R. v. Burns

R. v. Burns Collection Decisions of the Court of Appeal Date 1999-02-08 Docket numbers C29618 Judges Labrosse, Jean-Marc; Rosenberg, Marc; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990208 DOCKET: C29618 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. KEVIN J. R. BURNS (Appellant) BEFORE: LABROSSE, ROSENBERG and FELDMAN JJ.A. COUNSEL: Sharon Lavine, for the appellant Roger Pinnock, for the respondent HEARD: February 4, 1999 ENDORSEMENT [1] The principal ground of appeal against conviction is that the trial judge failed to adequately relate the theory of the defence in the evidence in support of the defence. The theory of the defence was simple. The appellant and his brother claimed that they were invited into the complainant's home and that he then attacked them. The appellant claimed he was either simply responding to a consensual fight or acting in self-defence. The trial judge adequately explained the elements of the offences and the defence of self-defence. In the course of that explanation, the trial judge referred to the evidence of the witnesses and made the burden of proof clear. [2] Accordingly, we would not give effect to this ground of appeal. [3] The appellant also argues that the trial judge erred in failing to give a limiting instruction with respect to his brother's guilty plea. The appellant's brother made it clear in his evidence that his plea related to his own actions. There was no risk in this case that the jury would take the brother's guilty plea as evidence of the appellant's guilt. It is therefore not surprising that trial counsel (not Ms. Lavine) did not request such a direction. [4] We are also satisfied that this case was not one where the failure to give a direction as to the use of the somewhat vague propensity evidence constituted misdirection. Again, we note that trial counsel did not request such a direction. [5] Accordingly, the appeal from conviction is dismissed. [6] As to sentence, there were grounds to distinguish between the sentence imposed on the appellant and the sentence imposed on his brother primarily because of the appellant's much more serious criminal record. However, on this record their roles in the offences were identical. The disparity between the four months, which was imposed on the brother, and over three years (taking into account pre-trial custody), which was imposed on the appellant, was unjustifiable and would give the appellant a sense of injustice. [7] It was conceded that the trial judge erred in making the lifetime weapons prohibition order under s. 109 of the Criminal Code, which was not in force at the time. It is conceded that a prohibition order under s. 100 for a period of ten years should be substituted. [8] Accordingly, leave to appeal sentence is granted, the sentence of imprisonment reduced to two years, and a prohibition order under s. 100 for a period of ten years substituted.