COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Calamusa, 2016 ONCA 855

DATE: 20161115

DOCKET: C58960

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Calamusa

Appellant

Christopher Calamusa, acting in person

Dan Stein, appearing as duty counsel

Chris Chorney, for the respondent

Heard: November 2, 2016

On appeal from the conviction entered on December 19, 2013 by Justice Wolfram Tausendfreund of the Ontario Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] Mr. Calamusa was convicted of attempt murder, aggravated assault and assault with a weapon. At the outset of trial, he pleaded guilty to assault with a weapon. The charge of aggravated assault was stayed pursuant to Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. He was sentenced to seven and a half years’ imprisonment. With the assistance of duty counsel, he appeals against conviction. The sole ground of appeal is that the trial judge erred by failing to properly instruct the jury about certain bad character evidence admitted at trial.

[2] For the following reasons, we do not accept this submission.

A. Background in Brief

[3] The appellant and three others arrived at a house party. The four went upstairs. The appellant had not been invited to the party.

[4] One of the guests told the hostess that about a month earlier, the appellant, while masked, had held a knife to her throat and threatened her (“the prior knife incident”) and she recognized him by his voice.

[5] The hostess went upstairs and observed what she believed to be the use of illicit drugs by the appellant and the three others with him. She asked them to leave. The appellant said he would leave when he had finished with his drug activity. The hostess went back downstairs and told others about what she had seen upstairs. The complainant and two other young men at the party offered to help ensure that the appellant and his friends left.

[6] The complainant led the way with the other two following. The complainant was not armed. As the complainant got closer to the top of the stairs, the appellant leaned over the railing and struck him with a bottle, causing a gash to his forehead. He fell backwards down the stairs and realised that he had also been stabbed with a knife. The complainant suffered significant internal bleeding and was close to death, as a result of losing about half of his blood. The lower lobe of one of his lungs had to be removed.

[7] At the outset of the trial, the Crown sought permission to adduce evidence of the prior knife incident to provide context for why the hostess wanted the appellant out of the house. The defence conceded that evidence of the appellant’s drug use at the party was admissible.

[8] The trial judge ruled that the evidence of the appellant’s drug use at the party was admissible solely for the purposes of explaining why he and his friends were asked to leave the home. In terms of the prior knife incident, he was concerned that its prejudicial impact would outweigh its probative value and ruled that limited reference could be made to it. He stated that the Crown could lead evidence that the prior knife incident involved an altercation with the appellant on one side and one or more of the guests at the house party on the other side and that the altercation involved the appellant holding a large knife as part of the altercation (the “Ruling”).

[9] A witness was called and, pursuant to s. 715.1 of the Criminal Code, a video of her testimony was played which, through inadvertence, did not conform to the Ruling. Instead of limiting the evidence to the fact that the prior knife incident involved the appellant holding a large knife as part of the altercation, it included that a machete had been held to a person’s throat.

[10] The defence moved for a mistrial. The trial judge dismissed the motion and said that he would give a mid-trial instruction on the matter, which he did. No further instruction on the matter was included in the charge.

[11] The appellant argues that the mid-trial instruction was deficient. He says that deficiency and the absence of a further instruction in the charge created prejudice warranting a new trial.

B. Analysis

[12] In our view, the mid-trial instruction was adequate and the absence of a further instruction in the charge was not fatal.

[13] In R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at paras. 63-65, Watt J.A. explains that whereas a corrective instruction relates to evidence that is inadmissible, a limiting instruction applies to evidence that is admissible for one purpose, but not for another.

[14] A corrective instruction was necessary in respect of that part of the video evidence that a machete had been held to a witness’ throat because the Ruling made that evidence inadmissible. In his mid-trial instruction, the trial judge said the following:

Now what I want [to] say to you now is this, and that is whatever happened at that [prior] altercation is not a matter that you need to trouble yourself with. It was simply mentioned to you to have you better understand the evidence as it flows. You are not here to make a decision about what happened and what didn’t happen in that [prior knife incident]; that’s not your job.

And to the extent that any references were made in the evidence by [the witness] about particulars of that altercation, you are to disabuse yourself of that evidence, disregard it altogether, treat it as nothing more than the fact that there was an altercation between some of these young people, including the [appellant], about a month before this incident; nothing more and nothing less.

[15] That is, the trial judge instructed the jury to disregard the particulars of the altercation. In so doing, he enjoined the jury from considering the inadmissible evidence that the appellant held a knife to a person’s throat during the prior knife incident. Accordingly, in our view, the instruction was adequate.

[16] The trial judge’s failure to include a further instruction on this matter in the charge must be considered in context. After the trial judge rejected the defence motion for a mistrial, the Crown undertook to not discuss again the prior knife incident. That undertaking was honoured.

[17] In the end, the prior knife incident played a very limited role in the trial and was a minimal aspect of the overall evidence. While the trial judge made no mention of it in the charge, it does not appear that the defence requested a further limiting instruction in the charge or objected to its absence in the charge. The absence of a limiting instruction, standing alone, does not necessarily create reversible error: R. v. A.W.B., 2015 ONCA 185, 322 C.C.C. (3d) 130, at para. 59. In the circumstances, we do not view the trial judge as having fallen into reversible error by failing to include an additional limiting instruction in the charge.

C. Disposition

[18] Accordingly, the appeal is dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“M.L. Benotto J.A.”