DATE: 20060505

DOCKET: C40152

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. SEAN CLYKE (Appellant)

BEFORE:

MCMURTRY C.J.O., DOHERTY and CRONK JJ.A.

COUNSEL:

Maureen McGuire

for the appellant

Steve Coroza and Nora Lapp

for the respondent

HEARD:

RELEASED ORALLY:

April 20, 2006

April 20, 2006

On appeal from the convictions entered by Justice MacKenzie, sitting with a jury, of the Superior Court of Justice dated March 1, 2001.

E N D O R S E M E N T

[1] This is an appeal from conviction and affects two charges of importing. The appeal raises two issues.

[2] The appellant did not testify. It is difficult to see how the trial judge’s instructions referable to how the jury should assess the credibility and reliability of the testimony of witnesses could possibly have prejudiced the appellant.

[3] The appellant did give a videotaped statement to police. The Crown introduced this statement into evidence. Both the defence and the Crown relied on the statement. The Crown argued that it demonstrated knowledge of the conspiracy to import drugs into Canada, while the defence argued that it showed knowledge of a conspiracy to smuggle something into Canada, but not narcotics. The trial judge reviewed parts of the videotape at different stages of his instructions to the jury. He made it clear to the jury that it should carefully review the tape in the course of its deliberations so it could make its own assessment of the tape, and that it should not feel bound by any observations made by witnesses or counsel concerning what was said on the tape, or the appellant’s demeanour while the videotape was being made. In our view, the instructions in relation to the jury’s assessment of the videotape were complete and not unfair to the appellant.

[4] In any event, even if the instructions referable to how the jury should assess a witness’s credibility could be understood as applicable to the videotaped statement, the instructions did not suggest that what the accused said was automatically suspect because of his stake in the outcome of the trial. Nor did they suggest that anything that the accused said should for that reason, be subject to special scrutiny.

[5] The instructions that a witness’s interest in the outcome or motive may affect that witness’s credibility were general and equally applicable to all witnesses. The instruction did not isolate the statements of the accused or suggest that they were worthy of special scrutiny. Indeed, the reference relied on by the appellant to the potential motive of witnesses, by its own terms, could not have applied to the accused’s videotaped statement.

[6] The trial judge’s description of the position of the appellant in the part of his charge headed “The Position of the Defence” was so brief as to be unhelpful. It must be said that his description of the position of the Crown was equally brief and unhelpful. However, throughout the rest of his thorough charge, the trial judge made it clear that the appellant’s defence was that he did not know that there were drugs in the bag. This was a single issue trial. The defence of lack of knowledge had to be crystal clear to this jury by the time it retired to deliberate. No objection was taken by counsel for the appellant to the trial judge’s failure to describe the position of the defence in more detail.

[7] In our view, the appeal must be dismissed.

“R.R. McMurtry C.J.O.”

“Doherty J.A.”

“E.A. Cronk J.A.”