R. v. Carty, 2010 ONCA 671

CITATION: R. v. Carty, 2010 ONCA 671

DATE: 20101013

DOCKET: C49379 and C49767

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Carty and Fabian Vermont

Appellants

Jill R. Presser, for the appellant, Steven Carty

Peter Copeland, for the appellant, Fabian Vermont

Deborah Krick, for the respondent

Heard: September 13, 2010

On appeal from the convictions of the appellants entered on February 28, 2008 and the sentence imposed on June 30, 2008 with respect to the appellant, Steven Carty, by Justice George Valin of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. Introduction

[1] The appellants, Steven Carty and Fabian Vermont, and Fabian’s brother Daniel Vermont, were charged with the attempted murder of Dwayne Guy. After an eight-day trial before Valin J. and a jury, Carty was found guilty of attempted murder. Fabian and Daniel Vermont were found not guilty of attempted murder but guilty of the lesser included offence of aggravated assault. Carty was sentenced to 8½ years’ imprisonment, less 2½ years’ credit for pre-trial custody. Fabian and Daniel Vermont were each sentenced to 3½ years’ imprisonment, less credit for pre-trial custody.

[2] Carty appeals his conviction on two grounds: first, he submits that his conviction for attempted murder is unreasonable; and second, he submits that the trial judge erred in law in his charge to the jury by failing to put the position of the defence on the mens rea for attempted murder and the evidence supporting that position. Carty asks the court to set aside the conviction for attempted murder, substitute a conviction for aggravated assault, and reduce his sentence to time served (4½ years, including the 2½ years’ credit for pre-trial custody).

[3] I agree with Carty’s second submission. I would therefore set aside his conviction for attempted murder and, on the concurrence of both Carty and the Crown, substitute a conviction for aggravated assault. I would reduce Carty’s sentence from 8½ years’ to 5½ years’ imprisonment, less 2½ years’ credit for pre-trial custody.

[4] Fabian Vermont appeals his conviction on three grounds. First, he submits that the trial judge erred in his instructions to the jury on “aiding” because he left the jury with the impression that positive action was not required for a finding of guilt. Second, he submits that the trial judge should not have left liability as an abettor with the jury. Third, he submits that the trial judge erred by failing to relate the principles of party liability to the evidence capable of supporting a conviction for party liability. Fabian Vermont asks that his conviction for aggravated assault be set aside and for a new trial. I would not give effect to Fabian Vermont’s submissions and would therefore dismiss his conviction appeal.[^1]

B. The Incident Giving Rise to the Charges (March 8, 2006)

[5] The victim, Guy, was a drug dealer in North Bay. In late 2005 he met the three accused, who, together, were in the business of selling cocaine. For approximately two months, the four men lived together in a friend’s house from where they dealt drugs to the North Bay community.

[6] However, Guy’s business arrangement with the three accused ended in February 2006, when they proposed to raise the price of their cocaine. Guy stopped living with Carty and the Vermont brothers, and stopped selling their cocaine. At the time of their falling out, Guy owed the three accused $200.

[7] The incident giving rise to the charges occurred shortly after the falling out. In the early morning hours of March 8, on the pretext of giving him a ride home, another drug dealer associated with the three accused drove Guy to a dead-end cul-de-sac and parked beside another car. Guy got out of the car in which he was driven. Carty and Daniel Vermont got out of the other car.

[8] Carty told Guy that he was very disappointed in him. Daniel Vermont then struck Guy’s right knee with a hammer. Carty put Guy in a headlock and said “shut up and take it like a man.” Guy, however, escaped Carty’s grasp and started to run away. He looked back and, as he did so, a man whom he later identified as Fabian Vermont, struck him with a baseball bat. Carty then proceeded to stab Guy with a pocket knife, which had a three- to four-inch blade. Carty slashed Guy’s face, stabbed his legs and arms, and stabbed him three times in the back – in total Carty inflicted seven stab wounds.

[9] Eventually Carty and the Vermont brothers got back in their car. As they did so, Guy stood up. The three accused looked at him and then drove away.

C. The Trial

[10] There were two main issues at trial: the identity of Guy’s assailants; and whether the assailants were guilty of attempted murder or aggravated assault.

[11] Guy at first refused to identify his assailants. He said that he did not know who had stabbed him. However, in October 2006, seven months after the incident, while he was incarcerated on an unrelated matter, Guy identified the three accused as his assailants. He said that he had not identified them earlier because he was afraid.

[12] At trial, the Crown’s case hinged almost entirely on the evidence of Guy, who, during his evidence-in-chief, again identified the three accused as his assailants. Guy was an admitted thief, liar and con man, so the trial judge properly gave the jury a strong Vetrovec warning about accepting his evidence. There was, nonetheless, some corroborating evidence for his testimony.

[13] At trial, both Fabian and Daniel Vermont were represented by counsel. Carty represented himself. None of the accused testified or called a defence.

D. Carty’s Appeal

(1) Was the verdict of attempted murder unreasonable?

[14] To find Carty guilty of attempted murder, the jury had to be satisfied beyond a reasonable doubt that he intended to kill Guy. Carty submits that there was no evidence on which a properly instructed jury, acting reasonably, could infer the necessary intent. I do not accept this submission.

[15] The Crown’s case on attempted murder was thin, but there was enough evidence to sustain the reasonableness of the verdict. That evidence included:

• The attack was planned;

• It took place in a secluded area;

• Carty stabbed Guy with a knife seven times; and

• Three of the stab wounds were to the back and penetrated Guy close to his lungs.

[16] I would not give effect to this ground of appeal.

(2) Did the trial judge err in law in his charge to the jury by failing to put the position of the defence and the evidence supporting that position?

[17] Many cases, both in the Supreme Court of Canada and provincial appellate courts, have discussed the trial judge’s duty in charging a jury in a criminal case. A number of the important cases are reviewed in the majority reasons of Bastarache J. and the dissenting reasons of Fish J. in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523.

[18] The overriding principle is fairness. To ensure that the accused has a fair trial, two things that a trial judge must ordinarily do, but that this trial judge did not do, are tell the jury the position of the defence and the key evidence supporting that position. Without these instructions a jury might not appreciate the significance of the evidence from the defence’s perspective: see Daley at para. 19; Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120 at p. 126.

[19] The failure of a trial judge to so charge the jury does not always amount to a reversible error. An appellate court may still be satisfied, after considering the charge as a whole and in the light of the closing arguments and positions of counsel, that the trial judge’s instructions were adequate; or that the Crown’s case was so overwhelming that the trial judge’s failure to instruct the jury on the defence’s position and the evidence supporting it did not result in a miscarriage of justice.

[20] In this case, the trial judge’s charge does not survive appellate scrutiny. The trial judge did review for the jury, at some length, the evidence in this case. He also charged the jury on the mens rea for attempted murder. He properly instructed them that the accused had to “mean to kill” Guy; “nothing less will do”. But the trial judge did not instruct the jury on the evidence bearing on whether Carty had the intent to kill Guy or merely the intent to wound him. He simply told the jury to “consider all the evidence” – “what he did or did not do, how he did it or did not do it and what he said or did not say.”

[21] Then, when the trial judge instructed the jury on Carty’s position he told them only the following:

Steven Carty reminded you that he was and remains entitled to the benefit of the presumption of innocence unless and until his guilt is proven beyond a reasonable doubt. He invited you to scrutinize closely the evidence of Dwayne Guy and that following that scrutiny you should find that Mr. Guy was not a credible witness and that his testimony is not reliable.

Mr. Carty urged you to find that there is no evidence capable of supporting such an incredible and unreliable testimony.

He suggested that when you apply the judge’s instructions on the law to the findings of fact that you will make, you should have no difficulty concluding that the Crown has failed to prove his guilt beyond a reasonable doubt.

[22] In this place in his charge as well, the trial judge did not instruct the jury on the critical evidence supporting Carty’s claim that he did not have the mens rea for attempted murder. The trial judge’s failure to instruct the jury on Carty’s position that he intended to wound Guy not kill him, and on the evidence supporting his position, deprived Carty of a fair trial for two reasons. First, as I have said, the Crown’s case on attempted murder was thin at best. In his closing argument Crown counsel acknowledged the jury may have “difficulty” finding any of the accused guilty of attempted murder.

[23] Second, Carty was self represented. His closing address to the jury was very brief and said nothing about the evidence supporting his position. All he said was this:

Yeah. I was just gonna be quick, Your Honour. Innocent until proven guilty beyond a reasonable doubt. You heard of my pleading not guilty at the beginning, when the trial commenced. Your Honour and ladies and gentlemen of the jury, the evidence brought before you by Dwayne Guy is inconsistent, unreliable, and the Crown has failed to prove beyond a reasonable doubt that myself or any of the accused were event [sic] at the scene of an assault. I therefore urge you to find that there is a lack of grounds for these charges. And, furthermore, take a good examination of the evidence and listen to any instructions that Your Honour might do. I thank you for attending my trial.

[24] Yet there were cogent pieces of evidence that cast doubt on whether Carty had the necessary intent to kill. That evidence included the following:

• Although Guy owed Carty money, Guy admitted that Carty never threatened him;

• When Carty first confronted Guy he told him to “take it like a man”. In common parlance, this mean to take a beating, not a killing;

• Carty never threatened to kill Guy;

• Carty used a pen knife with a small blade, not a machete or a gun;

• Carty did not stab Guy in any of the obvious life-threatening places on the body. He did not slit his throat or stab him in the heart;

• When Carty and the two Vermont brothers left the scene, Guy stood up and looked at them. Knowing Guy was alive, Carty nonetheless drove away.

[25] The Crown acknowledges that the trial judge did not review the evidence relevant to the mens rea for attempted murder or the evidence supporting Carty’s position that he did not have the intent to kill. The Crown, nevertheless, contends that the trial judge’s failure to do so did not amount to reversible error. She points to the absence of any objections to the charge from counsel for Daniel and Fabian Vermont and to the trial Crown’s closing argument in which he set out some of the evidence favouring Carty’s defence.

[26] I cannot accept the Crown’s contention. The failure of defence counsel for the Vermont brothers to object does not carry much weight. Of the three accused, Carty was the one potentially most at risk to be convicted of attempted murder, and he did not have a lawyer to represent his position. Although Crown counsel is to be commended for his closing argument, a counsel’s address does not have the force of instructions from the trial judge.

[27] Without a summary from the trial judge of the key evidence supporting Carty’s position that he did not intend to kill Guy, I am not satisfied that the jury would have appreciated the cumulative strength of this evidence. The trial judge’s failure to instruct the jury on Carty’s position and the evidence supporting it is an error in law.

[28] Because of this error in the trial judge’s charge and because the Crown’s case was far from overwhelming, Carty’s conviction for attempted murder cannot stand. Ordinarily, the court would set aside this conviction and order a new trial. However, both Carty and the Crown agree that if the conviction for attempted murder is set aside, the court should substitute a conviction for aggravated assault. The court has the authority to do so, and the evidence certainly supports a conviction for aggravated assault: see R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 at paras. 98-99. I would therefore dismiss Carty’s conviction appeal, but set aside the conviction for attempted murder and substitute a conviction for aggravated assault.

(3) What is a fit sentence?

[29] The trial judge sentenced Carty to 8½ years’ imprisonment and then gave him credit of 2½ years for his pre-trial custody. He has now served a further 2 years’ imprisonment. Carty submits that he should be sentenced to time served for aggravated assault. The Crown acknowledges that his sentence should be reduced if the verdict is changed to aggravated assault, but submits that a fit sentence is 6 years.

[30] Carty is now 31 years old. He has a supportive family and, on the finding of the trial judge, some genuine prospects for rehabilitation.

[31] On the other hand, unlike his co-accused, neither of whom had a previous criminal record, Carty has an extensive record (though much of it is a youth record). He was the acknowledged leader of the group – Fabian and Daniel Vermont were referred to in the evidence as his “apprentices”. Carty also inflicted the most serious injuries in what was unquestionably a planned and vicious attack. As a result of the attack, Guy spent two weeks in hospital, and now suffers from numbness in his face and left shoulder, and chronic pain in his knees.

[32] After taking these considerations into account, I am of the view that a fit sentence is 5½ years, less 2½ years’ credit for pre-trial custody.

E. Fabian Vermont’s Appeal

[33] The trial judge charged the jury that each accused could be liable as a principal or as a party. On party liability he charged the jury that each accused could be liable as an aider or as an abettor.

[34] Fabian Vermont objects to the trial judge’s charge on party liability. He submits that the trial judge erred in his charge on aiding, that he should not have left abetting with the jury, and that he failed to relate the law on party liability to the evidence capable of supporting a finding of guilt as a party.

[35] The crux of Fabian Vermont’s submission on aiding is that the trial judge did not tell the jury that to be guilty of “aiding” under s. 21(1)(b) of the Criminal Code, Fabian Vermont had to take an active step to assist in the assault on Guy. In support of his submission, Fabian Vermont points out that Guy admitted to having only a fleeting glimpse of the person wielding the baseball bat, and agreed he did not see Fabian Vermont while he was being stabbed. The crux of Fabian Vermont’s submission on abetting is that there was no evidence to suggest he instigated, promoted or encouraged the attack on Guy.

[36] I do not agree. First, the force of Fabian Vermont’s submission is greatly diminished by the jury’s determination that he was not guilty of attempted murder. It is highly likely that the jury found him guilty of aggravated assault as a principal, not as a party.

[37] Second, the trial judge told the jury that mere presence at the time of the offence was not sufficient to find an accused guilty of aiding or abetting. For example, on his charge on aiding he said to the jury:

It is not enough that a person was simply there when a crime was committed by someone else. In other words, just being there does not make a person guilty as an aider of any or every crime somebody else commits in the person’s presence. Sometimes, people are in the wrong place at the wrong time.

The trial judge also told the jury that to be guilty of aiding, the accused “must intend to help the other person commit the offence. Actual assistance is necessary.”

[38] I agree with the Crown that from these instructions there was no risk the jury would have convicted Fabian Vermont for simply being at the scene of the assault. The jury would have understood that if they found Fabian Vermont was present at the scene but did not participate in the assault, he should be acquitted.

[39] Third, the inference that Fabian Vermont was the person who hit Guy with a baseball bat is compelling. There was a lot of evidence that Fabian Vermont was at the scene of the assault and that the only others present were his brother Daniel, Carty and the victim, Guy. The evidence was uncontradicted that Guy was hit with a hammer, stabbed with a knife and clubbed with a baseball bat. The evidence was also uncontradicted that Daniel Vermont wielded the hammer and Carty used the knife. Yet there is no evidence that either of these accused also wielded the bat. The conclusion that Fabian Vermont did so is thus compelling.

[40] Fourth, liability as an abettor had an air of reality. On the Crown’s theory, Fabian Vermont struck Guy with the bat as Guy was trying to escape, thus allowing the assault on him to continue. In this sense, Fabian Vermont might be said to have encouraged, instigated or promoted the assault.

[41] Fifth, the trial judge’s failure to relate the evidence to the legal basis for liability as a party did not prejudice Fabian Vermont. The jury found him not guilty of attempted murder and there was really no evidence that could have exonerated him of aggravated assault.

[42] Finally, his counsel did not object to the trial judge’s charge on aiding and abetting.

[43] I would dismiss Fabian Vermont’s appeal.

F. Conclusion

[44] The trial judge erred in law by failing to instruct the jury on Carty’s position that he did not intend to kill Guy and by failing to set out the evidence supporting that position. I would dismiss Carty’s conviction appeal, but set aside the conviction for attempted murder and, on the consent of the parties, substitute a conviction for aggravated assault.[^2] I would reduce Carty’s sentence from 8½ years’ to 5½ years’ imprisonment, less 2½ years’ credit for pre-trial custody.

[45] The trial judge did not err in his instructions to the jury on party liability. I would dismiss Fabian Vermont’s appeal from his conviction for aggravated assault.

RELEASED: October 13, 2010 “John Laskin J.A.”

“J.L.” “I agree Robert J. Sharpe J.A.”

“I agree Gloria Epstein J.A.”

[^1]: Daniel Vermont appealed his conviction in writing. This court dismissed his appeal.

[^2]: Under s. 686(3) of the Criminal Code, the court dismisses the appeal, even though it sets aside the trial verdict.