CITATION: R. v. Chandrakumar, 2007 ONCA 798
DATE: 20071122
DOCKET: C43883
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., MacPHERSON and CRONK JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
SIVENTHIRAN CHANDRAKUMAR
Appellant
James Lockyer, for the appellant
David Lepofsky, for the respondent
Heard: September 4, 2007
On appeal from the convictions entered by Justice Brian Trafford of the Superior Court of Justice, sitting with a jury, on March 30, 2005 and the sentences imposed by Justice Trafford on May 5, 2005.
CRONK J.A.:
I. Overview
[1] The appellant was convicted of various assault and firearms-related offences by the verdicts of a jury at a trial presided over by Trafford J. of the Superior Court of Justice. The offences arose out of a robbery and shooting incident at an auto repair shop. The appellant was sentenced to seven years imprisonment on one count each of the use of a firearm in a robbery and discharging a firearm with intent to wound. His convictions on the remaining charges were stayed in accordance with R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant appeals his convictions and sentence.
[2] In support of his conviction appeal, the appellant mounts a twofold attack on the trial judge’s jury charge. He argues that the trial judge misdirected the jury on the permissible uses of the evidence of certain out-of-court statements made to the police by the victim of the shooting and the victim’s brother. He also submits that the trial judge’s review for the jury of the evidence of what the appellant told the police on arrest was fatally deficient. In respect of his sentence appeal, the appellant maintains that his sentence of seven years imprisonment is unreasonable and that the trial judge failed to consider his rehabilitative prospects and overemphasized certain other sentencing factors. For the reasons that follow, I would dismiss both the appeal against conviction and the sentence appeal.
II. Facts
(1) The Shooting
[3] On December 19, 2003, the appellant went to a Scarborough auto repair shop to sell Shawn Ganeshram, an auto technician, a stolen television and Playstation. The appellant asked for $400 but accepted $200 from Shawn in payment. Later that evening, the appellant complained to Shawn that Shawn had paid too little for the goods and that he had paid with counterfeit money. They agreed to meet at the repair shop the following day to settle the dispute. The appellant returned to the repair shop on December 20, accompanied by two men. An altercation with Shawn ensued, during which the appellant obtained another $120 from Shawn, the appellant punched Shawn in the face, and Shawn was shot in the leg by one of the three men. Because Shawn had his back to the trio when the shooting occurred, he did not see who shot him. Although Shawn’s brother, David (Dave) Ganeshram, was in the repair shop at the time, he did not witness the shooting. He came to his brother’s aid only after he heard a gun shot.
(2) The Out-of-Court Statements
[4] Both Shawn and Dave made several statements to the police following the shooting.
[5] According to police witnesses, when Shawn was taken to the hospital shortly after the shooting, he said that the appellant’s two companions had been carrying shotguns but that the appellant did not have a gun. He claimed that one of the appellant’s companions was the shooter. He made no suggestion that he saw the appellant with a gun at any point at the repair shop (Shawn’s Original Statement).
[6] About three weeks later, Shawn identified the appellant as the shooter in a police photo line-up. On this occasion, Shawn stated that the appellant grabbed a gun from one of his companions and used it to shoot him. Subsequently, following the appellant’s arrest, Shawn provided the police with a description of the shooter that matched the appearance of the appellant.
[7] Dave Ganeshram called 9-1-1 after the shooting. In that call, he said that he saw only one man with a gun. His description of the man with the gun did not match the appellant’s features. Later that same night, Dave provided a videotaped statement to the police in which he said that he did not see the appellant or anyone else with a gun at the repair shop. He also stated that he believed that the appellant was the person “wrestling” with his brother, and suggested that, “Maybe he’s the one who pulled the trigger too” (collectively, Dave’s Original Statements).
[8] Dave visited his brother at the hospital on the day after the shooting. He then provided another statement to the police in which he initially claimed that the appellant had a gun at the repair shop and that his two companions also had guns. Eventually, Dave said that only the appellant was in possession of a gun and that he had observed the appellant “racking” or “pumping” the gun to reload it after his brother was wounded.
[9] About one month later, the appellant was arrested and charged with several assault and firearms-related offences. At the time of his arrest, he admitted punching Shawn at the repair shop, but claimed that one of his companions – a man named “Ram” – was the person who shot Shawn.
(3) The Trial
[10] The central issue at trial was the identity of the shooter. The Crown maintained that the appellant was either the shooter or a party to the shooting. The defence asserted that the appellant had no idea his associates had brought guns, that “Ram” was the shooter, and that the Ganeshram brothers had colluded to implicate the appellant.
[11] The Crown called Shawn and Dave as witnesses. Both men implicated the appellant as the shooter. Shawn said that although he did not see the man who shot him, the appellant and one of his associates each had a gun prior to the shooting. Although the appellant had given his gun to his second companion, after he was shot Shawn noticed the appellant holding a gun and “racking it”, i.e., preparing to reload it. Dave testified that when he came to his brother’s assistance immediately after the shooting, he saw the appellant trying to do something with a sawed-off shotgun. According to Dave, while Shawn lay wounded on the ground, Dave asked his brother who had shot him and Shawn pointed to the appellant.
[12] The defence cross-examined Shawn and Dave extensively on the contents of their Original Statements. Neither adopted their Original Statements as truthful. Shawn claimed at one point that his Original Statement was “completely” wrong. He denied telling the police that someone other than the appellant had a gun and shot him, or that the appellant didn’t have a gun. He testified that he believed that the appellant was the shooter because, after he was shot, he saw the appellant “pumping” a shotgun. For his part, Dave indicated that he did not originally tell the 9-1-1 operator or the police that the appellant was the only man with a gun because he intended to “take care of the matter himself”.
[13] The appellant testified in his own defence. He admitted going to the repair shop on the day of the offences with two other men but said that he did not know that they were carrying guns or that they planned to rob Shawn. He claimed that the stolen property that he sold to Shawn on December 19 ‘belonged’ to “Ram” and that “Ram” shot Shawn at the repair shop the next day. The appellant also said that he first saw a gun when the shot was fired and that he did not see Dave at the repair shop at all.
[14] The defence never asked the trial judge to admit the evidence of the Original Statements for substantive use. As a result, no voir dire was held to assess the reliability of and necessity for the admission of this evidence. As well, at no point prior to the defence closing address to the jury was there any suggestion that the defence wished to make substantive use of the Original Statements. Moreover, prior to the close of the trial, the defence never sought to rely on the fact of the Original Statements to bolster the appellant’s credibility. Instead, the evidence of the Original Statements emerged on cross-examination of the Ganeshram brothers by the defence, for the sole purpose of impeaching their credibility and their assertion at trial that the appellant was the shooter.
[15] During his closing address to the jury, defence counsel at trial (not counsel on appeal) commented on the use by the jury of the evidence of Shawn’s Original Statement, suggesting that a comparison of that evidence with the trial testimony of the appellant should be made by the jury to assess credibility. However, in subsequent exchanges with the trial judge in the absence of the jury, defence counsel acknowledged that Shawn’s Original Statement could not be taken by the jury as true, that Shawn’s Original Statement was not admitted for the proof of the truth of its contents, and that a clarifying instruction should be provided to the jury by the trial judge concerning the evidential comparison urged by defence counsel in his closing address. Based on these acknowledgements, the trial judge instructed the jury on the limited permissible uses of the evidence of Shawn’s Original Statement. It is that instruction that is challenged by the appellant on this appeal.
[16] On March 30, 2005, the appellant was convicted of aggravated assault, assault, possession of a loaded prohibited firearm, robbery with a firearm and discharging a firearm with intent to wound. He was acquitted on a charge of possession of a weapon for a purpose dangerous to the public peace. He was sentenced to seven years imprisonment (four and a half years, in addition to two and a half years pre-sentence custody) on the counts of robbery with a firearm and discharging a firearm with intent to wound. As I have said, his convictions on the remaining charges were stayed in accordance with Kienapple.
III. Conviction Appeal
[17] The appellant advances two grounds of appeal against his convictions. He argues that the trial judge erred by instructing the jury that it could not compare Shawn and Dave’s Original Statements with the appellant’s statement to the police on arrest and his trial testimony, in which he identified his companion “Ram” as the shooter, for the purpose of assessing the appellant’s credibility – that is, to evaluate the truth of his version of events. The appellant next submits that the trial judge’s review of the evidence of what the appellant told the police on arrest was incomplete and unfair.
(1) Use of the Evidence
of the Original Statements
[18] The appellant argues that in the light of significant similarities between the contents of the Original Statements and the appellant’s statement to the police on arrest and his trial testimony, the evidence of the Original Statements was capable of providing a circumstantial basis of trustworthiness for the appellant’s version of events. In particular, the appellant submits that because the Crown argued two theories of the case – either that the appellant was the shooter or, alternatively, that he was a party to the shooting – the alleged similarities between the contents of the Original Statements and the appellant’s own version of events made it more likely than not that the appellant was telling the truth. The appellant also contends that the evidence of the Original Statements was admissible for substantive use. Consequently, the appellant maintains that the trial judge erred by limiting the jury’s use of the evidence of the Original Statements. I disagree.
[19] As I have said, Shawn and Dave did not adopt their Original Statements at trial. Although open to it, the defence brought no application to have Shawn or Dave’s Original Statements admitted as prior inconsistent statements for the proof of the truth of their contents. Nonetheless, during his closing address to the jury, defence counsel urged the jury:
Now, the other part of [Shawn’s Original Statement] that I want to read to you because I think it’s important, or I suggest to you it’s important, it doesn’t matter what I think - - is this - - and I’m quoting from the statement:
[The appellant] and the two guys come out of the van. [The appellant] is driving. And I’m talking to my customer. I say do you want the stuff back or the money? I gave [the appellant] 120 bucks but he’s upset and I notice the two guys with the shotgun, one pointed it at me. [The appellant] told my customer to shut up. [The appellant] punched me so I started to run to the shop, that’s when the guy with the checkered shirt shot me.
Does that not sound an awful lot like what [the appellant] told you? I gave [the appellant] 120 bucks, well, [the appellant’s] version is not he gave it to him, he threw it in his face. He’s upset. Well, he’s clearly upset because he punched him in the nose. And then, then is when he noticed the guys with the shotguns, he says two. One pointed it, [the appellant] punched me so I started to run to shop, that’s when the guy with the checkered shirt shot me.
That’s pretty close to what [the appellant] said.
[20] After the completion of counsels’ closing addresses and in the absence of the jury, the trial judge sought the assistance of counsel about the proposed contents of the jury charge. In so doing, the trial judge expressed concern with the above-quoted remarks by defence counsel, saying:
THE COURT: Now, let me raise one matter of concern to me, Mr. Crewe, that came up during the course of your submission. I need help on this.
Near the end of your submissions you brought to the jury’s attention the first statement that Shawn had given to the police --
MR. CREWE: Yes.
THE COURT: -- and made the observation that it was more or less consistent with your client’s testimony at trial.
I’m wondering whether that is a permissible use of that first statement by Shawn. We all know that the statement was admissible to prove -- was not admissible to prove the truth of its contents since it wasn’t adopted by Shawn but rather is admissible only for the jurors to take into account in assessing his credibility. This case is a little bit different because you’re alleging in effect that there was a common enterprise by the two brothers to fabricate evidence against your client.
So I’m wondering whether or not what you invited them to do, as I understood your submission, requires them to use Shawn’s first statement as if it was admissible to prove the truth of its contents, as opposed to the fact that a statement of that nature was made.
Can you help me on that?
My instinct is that that first statement of Shawn is not admissible as an item of evidence that might confirm the truthfulness of your client’s version of the events. [Emphasis added.]
[21] Faced with this inquiry by the trial judge, defence counsel expressly disavowed any intention to invite the jury’s use of Shawn’s Original Statement as proof of the truth of its contents – that is, as evidence that the appellant was not the shooter or as evidence otherwise enhancing the appellant’s credibility. Instead, defence counsel’s submissions focused on the jury’s assessment of Shawn’s credibility. This telling exchange with the trial judge took place:
MR. CREWE: No, I -- I --
THE COURT: You didn’t specifically cast the sub-mission in that spirit, but I don’t want some juror to go off on the tangent of saying look, Shawn’s first statement is exactly the same as the defendant’s version and therefore I’m inclined to have a reasonable doubt on this case.
MR. CREWE: I appreciate that, your honour. And it certainly wasn’t intentional. I didn’t mean to suggest that that statement - - that they can accept it as the truth of its contents. And obviously your honour will instruct them on that.
But they can use that statement, in my submission, to assess Shawn’s credibility on the remaining statements that he gives and also on the evidence that he gives this court.
THE COURT: I certainly agree with that latter observation. [Emphasis added.]
[22] Thus, in his reply to the trial judge, defence counsel conceded the limited permissible uses of the evidence of Shawn’s Original Statement by the jury. In ensuing dialogue with the trial judge, defence counsel again stated:
[THE COURT:] Now, is this case any different because you’re alleging a common enterprise by the brothers to fabricate evidence implicating your client as the shooter.
MR. CREWE: I would respectfully submit that that is something they’re entitled to take into account --
THE COURT: On the issue of collaboration, yes, which in turn may undermine the credibility of both of them. I understand that.
MR. CREWE: But it still doesn’t bring that statement to the level of proof of contents, I quite agree with that. [Emphasis added.]
[23] In the light of these concessions by the defence, the trial judge invited submissions from counsel on whether a clarifying instruction should be included in the jury charge to address the comments made by defence counsel. Defence counsel replied as follows:
MR. CREWE: Obviously you have to tell them that they can’t accept that statement for the truth of its contents because he did not adopt it. But they have to be told that the statement reflects upon his credibility in the sense that he gives subsequent inconsistent statements and does so after, in my submission, speaking with his brother. And that’s all I was intending to point out. And I’m sorry if I treaded further than I should have. [Emphasis added.]
[24] Once again, these remarks by defence counsel were centred on the jury’s assessment of Shawn’s credibility and the related issue of the defence assertion of collusion between Shawn and Dave. Defence counsel did not address Dave’s Original Statements nor did he suggest that the fact of any of the Original Statements could be used by the jury to enhance the appellant’s credibility.
[25] The Crown, in turn, argued that the jury should be told that it could not use the suggested similarities between Shawn’s Original Statement and the appellant’s trial testimony to support the conclusion that both were true. To do so, the Crown argued, would be an improper use of the evidence of Shawn’s Original Statement. The trial judge agreed with the Crown as, apparently, did defence counsel.
[26] Having sought and received the submissions of counsel, the trial judge instructed the jury:
Regrettably, I feel it is my obligation to comment on the address by Mr. Crewe. Near the end of his submissions, Mr. Crewe made an observation that the first statement given by Shawn Ganeshram to the police is more or less the same version of the events at 80 Barbados Boulevard on December 20, 2003 as given by the defendant under oath at trial. To use the first statement of Shawn Ganeshram as evidence tending to confirm the defendant’s version of events would require you to use the first statement as evidence of the truth of its contents. That is an impermissible use of the first statement because Shawn Ganeshram did not adopt it as the truth when he testified at trial. The only permissible uses of the first statement are as a prior inconsistent statement by Shawn Ganeshram, to assess his credibility, and, further, as some circumstantial evidence of the defence theory that Shawn Ganeshram and David Ganeshram collaborated with one another to falsely implicate the defendant as the person who shot Shawn Ganeshram on December 20, 2003. Recall my instructions to you concerning the use of prior inconsistent statements of a witness and the examples I gave you in that part of my charge. I am satisfied that Mr. Crewe did not intend to urge upon you an impermissible use of this evidence. However, it is my obligation to instruct you to disregard this part of his submission. [Emphasis added.]
[27] In my opinion, it is unnecessary for the disposition of this appeal to determine whether the Original Statements were admissible for their substantive use. Given the manner in which this trial unfolded, including the positions taken by the defence at trial, I conclude that the trial judge did not misdirect the jury on the permissible uses of the evidence of the Original Statements. I say this for four main reasons.
[28] First, and importantly, the position advanced by the appellant on appeal regarding the permissible uses of this evidence is completely at odds with the position taken by the defence at trial.
[29] By his submissions and concessions at trial, described above, defence counsel recognized that Shawn’s Original Statement could not be used by the jury in a manner that treated its contents as true. He also expressly acknowledged that his comments on this issue in his closing address warranted a clarifying jury instruction and that the instruction given should stress the use of Shawn’s Original Statement for only two purposes: to assess Shawn’s credibility and to support the defence claim of collusion by the Ganeshram brothers to implicate the appellant as the shooter. In the end, there was no suggestion by defence counsel that either the contents or the fact of Shawn’s Original Statement could be used to assess the appellant’s credibility or to test the veracity of his version of events.
[30] As I have mentioned, at trial the appellant invoked none of the well-established means for securing the admission of any of the Original Statements as proof of the truth of their contents. It was clearly open to the appellant to seek such a ruling had he concluded, through counsel, that this would assist his defence. Before this court, the appellant makes no assertion of the ineffective assistance of trial counsel. Accordingly, it must be assumed that the defence failure to request the admission of the Original Statements for substantive use was a strategic decision. I make no criticism of this decision. However, like any other trial tactic, it can bear consequences on appeal.
[31] The fact is that the defence neither sought the admission of any of the Original Statements for the proof of the truth of their contents, nor invited a comparison by the jury of Dave’s Original Statements with the appellant’s trial testimony. Nor did the defence submissions at trial concern the appellant’s statement to the police on arrest. In his comments to the jury, defence counsel proposed only a limited use of the evidence of Shawn’s Original Statement: a comparison of that evidence with the appellant’s trial testimony. Then, upon questioning by the trial judge, defence counsel expressly conceded the limited permissible uses of the evidence of Shawn’s Original Statement. In that context, the defence cannot complain now that the jury instruction provided by the trial judge, which warned against a broader use by the jury of the evidence of Shawn’s Original Statement, resulted in a miscarriage of justice. See for example, R. v. Young, [2007] O.J. No. 3974 (C.A.) at paras. 18 and 19.
[32] Yet, before this court, the appellant urges an even broader use of the evidence of the Original Statements than was initially sought by the defence at trial. He argues that a comparison by the jury of both Shawn and Dave’s Original Statements with the trial testimony of the appellant and with his statement to the police on arrest was permissible. This recast approach to the proper uses of the evidence of the Original Statements was never advanced or urged by the defence at trial.
[33] In my view, the appellant cannot successfully contend now for a more expansive consideration of the evidence of the Original Statements than was sought at trial. To hold otherwise would be to endorse multiple uses of this evidence by the jury in circumstances where, because of the tactical decisions of the defence at trial, no opportunity arose for the trial judge to evaluate either (1) the reliability of the Original Statements and the necessity (if any) for their admission at trial as proof of the truth of their contents, or (2) the merits of the exercise by him of his residual discretion to exclude the Original Statements, if warranted. Moreover, no opportunity arose at trial for the Crown to challenge the broad use of the evidence of the Original Statements, or to respond to the assertion – advanced by the appellant for the first time on appeal – that the fact of the Original Statements, regardless of the truth of their contents, was capable of providing a circumstantial guarantee of the trustworthiness of the appellant’s version of events. This issue simply never arose at trial.
[34] Second, and significantly, the impugned jury instruction was responsive to the form of instruction that the defence suggested should be provided to the jury.[^1] No doubt for this reason, defence counsel did not object to the instruction at any time at trial. Although the failure to object to the instruction provided is, of course, not fatal to the appellant’s position on appeal, it is a relevant factor to be considered in assessing what prejudice, if any, the appellant suffered as a result of the instruction. See R. v. Nguyen, [2000] O.J. No. 2129 (C.A.) at para. 30.
[35] Here, the trial judge raised the issue of the need for a correcting instruction with counsel before he delivered his charge to the jury. The defence agreed that an instruction was justified and suggested the preferred contents of the instruction to be given. Once the instruction was provided, the defence made no objection to its contents. Nor did it seek a recharge on the matter, although it requested a recharge on other issues.
[36] In other words, defence counsel did not merely fail to object in this case. He expressly agreed that an instruction was warranted, of the type in material part ultimately provided by the trial judge. He made no complaint in the face of the instruction. In this context, the observation of this court in R. v. Pecoskie, [2002] O.J. No. 4056 at para. 13 is apposite: “As a general rule, it should be a very rare case indeed in which an appellate court would decide that a trial judge has committed a reversible error on a matter which was expressly considered and agreed to by both counsel and the trial judge.” See also R. v. Ferguson, [2000] O.J. No. 346 (C.A.) at para. 92 per Laskin J.A. (in dissent, aff’d 2001 SCC 6, [2001] 1 S.C.R. 281); R. v. Austin, [2006] O.J. No. 4660 (C.A.) at paras. 14 and 15. In my opinion, this case does not come within that narrow category of cases requiring appellate intervention notwithstanding the defence position at trial.
[37] Third, read as a whole, the charge was thorough and fair, both to the defence theory of the case and the defence position – as eventually reframed by defence counsel – on the permissible uses by the jury of the evidence of Shawn’s Original Statement.
[38] The defence theory was simple. The appellant maintained that although he struck Shawn, he was not in possession of a gun, did not rob him at gunpoint and did not shoot him. Rather, in respect of these offences, “Ram” was Shawn’s assailant. In his charge, the trial judge directed the jury to scrutinize the circumstantial evidence tending to identify the appellant as the shooter with the “greatest of care”. He emphasized that no eyewitness saw the appellant shoot Shawn and instructed the jury to “closely examine” the Ganeshram brothers’ testimony identifying the appellant as the shooter. He specifically told the jury that the evidence of Shawn’s Original Statement could be used to assess Shawn’s credibility and, further, as some support for the defence claim that Shawn and Dave colluded to implicate the appellant as the shooter. He provided several examples to the jury of the numerous inconsistencies in Shawn’s and Dave’s evidence, including in their out-of-court statements regarding the identity of the shooter. Finally, at the request of the defence, he provided a strong ‘Vetrovec’ warning to the jury regarding the dangers of accepting Dave’s evidence: R. v. Vetrovec, [1982] 1 S.C.R. 811. In these circumstances, it is reasonable to assume that the jury understood the defence theory, the evidence that supported it, and the frailties of the Crown’s case.
[39] Finally, for completeness sake, I add that I do not accept the appellant’s submission that the impugned instruction by the trial judge prejudiced the appellant by improperly criticizing defence counsel for making the jury submission in question. The trial judge was careful to tell the jury that his comments on defence counsel’s closing address were not intended “to impugn his credibility or capability as a lawyer”, that his remarks were not to be taken as a comment by him on the strength of either the Crown or defence case, and that he was satisfied that defence counsel did not intend to invite an impermissible use of the evidence by the jury. These comments were designed to remove any possible ‘sting’ in the minds of the jurors arising from the trial judge’s remarks about defence counsel’s submission, and to make clear – as defence counsel himself had indicated to the trial judge – that any overreaching in the submission was inadvertent. I think that the jury would have understood the instruction for what it was – a direction from the trial judge to correct an unintentionally expansive submission by counsel. The trial judge’s comments were not so denigrating of counsel as to deprive the appellant of a fair trial.
[40] Accordingly, in light of the manner and purpose for which the evidence of the Ganeshram brothers’ Original Statements was introduced at trial, the position ultimately taken by the defence at trial on the permissible uses of the evidence of Shawn’s Original Statement, the input of defence counsel on the instruction to be furnished to the jury on this issue, the responsive nature of that instruction to the defence position, the absence of any defence objection to the instruction provided, and the overall fairness of the charge, I conclude that this ground of appeal must fail.
(2) Review of the Evidence of the
Appellant’s Statement on Arrest
[41] The appellant also argues that the trial judge’s review for the jury of the evidence of what the appellant said to the police on his arrest was inaccurate and unfair. He submits that there are important differences between his testimony as to what he told the police and the testimony of the involved police officers on this issue. While the trial judge identified most of these differences in his charge, the appellant maintains that he erred by suggesting to the jury that the discrepancies in issue were denied by the involved police officers on cross-examination. According to the appellant, this error was exacer-bated by the trial judge’s refusal to recharge the jury on this matter, notwithstanding defence counsel’s objection to the trial judge’s portrayal of the officers’ testimony. For the reasons that follow, we did not call upon the Crown to respond to this ground of appeal.
[42] The trial judge clearly told the jury that, on the appellant’s testimony, there were several “points of difference” between what the appellant claimed to have said to the police and what the police officers testified that the appellant had said. The trial judge noted the appellant’s assertion that parts of his conversation with the police as recorded by one of the police officers in his notes were “incorrect” and reminded the jury that English is not the appellant’s first language. The effect of this instruction was to bring home to the jury that the actual words spoken by the appellant in his police statement were contested and that the appellant may have misspoken or been misunderstood. This warning benefited the defence.
[43] The trial judge also told the jury early in his charge that it was not bound by his review of the evidence or by any opinions that he might express concerning the evidence. He quite properly directed the jurors that they could disagree with his understanding of the evidence, which he said might be incorrect, and stressed that the jurors were to be guided by their own recollections and assessment of the evidence.
[44] These instructions by the trial judge must be understood in the context of the closing addresses of counsel. In his final argument to the jury, Crown counsel submitted that the police made no mistake in writing down the appellant’s words because what was recorded was “exactly what was said”. The trial judge’s review of the evidence of the appellant’s statement on arrest and his cautionary words to the jury about the disputed evidence left open the possibility that, contrary to the Crown’s submission, the involved police officer may have erred in his recording of the appellant’s words in his notebook.
[45] In addition, in his closing address, defence counsel also reminded the jury that English is not the appellant’s “mother language”. He also drew the jury’s attention to certain of the differences between the appellant’s testimony on the contents of his statement and that of the police officers. Importantly, defence counsel outlined for the jury the concessions made by the involved police officer regarding the accuracy of his notes and stressed the fact that the second officer on the scene had no notes of the matters in dispute. Defence counsel told the jury:
And in fairness, Detective McGrath acknowledged he [the appellant] may have said it the way that [the appellant] says he did. It could be, he said. He also candidly admitted that it was sometime after he got back to the station that he made the notes. And incidentally, Detective Constable Love has no note of that particular part of the conversation. …
[The appellant] says they were drinking. And he did not describe them as his friends. Once again, I’d ask you to bear in mind that Detective Constable Love has no note of that conversation and apparently no recollection of it.
[46] In any event, based on the transcript of the involved police officers’ testimony, it is unclear whether the trial judge misstated the evidence when he said that the differences between the appellant’s and the officers’ testimony were denied by the officers under cross-examination. For example, while Officer McGrath, who recorded the appellant’s statement on arrest, acknowledged that it was possible that what the appellant claimed to have said was what in fact he did say, he also testified, “I just remember from what he said, I wrote it down immediately when I got to the station. And as far as I’m concerned, what I wrote down is what he had told me.” The trial judge interpreted the officer’s evidence, in effect, as an acknowledgement by him that “anything’s possible”. This is a reasonable interpretation of the relevant exchange with the officer on cross-examination.
[47] Finally, assuming that the trial judge was not entirely accurate or complete in his description of the police officers’ evidence regarding the appellant’s statement on arrest, I am not persuaded that this defect in the charge impaired trial fairness or caused a miscarriage of justice. In the end, the jury charge clearly stated the appellant’s version of events, his consistent claim to the police and at trial that “Ram” was the shooter, and the fact that there were differences between the police witnesses and the appellant on some aspects of the exact utterances of the appellant when he was arrested. In these circumstances, the jury cannot have been misled. I would reject this ground of appeal.
IV. Sentence Appeal
[48] In his reasons for sentence, the trial judge observed that it was difficult to determine the factual implications of the jury’s verdicts because the Crown’s theory of the case embraced the possibility of the appellant’s culpability as a principal offender or as an aider or abettor. Accordingly, some of the jurors may have returned verdicts of guilty on either basis. In this context, the trial judge found that the appellant aided and abetted the other perpetrators of the robbery and the shooting. He held that the common purpose of the appellant and his companions was “to shoot Shawn…with the sawed-off shotgun in retaliation for his payment of $200 in counterfeit money for their stolen property”.
[49] Against this backdrop, the appellant appeals his sentence on two grounds. First, he argues that his overall sentence of seven years was unreasonable. He emphasizes that, on the trial judge’s findings, his role in the shooting was limited, he was not the actual gunman, he was not holding a gun, and he did not direct the shooting. Second, he maintains that the trial judge erred by failing to take into account his rehabilitative pros-pects and by overemphasizing general deterrence and media reports of the use of firearms in Toronto. I do not accept these submissions.
[50] These crimes involved the brutal shooting of an unarmed man, resulting in serious and long-term injuries to the victim and adverse financial and emotional consequences for members of his family. The victim gave no indication that he had a gun or any other weapon, nor was he the aggressor at any point. The trial judge found that the appellant knowingly and purposely assisted his companion “Ram” in the intentional shooting of the victim with a loaded sawed-off shotgun for the sole purpose of exacting revenge over a dispute concerning payment of $200 in counterfeit money for stolen property. As the trial judge commented, “This was crime to facilitate crime.” Moreover, the appellant has a lengthy criminal record that includes convictions for violent offences and breaches of recognizance and probation. At the time of these offences, he was subject to an order prohibiting his possession of firearms. In my view, the sentence imposed was entirely fit.
[51] I would also reject the appellant’s contention that the trial judge erred in his consideration of the appellant’s rehabilitative prospects or by overemphasizing general deterrence and the incidence of firearms use in the community.
[52] In sentencing reasons that I regard as exemplary, the trial judge addressed, among other matters, the appellant’s background, including his laudatory behaviour in jail pending trial, his educational history, his family circumstances, his approach to the preparation of his pre-sentence report and the sentencing hearing, and his expressed hope to resume a peaceful life upon release from custody. These were all factors bearing directly on the appellant’s prospects for rehabilitation.
[53] The trial judge also explicitly considered the applicable principles of sentencing under s. 718 of the Criminal Code. In so doing, he neither overemphasized nor attached undue weight to general deterrence. His consideration of general and specific deterrence was properly tied to the requirement that regard be had to the appellant’s rehabilitative interests.
[54] Finally, I agree with the Crown’s submission before this court that the trial judge’s comments regarding the incidence of the use of firearms in Toronto were measured. There was no suggestion at the sentencing hearing that consideration of this factor was inappropriate. On the contrary, defence counsel acknowledged, responsibly in my opinion, the relevance on sentencing of unchallenged reports of the increasingly frequent use of firearms in the community.
V. Disposition
[55] For the reasons given, I would dismiss the appeal against conviction. I would grant leave to appeal sentence and dismiss the sentence appeal.
RELEASED:
“NOV 22 2007” “E.A. Cronk J.A.”
“DOC” “I agree D. O’Connor A.C.J.O.”
“I agree J.C. MacPherson J.A.”
[^1]: The challenged instruction was also similar, in part, to a midtrial instruction regarding Dave’s Original Statements, provided by the trial judge when the police audiotape of the 9-1-1 call was introduced by the defence during Dave’s cross-examination. The defence did not object to this midtrial instruction.