COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Jefferson, 2014 ONCA 434
DATE: 20140529
DOCKET: C53916
Rosenberg, MacPherson and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
James Jefferson
Appellant
Ariel Herscovitch and Janani Shanmuganathan, for the appellant
Shawn Porter, for the respondent
Heard: May 26, 2014
On appeal from the conviction entered on March 17, 2011 and the sentence imposed on April 14, 2011 by Justice Donald J. Gordon of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant, James Jefferson, was convicted on March 17, 2011, following a trial before D.J. Gordon J. of the Superior Court of Justice, sitting with a jury, of discharge firearm, possession of a firearm while prohibited, and four counts of breach of probation.
[2] On April 14, 2011, the trial judge imposed a global sentence of 10 years’ imprisonment less 51 months for pre-trial custody.
[3] The appellant appeals his convictions on three grounds. He also appeals his sentence.
The conviction appeal
[4] The appellant’s principal ground of appeal is that the trial judge erred by concluding that there was no air of reality to the appellant’s claim of self-defence and, therefore, by refusing to put sections 34(2) and 37 of the Criminal Code to the jury.
[5] We do not accept this submission. The evidence showed that the appellant walked out onto the road and stopped in front of the vehicle in which the complainant was a passenger. He pulled out his gun and shot the complainant through the car window. The vehicle was not stopped and the complainant was still inside it. The bullet hit the complainant in the arm.
[6] There is no doubt that there was a history of animosity and even violence between the two former friends who had a previous history of joint criminal activity. As well, on the day of the shooting the men had been engaged in a continuing altercation for up to 40 minutes.
[7] Nevertheless, in our view, the trial judge was clearly correct in reaching the conclusion that there was no air of reality that the appellant believed, on reasonable grounds, that he could not preserve himself from death or serious bodily harm except by shooting the complainant. Even if the relevant time frame is viewed as only the few seconds from the moment the appellant recognized the complainant in the approaching vehicle (and not the 40 minutes or so of the continuing altercation between the two men), the appellant had other options: he could have tried to walk or run away, or held his gun and warned the complainant, or fired a warning shot. He did none of these things. Moreover, as the trial judge noted, during his cross-examination the appellant agreed with Crown counsel that he had other options but chose the option of shooting the complainant.
[8] The appellant’s second ground of appeal is that the trial judge erred by allowing the Crown to tender evidence about the appellant’s prior disreputable conduct to establish animus and motive. The disreputable conduct in issue was the appellant’s and complainant’s convictions for drug offences two years previously and the effect these convictions had on their relationship, namely, a highly negative effect as both men viewed the police raid on their shared premises as being the result of the other man ratting’ or snitching’.
[9] We disagree. In our view, the trial judge properly found that the 2007 drug bust was sufficiently intertwined with the 2009 shooting to justify the jury hearing it to the limited extent sought by the Crown. Both the complainant and the appellant testified at the trial. Realistically, it is difficult to imagine their testimony not including their description of the event two years earlier that had ruptured their friendship.
[10] Third, the appellant submits that the trial judge erred in finding that the appellant’s statement to the police was made voluntarily.
[11] The police interview of the appellant took place from 8:28 a.m. to 12:42 p.m. on February 17, 2009. The interview was recorded except for the period between 10:28 and 11:17 a.m. when the tape stopped because it had been programmed for only a two hour period. This lapse was an accident because the interview officer was from the Cambridge office, where tapes were programmed for eight hours, but was conducting an interview in the Kitchener office, where the practice was programming for two hours. Once he realized the mistake, the officer did his best later that afternoon to summarize his recollection of the missing part of the interview.
[12] We see no basis for interfering with the trial judge’s conclusion that the appellant’s statement was voluntary. There is nothing in the police officer’s or the appellant’s testimony about the missing 49 minute period to call into question this ruling. The reality is that the appellant said nothing about the shooting incident in the interview; as the trial judge said: “Mr. Jefferson was successful in maintaining his right to silence.”
The sentence appeal
[13] The appellant contends that the trial judge erred in imposing a global sentence of 10 years’ imprisonment. He says that the trial judge improperly attempted to set a new range for firearm-related offences in the Kitchener-Waterloo region. The appellant points to these passages in the trial judge’s reasons:
Criminal activity involving illegal drugs and violence resulting from the use of firearms, particularly handguns, has increased in Waterloo over the past several years… In my view, the sentencing range must be subjected to continual review… While I recognize the submissions of Crown and defence counsel relied to a considerable extent on prior decisions I take the view the sentencing range ought to be increased at the upper end… In my view, the minimal sentence I can impose globally is ten years.
[14] We are not persuaded by this submission. Although the trial judge favoured an increase in the range of sentences for offences involving violence and firearms, in the end he imposed a ten year sentence for the offences of discharging a firearm with intent to wound and possession of a firearm while prohibited. This was inside the 7 to 11 year range for serious firearm offences set by this court in R. v. Bellissimo, 2009 ONCA 49, at para. 3. Moreover, the trial judge explicitly stated that “Mr. Jefferson’s crime and his circumstances put him at the upper range of the existing range.”
[15] The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.
“M. Rosenberg J.A.”
“J.C. MacPherson J.A.”
“P. Lauwers J.A.”