Court of Appeal for Ontario

Date: 2018-07-17 Docket: C64699

Judges: Benotto, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

David Willmore Joseph Rockey Appellant

Counsel

Appellant: David Willmore Rockey, acting in person Duty Counsel: Erin Dann Respondent: Lorna Bolton

Heard and released orally: July 12, 2018

Appeal Information

On appeal from the conviction entered on November 3, 2017 and the sentence imposed on February 14, 2018 by Justice Patrick Hurley of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Mr. Rockey was convicted after a trial by jury of driving while disqualified and failing to stop for the police. He was sentenced to 2 ½ years in custody on each offence, to be served concurrently. He has effectively served 18 months of that sentence. He appeals both his conviction and his sentence.

[2] Mr. Rockey's conviction appeal is based on the trial judge's charge to the jury. He takes issue with three aspects of the charge.

[3] First, he argues that the trial judge erred by failing to direct the jury that they cannot use Mr. Rockey's silence as evidence of his guilt. This ground of appeal relates to the testimony of two police officers and Mr. Rockey's partner, Ms. Theobald, that when the police arrived at Mr. Rockey's home shortly after the alleged offence, Mr. Rockey was on the phone with his lawyer and refused to come to the door.

[4] In the circumstances the trial judge was not compelled to direct the jury on the prohibited use of silence. Defence counsel did not object to this evidence or to the jury charge relating to this event. It would appear that Defence counsel chose to use evidence about this event tactically to suggest that it tainted the officers' identification evidence because they assumed Mr. Rockey was guilty because he had called his lawyer. We view the failure of counsel to request a direction about Mr. Rockey's silence as reflecting his recognition that this charge was not required in the circumstances. The focus of this event was clearly on the fact that Mr. Rockey had called a lawyer, not that he failed to speak to the police.

[5] Second, Mr. Rockey argues that the trial judge erred in his direction relating to the proper use of prior inconsistent statements made by Ms. Theobald. We disagree. The trial judge gave a proper limiting direction on the use of prior inconsistent statements. It was not necessary for him to remind the jury of the prohibited use of prior inconsistent statements when, shortly after giving this limiting direction he reviewed Ms. Theobald's evidence in his charge. The jury charge was brief and the direction on the prohibited use of prior inconsistent statements was clear.

[6] Third, Mr. Rockey urges that the trial judge erred by telling the jury that they may draw an adverse inference against alibi evidence offered by Ms. Theobald, because of her refusal to speak to the police. In her able submissions on Mr. Rockey's behalf, duty counsel submits that such a direction was inappropriate, given that Ms. Theobald explained during cross-examination that she would not speak to the police on the advice of counsel. The jury was not required to accept that evidence. It was appropriate for the trial judge to explain to the jury that they were permitted to consider Ms. Theobald's refusal to be interviewed in evaluating her alibi evidence. We would therefore reject Mr. Rockey's conviction appeal.

[7] We would, however, grant him leave to appeal from sentence and allow his sentencing appeal. The trial judge did not take the principle of totality into account. He determined an appropriate sentence for each offence separately, and then added the sentences together. Although referred to during submissions, his analysis does not make reference to the principle of totality.

[8] The trial judge did not give effect to evidence relating to the hardship that custody represents for Mr. Rockey, given that, for security reasons, he serves his time in segregated custody.

[9] Finally, the trial judge failed to analyse the impact that should be given to evidence about Mr. Rockey's mental health and rehabilitative efforts.

[10] We therefore set aside the sentence and substitute a sentence of time served.

M.L. Benotto J.A. G.T. Trotter J.A. David M. Paciocco J.A.