Court of Appeal for Ontario
Citation: R. v. Smith, 2010 ONCA 229
Date: 2010-03-29
Docket: C48635
Between:
Her Majesty The Queen (Respondent)
and
David Smith (Appellant)
Before: Feldman, Sharpe and Gillese JJ.A.
Counsel:
Michael Dineen and Kirsten Agrell, for the appellant
Alexander Hrybinsky, for the respondent
Heard: March 22, 2010
On appeal from the conviction and sentence imposed by Justice Edward Belobaba of the Superior Court of Justice on February 11, 2008 and April 11, 2008.
Sharpe J.A.:
[1] The appellant was convicted after a jury trial of attempted murder and aggravated assault, and sentenced to 10 years’ imprisonment. He appeals both conviction and sentence.
FACTS
[2] The facts giving rise to these charges may be briefly stated. The appellant engaged the complainant to do some web design work. There were delays in completion and the appellant went to the complainant’s office where an argument about these delays ensued. The complainant testified that he was suddenly attacked by the appellant and stabbed in the back repeatedly. The appellant testified and acknowledged that he had stabbed the complainant, but asserted that he had been attacked first by the complainant and that he acted in self-defence. The complainant was stabbed eight times and the broken blade of a knife was embedded in his spine. The complainant suffered severe life-threatening injuries, leaving him permanently disabled.
ISSUES
[3] The appellant raises the following grounds of appeal against conviction:
The trial judge erred by a. permitting the Crown to lead evidence that the appellant exercised his right to silence; and b. failing to instruct the jury as to the permissible use of prior consistent statements made by the complainant.
The trial judge erred by failing to give any legal instructions on the use of evidence of post-offence conduct.
[4] In oral submissions, the appellant abandoned the ground raised in his factum as to the adequacy of the trial judge’s instructions on self-defence.
[5] The appellant further submits - and the respondent concedes – that the conviction for aggravated assault should be stayed under the principle developed in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
[6] Finally, the appellant submits that the sentence imposed is unfit.
ANALYSIS
1. Conviction appeal
[7] As the appellant links the grounds relating to the right to silence and the use of the complainant’s prior consistent statements, I will deal with them jointly.
(i) Right to silence
[8] The trial Crown vigorously cross-examined the appellant. During the course of that cross-examination, the trial Crown questioned the appellant as to why he was rubbing his arm while testifying, suggesting that the appellant had a habit of rubbing his arm when nervous and that it was a sign that he was lying. Defence counsel objected and the trial judge asked the trial Crown to move on. However, the trial Crown persisted and proceeded to ask the appellant if he remembered speaking to the police at the station shortly after he had surrendered. She referred to a video recording of the appellant’s interview with the police and suggested that he was rubbing his arm at that time. The crucial portion of the cross-examination is embodied in the following question and answer:
Q. I’m going to suggest to you that that video is quite short, lasts about ten minutes, and all that happens is essentially that you’re seated, explained the allegations, you’re told about what [the complainant] said you did to him, and Detective Teeter explains to you the injury sustained by [the complainant]. Does that help you remember?
A. The only thing that I remember is sitting in a room with Detective Teeter and a female officer asked if I want to make a specific statement, to which I declined, and I was taken back [to] where I was held.
[9] In my view, and as acknowledged by the respondent, the trial Crown’s cross-examination was problematic for three reasons.
[10] First, the trial Crown appears to have simply ignored the trial judge’s direction that she move on to another topic.
[11] Second, as the trial judge pointed out when attempting to dissuade the trial Crown from proceeding further, the fact that the appellant was rubbing his arm was demeanour evidence having little, if any, weight.
[12] Third, by questioning the appellant on his police station interview in a case where she knew the appellant had exercised his right to silence, the trial Crown was entering into obviously dangerous territory.
[13] On the other hand, the appellant’s trial counsel did not object to the admission of evidence as to what occurred at the station, he did not move for a mistrial nor did he ask then or later for any corrective instruction to the jury regarding the right to silence. Moreover, while the trial Crown certainly should have stayed away from the police station interview altogether, it was the appellant who volunteered the fact that he had declined to make a statement after his surrender. He did so briefly and in a neutral manner that minimized the significance of the fact that he remained silent in the face of the police questioning. Apart from a fleeting reference in the Crown’s closing address to the fact that neither she nor the jury had heard the appellant’s story before he testified, nothing was made of the fact that the appellant had exercised his right to silence when questioned by the police.
(ii) Use of the complainant’s prior consistent statements
[14] Before considering the impact the right to silence issue had on the trial, I will examine the related ground of appeal.
[15] During the presentation of the case for the Crown, counsel briefly referred to a statement made by the complainant to the police in the hospital. This reference appears to have been made as part of the narrative and, in any event, no objection was taken to this evidence. It was during the cross-examination of the complainant that the appellant’s trial counsel extensively referenced various out-of-court statements made by the complainant. In the end, however, the appellant’s trial counsel failed to demonstrate any significant contradictions between those statements and the complainant’s testimony.
[16] The appellant’s argument centres on the trial Crown’s closing address. In that address, she underscored that there were no inconsistencies between what the complainant had said at trial and what he had said earlier. This, she submitted, signalled that the complainant was “telling the truth”. She further stated: “The hallmark of a truthful witness is this: that there are no inconsistencies in their evidence”.
[17] Again, there was no objection from defence counsel and no request for a limiting or corrective instruction.
[18] The appellant submits that this amounted to an invitation by the Crown to draw the impermissible inference that, because the witness had told the same story in the past, he was more likely to be telling the truth when he testified in court.
[19] While the respondent concedes that the trial Crown overstated the significance of the prior consistent statements, he nonetheless points out that virtually all of the prior consistent statements were led by the defence, not the Crown. Moreover, the respondent further stresses that, as the defence had sought to use the prior statements to undermine the complainant’s credibility, the Crown was entitled to rebut that attack by emphasizing that the complainant had, in fact, been consistent in his statements.
[20] The appellant submits that the problem arising from the invasion of his right to silence is compounded by the Crown’s invitation to the jury to use the complainant’s prior consistent statements as a way of finding the complainant to be credible. The appellant submits that in a case involving a flat-out contradiction between the two principal witnesses, the Crown was, in effect, telling the jury to disbelieve the appellant, who had refused to say anything until trial, and to believe the complainant had given a consistent version of the incident from the very start.
[21] Despite Mr. Dineen’s very capable argument, in the end, I am simply not persuaded that whether considered individually or cumulatively, these regrettable features of the presentation of the Crown’s case occasioned any substantial prejudice to the appellant or gave rise to any miscarriage of justice.
[22] While the Crown should not have ventured into the territory of the police station interview, it was the appellant who volunteered that he had exercised his right to silence. His answer was brief and his counsel did not object or ask for any corrective instruction. I agree with the respondent that a corrective instruction could well have served only to draw more attention to this feature of the evidence. This was not a case where the appellant stood on his right to silence or where anything was made of the fact that, when he first encountered the police, he decided not to make any statement.
[23] I reach the same conclusion with respect to the prior consistent statement issue. It was the defence that led virtually all of the relevant evidence in an effort to undermine the complainant’s credibility. While the Crown overstated the significance of the prior consistent statements at issue, it was nonetheless entitled to rebuff any suggestion that the complainant had been inconsistent.
[24] Finally, when considered in the context of this trial as a whole, these were relatively minor errors and fleeting moments in a week-long trial that, in my view, would not have affected the outcome. The appellant’s evidence as to what led to the stabbing was, in many respects, implausible and improbable while the nature of the injuries he inflicted upon the complainant was hardly consistent with his claim that he merely acted in self-defence. I am entirely satisfied that the minor errors I have identified had no meaningful bearing on the outcome of this case and that, had they not occurred, the result would have been the same.
[25] Accordingly, I am not persuaded that there was any reversible error and, even if there was, I would apply the curative proviso, s. 686(1)(b)(iii).
2. Post-offence conduct
[26] The appellant submits that the trial judge erred by failing to provide a limiting instruction with respect to evidence of post-offense conduct. The evidence allegedly amounting to proof of post-offence conduct consisted in the appellant having left the scene of the crime and, given that no knife was found in that location, it could thus be inferred that the appellant had left with the knife to conceal it. The appellant relies on the well-established principle that a limiting instruction is required when the Crown adduces evidence of post-offence conduct to support an inference of consciousness of guilt.
[27] I am unable to accept the appellant’s submission on this issue. One of the central issues at trial was the source of the weapon used to stab the complainant. The complainant thought that it was concealed and attached to a cane being carried by the appellant. The appellant denied that he came armed with a knife and testified that during the struggle, he reached up and grabbed a knife from a table. Clearly, the origin of the knife was a crucial issue. If the appellant came armed with a knife, his self-defence argument would be seriously undermined. Similarly, any callousness he demonstrated towards the complainant by leaving the scene had a direct bearing on whether he had the requisite intent for attempted murder.
[28] I agree with the respondent’s characterization of the trial Crown’s submissions on this point. The trial Crown did not invite the jury to infer guilt or consciousness of guilt from the appellant’s actions following the stabbing. Rather, the trial Crown invited the jury to conclude that: (1) the appellant had left with the same knife he brought to the meeting and used to attack the complainant; and (2) his actions at the time of the offence indicated that he had the intent to kill the complainant.
[29] I note, as well, that the appellant’s trial counsel did not ask for an instruction on evidence of post-offence conduct or raise any objection to the charge on this ground.
[30] Accordingly, I would not give effect to this ground of appeal.
3. Sentence appeal
[31] The appellant seeks leave to appeal his sentence of 10 years’ imprisonment. The trial judge gave detailed and careful reasons for sentence. He reviewed the circumstances surrounding the offence in depth. He identified all mitigating factors, the principal one being that the appellant was a first offender with strong antecedents, and this offence appears to have been completely out of character.
[32] I do not agree with the submission that the sentence imposed by the trial judge failed to take into account his own finding that the attack on the complainant had not been proved to be premeditated or planned. The trial judge specifically adverted to that fact when considering where to locate this offence and this offender within the range of 5 to 15 years that he identified for this case. He recognized that, taken in isolation, the appellant’s antecedents and lack of pre-meditation would push the case into the lower part of that range. He concluded, however, that a sentence in the middle of the range was warranted because of the severe nature of the injuries inflicted upon the complainant and the devastating and long-lasting impact they have engendered.
[33] I see no error in principle that would justify appellate interference, nor do I consider the sentence to be manifestly unfit.
CONCLUSION
[34] Accordingly, I would stay the conviction for aggravated assault under the Kineapple principle. However, I would otherwise dismiss the appeal from conviction. I would grant leave to appeal sentence but dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree K. Feldman J.A.”
“I agree E.E. Gillese J.A.”