[6] The appellant’s evidence was that his dogs had barked several times that morning and that finally he took his 22-calibre rifle out of the house and, at waist level, fired a number of rounds at random towards a tree and into the bush, from a point not far from his house. The appellant said he saw no one and did not know any person was around, but thought that in firing off those rounds, he would scare the dogs into silence or scare away the animals that may have been stirring them up.
[7] From the point that the appellant said he was shooting, it was likely impossible to see Evenden, let alone hit him with a bullet, due to the trees and rising ground. At a point higher up on the rising ground from which Evenden would have been able to be seen while he was running away, the police found several 22-calibre casings on the ground.
ISSUES
Issue #1: Whether the trial judge erred in his charge to the jury with respect to the burden of proof and approach to fact finding
[8] The appellant submits there were two related errors made in the charge to the jury with respect to how to approach the evidence, both of which had the effect of reversing the burden of proof and convicting the appellant on a standard of proof less than beyond a reasonable doubt.
[9] At the outset of his charge to the jury, the trial judge said to the jury that it was their job to “find out what happened, if possible, if you can determine what happened.” In this respect the judge echoed a comment by the Crown in his closing submissions to the jury. In his submissions to the jury, the Crown outlined the positions of the primary Crown and the Defence witnesses and said, “ Well how are we going to test which story is correct?”
[10] The appellant further submits that, given the conflicting evidence as to the position of the appellant and whether the alarm had sounded before he fired his gun, the jury were being told in effect that they had to choose which version of the evidence to accept. He submits that the jury was not told in clear terms that they need not believe the defence evidence in order to acquit. Further, he submits, the jury was not clearly instructed that if the appellant’s evidence just raised a reasonable doubt in the context of the whole of the evidence, that would be sufficient.
[11] The trial judge should not have told the jury that its job was “to find out what happened”. As the Supreme Court states in R. v. Pittiman, 2006 SCC 9, 2006 S.C.C. 9 at para 8. “The jury’s task is not to reconstruct what happened. Rather, it is to determine whether the Crown has proven each and every element of the offence beyond a reasonable doubt.” However, neither this brief comment at the beginning of the charge nor the Crown’s comment in closing could be said to have had the effect of reversing the burden of proof or misdirecting the jury as to the standard of proof. The trial judge’s clear direction that they were to take the law from him and his correct instructions regarding the burden and onus of proof left the jury with a proper understanding of their task. When the charge is read as a whole, there is no reasonable possibility that the jury could have understood from the instructions that if they disbelieved the appellant they had to convict. The trial judge repeatedly told the jury that if they believed the accused or if they were left in some doubt by the evidence, they must find the appellant not guilty. The jury also had the benefit of appropriate instructions regarding the presumption of innocence, the burden of proof and the fact that a doubt may arise from the absence of evidence. Counsel for the appellant did not object to the instructions on reasonable doubt or the fact-finding process. We do not agree that the trial judge erred in stating that there was a conflict in the evidence. There was a conflict in the evidence regarding what inferences the circumstances supported and about what was in the appellant’s mind when he fired the gun. On the appellant’s version, he was just trying to calm the dogs down and was completely unaware that anyone else was on the property. On Evenden’s evidence, the inference is that the alarm went off inside the house after he tripped it, that the appellant then knew that thieves were on the property and that he deliberately shot towards the intruders. Accordingly, the trial judge was not in error in characterizing the evidence as showing conflicting views of what the appellant knew and what inference might arise from his conduct.
[12] We would dismiss this ground of appeal.
Issue # 2: The effect of the improper reply evidence and the lack of any instruction thereon.
[13] The appellant submits that improper reply evidence called by the Crown may have played a pivotal role in the jury’s deliberations. That evidence is as follows. Without seeking leave, the Crown called reply evidence for the sole purpose of contradicting the appellant’s credibility on the collateral issue of whether the gun was placed in the back of Evenden’s accomplice’s truck. After the appellant testified it was, an officer testified he did not find it when they seized and searched the truck some hours after the incident. Had a timely objection been made, the Crown likely would have been precluded from calling reply evidence. However, there was no objection to this evidence and it was not related to any of the elements of the offence. The evidence was not a direct contradiction of the appellant’s evidence as it is possible that the driver of the truck took the gun out. In the circumstances, we would not give effect to this ground of appeal.
Issue #3: Whether the caution against propensity reasoning was insufficient.
[14] The appellant submits that the trial judge’s caution against propensity reasoning was deficient in three ways. First, it failed to address the prejudice to the appellant arising from the Crown’s closing address as it related to the offence of cultivation, to which the appellant had pleaded guilty in a separate proceeding. Second, the trial judge failed entirely to caution the jury with respect to the general bad character evidence introduced at trial regarding the appellant and his son. Third, the trial judge failed to caution the jury with respect to reasoning by propensity as between counts.
[15] We are not persuaded that there was any error with respect to the reference to the cultivation of marijuana. The entire context of the case revolved around the growing of marijuana and the complainant’s repeated thefts of the same drug. Cultivation of marijuana related to the crown’s theory of a motive for the shooting and did not amount to merely evidence of propensity or bad character. Moreover, following the Crown’s closing address, defence counsel neither objected to the caution nor sought a direction that the jury be told to disregard these remarks. We note that to the extent the impugned aspects of the Crown’s address could have been prejudicial, defence counsel in this case addressed the jury last although the defence called evidence. Further, the trial judge told the jury to disregard any expressions of opinion the jury had heard during counsel’s addresses, to decide the case only on the evidence presented and to exclude prejudice from their decision.
[16] With respect to general bad character and the use of evidence between counts, the trial judge cautioned the jury on two occasions about deciding the case on the basis of sympathy. The trial judge also carefully and fully instructed the jury regarding the limited use they could make of the appellant’s record (including his conviction for cultivating marijuana). He then commented:
So you may find, if you can draw on these criminal histories at all, you may find that the honesty related convictions are more important that ones that relate to just misconduct of one sort or another.
[17] He also told the jury that they should not jump to the illogical conclusion that the appellant had actually committed the crimes with which he was charged because he had done things before and been convicted for it. He added:
Do not fall into that trap. It is only part of the history that you may draw on if you feel it is worth drawing on to assess the evidence the man gives in the witness stand. It is not propensity evidence that, ‘oh well, once a criminal, always a criminal’ or ‘once having committed bad things, more likely that he will do bad things in the future.’
That is, in a sense it is a human nature error that we are inclined sometimes to make. It is a bias type of reasoning. It is prejudging type of reasoning, prejudicial and I caution you strongly not to fall into that trap.
[18] While the charge was perhaps less than ideal in relation to the evidence of general bad conduct, the trial judge’s comments conveyed to the jury the sense that they were not to judge the appellant based on the “bad things” he had done in the past. These comments cautioned the jury more broadly not to engage in propensity reasoning. In addition, the trial judge focussed the jury on the real issue in the case. That issue was where the appellant was standing when he fired the gun and the sight lines.
[19] With respect to the use of evidence as between counts, this was not a case involving separate incidents. Here, all of the evidence was relevant to all counts which arose from one incident and, in the circumstances, we do not agree that the instruction as to propensity reasoning was defective.
Issue #4: Whether the trial judge unfairly denigrated the defence expert evidence.
[20] The defence called Finn Nelson as an expert witness. He gave evidence about the sight lines from where the appellant said he was standing at the time he fired the gun and the sightlines where the cartridge casings were found. The trial judge said, “It was not really opinion evidence within his core expertise but you take into account in considering his evidence the specialized training and experience he has.”
[21] We agree with the Crown that here is no basis in the record to say that the expert’s evidence was “totally undermin[ed]” by the trial judge’s charge. Appellant’s counsel made no objection to the charge to the jury on this basis. The witness himself described his expertise as being in the fields of “firearms and toolmarks” and he was accepted as an expert in those areas. The expert testified about the visibility of a target at two different locations based on his experience in army training. The trial judge properly noted that evidence about line of sight might be seen as outside the witness’ core area of expertise, but he still underlined the witness’ specialized training and experience in the army. In part because of the need to correct the misstatements made by defence counsel about the expert’s evidence, the trial judge reviewed the line of sight evidence given by the expert and by the identification officer very thoroughly. Coupled with the numerous times that the trial judge emphasized the importance of the issue of whether the appellant knew that he was shooting at people, the jury could not have failed to appreciate how the line of sight evidence related to the defence.
[22] The trial judge reviewed the expert’s evidence thoroughly and did not denigrate it.
Issue #5: The sentence appeal.
[23] The trial judge was satisfied that by their findings, the jury must have rejected the appellant’s evidence that he did not knowingly shoot at a human being. The jury was obviously convinced beyond a reasonable doubt that the appellant did see a person/persons running among his marijuana plants, aimed at him/them and fired a number of shots, intending either to hit or at least threaten him/them with the prospect of being shot.
[24] The appellant submits that the trial judge erred in principle by disproportionately focusing on the tragic consequences of the offence and overemphasizing denunciation. This resulted in him imposing a sentence that was excessively long, having regard to the offender and the nature of the offence. The appellant also submits that in this case, while the appellant’s conduct in firing a gun was reprehensible, the fact that he demonstrated his concern for Evenden after discovering him by ensuring that he was taken to the hospital was a significant mitigating factor. Moreover, there was no premeditation and there was no evidence that the appellant was dangerous or incorrigible.
[25] The trial judge does not indicate, nor does the sentence imply, that he mistakenly believed that the appellant was either the worst offender or that this was the worst offence. The trial judge factored into his decision that the appellant said he was remorseful. As for the appellant’s assistance to Evenden after shooting him, this relatively limited help was not a “significantly mitigating” factor. If the appellant were really as devastated by the shooting as he maintained, one might have expected him to override Evenden’s alleged wishes and summon properly trained emergency personnel by calling 911. Instead, he allowed Evenden to be taken to the hospital by his accomplice.
[26] We agree with the Crown that the total sentence of eight years’ imprisonment was appropriate in light of the following circumstances: (1) the appellant kept a loaded semi-automatic rifle by his door, ready to be used to repel thieves; (2) the jury’s verdicts meant that they found that the appellant deliberately shot at a person intending or threatening to apply force; (3) the appellant’s motive must be inferred to have been to protect his illegal marijuana crop; (4) the physical injuries to Evenden have rendered him a permanent paraplegic; (5) the impact on Evenden’s family has been devastating; (6) there is a need to denounce and deter those who are prepared to defend illegal grow operations with firearms; (7) although dated, the appellant has three prior convictions for assault; and (8) the sentence imposed is not out of the wide range of sentences that may be applied in similar cases.
[27] Although leave to appeal sentence is granted the appeal as to sentence is dismissed.
RELEASED: May 15, 2006 (“KMW”)
“Karen M. Weiler J.A.”
“Robert H. Sharpe J.A.”
“R. A. Blair J.A.”