COURT OF APPEAL FOR ONTARIO
MOLDAVER, MACPHERSON AND SIMMONS JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Tina Yuen
for the respondent
Respondent
- and -
BERNARD BRISSETT and CURLEW MOULTON
David E. Harris for the appellant Brissett Andras Schreck and Leslie Maunder for the appellant Moulton
Appellants
HEARD: April 4, 2001
On appeal from the convictions by Justice Moira Caswell, sitting with a jury, dated March 11, 1999.
1The appellant Curlew Moulton (“Moulton”) was convicted of the offences of attempted murder, aggravated assault and unlawful use of a firearm while committing an indictable offence in relation to the shooting of Fabian Graham. The appellant Bernard Brissett (“Brissett”) was convicted of aggravated assault and unlawful use of a firearm while committing an indictable offence in relation to the same incident. Moulton received a sentence of 11 years and Brissett received a sentence of 8 years. Both men appeal their convictions. Moulton did not appeal his sentence. Brissett originally appealed his sentence, but abandoned that component of the appeal before the appeal hearing.
2The factual background giving rise to the convictions can be briefly stated. Shortly after 10:00 p.m. on the evening of July 30, 1998, Fabian Graham was returning with his wife and two children from a wedding rehearsal to their home in Mississauga. As he approached the house, he saw two men walking away from it. He recognized one of the men as his friend “Angel”, the appellant Brissett. Graham called out to Brissett who told him to come over.
3Graham had known Brissett for several months and had borrowed $500 from him. Brissett had called him recently, saying he needed repayment of the loan. Graham had told him that he would return the money very soon. Accordingly, on the evening of July 30, Graham was not surprised to see Brissett; he assumed that Brissett was there to get the $500.
4Graham walked over to Brissett. The man accompanying Brissett was standing beside a large tree and was partially obscured by shadows. Brissett asked Graham if he had the money he owed him and Graham replied that he was going to ask his boss for it the next day. Brissett said “okay”. Immediately thereafter, Graham heard two things. Someone called out “Strings, shoot the boy and come” and the man beside the tree said “You take man for idiot, long time for you be dead”. The man beside the tree then pulled out a gun and fired three shots at Graham, hitting him in the chest, the left wrist and the upper left arm. Graham grabbed hold of Brissett and pulled him in front of his body as a shield. The shots stopped briefly and Graham released Brissett and ran away in a zigzag fashion. Three more shots were fired, all of which missed Graham. Graham saw Brissett and the shooter running to a nearby parking lot. He made it to his house. He was hosptialized and provided the police with a description of the events and his assailants the next day. He knew Brissett. Based on an anonymous telephone tip to Graham’s wife saying that the shooter was a man with the street name ‘Skelion’, not ‘Strings’, the police prepared a photo line-up which included Moulton. Graham identified Moulton as the shooter.
5Following Moulton’s arrest, the police placed P.C. Marc Andrews in Moulton’s cell. They were together for about 2½ hours during which Moulton introduced himself as ‘Skelion’ and said that he did not know the guy he was “supposed” to have shot, but that other people knew the victim and he was a “liar, pussy and a thief”, that the victim was here illegally and has had immigration problems because of a speeding ticket, that the shooting was not over $500, that the other guy in the shooting was a good friend of his (Moulton’s), but that he could not “hit the box” to say anything, and that he (Moulton) would beat the charges because the victim described the shooter as 6' tall whereas he was 6' 6" tall.
6Both men were convicted at their joint trial. They appeal on several grounds, some specific to their individual circumstances, and one ground relating to them jointly.
7Moulton contends that the trial judge erred by diminishing the significance of the discrepancy in the height and weight of the shooter and of Moulton. Graham’s initial description of the shooter was that he was about 6' tall and weighed about 130 lbs. Moulton is 6' 6" tall and weighs about 220 lbs.
8There is no doubt that this is a substantial discrepancy. However, we can see nothing in the trial judge’s charge to the jury that diminished the discrepancy. Her review of the law in relation to identification evidence was accurate. Her review of the actual identification evidence, from Graham and other witnesses, was full and fair. The trial judge drove home to the jury the frailties of identification evidence generally and the crucial factors on which they needed to focus in this case. We can find no fault in her charge to the jury on this issue. Accordingly, we would not give effect to this ground of appeal.
9Brissett contends that the trial judge improperly charged the jury on s. 21(2) of the Criminal Code. The Crown concedes this point in light of R. v. Simpson and Ochs (1988), 1987 CanLII 1 (SCC), 38 C.C.C. (3d) 97 (S.C.C.). However, we agree with the Crown that Brissett was not prejudiced by this error because, in the particular circumstances of this case, the trial judge’s charge on s. 21(2) did not realistically present the jury with an alternate route to conviction that differed from the route already in play under s. 21(1) of the Code.
10Both appellants challenge one component of the Crown’s closing address to the jury. They say that what the Crown said was improper and resulted in serious prejudice to both of them. We agree.
11During her closing address, Crown counsel attached great significance to the testimony of Constable Andrews. She began her review of his testimony with the statement: “Now, perhaps the most compelling evidence that Fabian Graham is correct about when he says that’s the man who shot me is the evidence that you heard from Constable Marc Andrews about the conversation that he had with Mr. Moulton on October the 16th, 1998.” After reviewing some of Constable Andrews’ testimony about his jail cell conversation with Moulton and suggesting the inferences the jury could draw from Moulton’s statements to Andrews, Crown counsel said:
Finally, Mr. Moulton says that the other guy in the shooting is his good friend but that he can’t hit the box to say anything. Well, we know from the cell phone Mr. Moulton and Mr. Brissett are friends, but why does Mr. Moulton know that the other guy, his good friend, can’t take the witness stand? What does Mr. Moulton know that his good friend, the other guy involved in the shooting might say? Might the other guy involved in the shooting be able to say that Mr. Moulton was the shooter? [Emphasis added.]
12With respect to Moulton, while it may have been proper for Crown counsel to invite the jury to infer that "the other guy in the shooting" was Moulton's friend Brissett, it was highly improper to invite them to speculate as to the reason why Brissett could not "hit the box". Brissett may have had many reasons for not wanting to testify apart from the one suggested by Crown counsel. For obvious reasons, no evidence was led on this point. Crown counsel's remarks, however, provided the jury with a neatly packaged, easy to understand reason for Brissett's failure to testify which, if accepted, was highly prejudicial to Moulton.
13In essence, under the guise of argument, Crown counsel invited the jury to use Brissett's silence as positive evidence of Moulton's guilt. This was improper, and in our view, it necessitates a new trial for Moulton even though his trial counsel [not Mr. Schreck or Ms. Maunder] did not object. Had an objection been made, the trial judge would no doubt have taken steps to remove the potential prejudice. A sharp warning to ignore, as speculative, the reasons suggested by Crown counsel for Brissett's failure to testify would probably have done the trick. As it is, absent such a warning, we cannot be sure that the jury did not act on Crown counsel's improper suggestion, nor can we be certain that the verdict would inevitably have been the same had the jury been instructed to ignore it. Accordingly, this is not a case where the curative proviso can safely be applied.
14With respect to Brissett, the trial judge unfortunately instructed the jury that Moulton's statement to the undercover officer could be used as evidence against Brissett if the jury was satisfied that Moulton and Brissett were acting in concert. On behalf of the Crown, Ms. Yuen concedes, correctly in our view, that the trial judge erred in this regard. She should have told the jury that Moulton's statement to the undercover officer was not admissible against Brissett and that it was to play no part in their assessment of Brissett's guilt or innocence.
15As it is, having been told that they could use Moulton's statement against Brissett if satisfied that Moulton and Brissett were acting in concert, the jury may well have concluded that Brissett told Moulton that he could “not hit the box” to say anything because he (Brissett) knew that he was guilty and that he would convict himself out of his own mouth if he testified. There is no telling whether the jury drew that inference. If they did, Brissett was seriously prejudiced.
16As indicated, the jury should have been told that Moulton's statement to the undercover officer was not evidence against Brissett and that it could not be used in their assessment of Brissett's guilt or innocence. That was not done and we cannot say with certainty that the jury did not use Moulton's statement for an improper purpose against Brissett, nor can we say that the verdict would necessarily have been the same had the jury been properly instructed. Accordingly, the curative proviso cannot be applied to save the error. Brissett is entitled to a new trial.
17In the result, the appeals from conviction are allowed, the convictions are set aside and a new trial is ordered.
RELEASED: May 23, 2001
“M. J. Moldaver J.A.”
“J. C. MacPherson J.A.”
“J. M. Simmons J.A.”```