COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– TRI QUACH (Appellant)
BEFORE: MORDEN, WEILER and AUSTIN JJ.A.
COUNSEL: Heather McArthur, for the appellant Rick Visca, for the respondent
HEARD: May 31, 2000
On appeal from the conviction imposed by Sharpe J., sitting with a jury, dated June 26, 1997.
E N D O R S E M E N T
[1] The appellant appeals his conviction by a judge and jury on separate counts of trafficking in a narcotic on July 13th and 14th, 1993 contrary to s.4(1) of the Narcotic Control Act. He was acquitted of one count of trafficking on July 7, 1993.
[2] Of the four grounds of appeal raised, we called upon the respondent to respond only to the ground based on unreasonable verdict. We were satisfied that there was no merit in the other grounds of appeal.
[3] With respect to the first ground of appeal, the appellant submitted that the trial judge erred in not staying the charge relating to the July 14th offence, due to the loss or destruction of the MTP-208 identification card used in connection with the July 7th count. The jury acquitted the appellant of the July 7th count. We are satisfied that the appellant was not prejudiced by the loss of the card in relation to his ability to make full answer and defence with respect to the July 14th count.
[4] The second ground of appeal is that the trial judge did not correctly and adequately warn the jury of the dangers associated with the in-dock eyewitness identification of the appellant by the officers. The trial judge thoroughly charged the jury on the frailties of eyewitness identification evidence. In addition, he told the jury to consider the unfairness of the in-dock identification process and pointed out to the jury that no photo line-up or other procedure that would provide an objective test of the officer’s ability to recognize the accused had been used. The trial judge’s comments were a clear instruction to the jury on the essential weakness of the in-dock identification. We are satisfied it was adequate.
[5] The appellant’s third ground of appeal is that the verdicts were inconsistent because the jury had acquitted the appellant on the charge relating to the July 7th offence but convicted him with respect to the charge relating to the July 14th offence. In regard to this ground of appeal, the onus is on the appellant to show that no reasonable jury who had applied their minds to the evidence could have arrived at that conclusion. We are of the opinion that the appellant has not met this onus. The primary Crown witness with respect to both counts was Constable Demkiw. The submission appears to be that, if the jury had a reasonable doubt as to the accuracy of Constable Demkiw’s identification of the appellant on July 7th, they should similarly have had a reasonable doubt with respect to that identification on July 14th. The defence made something of the lost identification card in relation to the July 7th offence. In relation to the charge on July 13th, the appellant identified himself, using a student card, to two uniformed officers. Although Constable Demkiw was not involved on July 13th, Constable Gray was one of the officers involved in surveillance on that occasion. He was engaged in surveillance the very next day when the appellant walked right by him. The jury were satisfied with the identification of the appellant on July 13th. This intervening event was a factor which objectively differentiates the totality of the evidence relating to the July 14th offence from that relating to the July 7th offence.
[6] The last ground of appeal relates to unreasonable verdicts in relation to the July 13th and 14th offences. With respect to the July 13th offence, we are satisfied that there was evidence that reasonably supported the verdict. In particular, we would refer to: (i) the undercover officer, Canepa, was in contact with the appellant for an appreciable period of time; (ii) they were in very close proximity more than once during the transaction; (iii) this enabled Canepa to provide a distinctive physical feature relating to the appellant, his wide nostrils, that the jury could use as an objective feature of identification; (iv) Constable Browne had the appellant under practically continuous surveillance until he was stopped by two uniformed officers; (v) the description of the individual investigated by the uniformed officers matched the description of the trafficker; (vi) a TTC student card with the appellant’s name and picture was provided to the officers; (vii) the appellant’s address and date of birth were provided to the officers; (viii) Gray’s observations of the appellant, using binoculars, were of appreciable length; and (ix) the picture of the appellant on his arrest shown to officers Brons and Little by defence counsel during cross-examination, shows an individual with wide nostrils.
[7] Having regard to the totality of the evidence and, in particular, the surveillance evidence, we do not think that any possible discrepancy in the description of the appellant’s T- shirt by Officer Canepa with that of other officers is significant.
[8] With respect to the July 14th offence, alleged to have occurred the next day, we refer, in particular, to the following: (i) the undercover officer, Demkiw, had an appreciable period of contact with the appellant at very close range; (ii) the appellant walked right past Constable Gray on this occasion; and (iii) Gray had already observed the appellant the day before when he had an opportunity to make significant observations of him.
9For these reasons, we dismiss the appeal.
Signed: “J.W. Morden J.A.”
“K.M. Weiler J.A.” “Austin J.A.”