COURT OF APPEAL FOR ONTARIO

DATE: 20000926

DOCKET: C31002

RE: HER MAJESTY THE QUEEN (Respondent) v. THOMAS BRENNAN (Applicant/Appellant)

BEFORE: DOHERTY, CHARRON and MACPHERSON JJ.A.

COUNSEL: William J. Parker, Q.C.

for the appellant

Graham Zoppi and David Lepofsky

for the respondent

HEARD: September 14, 2000

On appeal from the conviction imposed by the Honourable Mr. Justice Theodore Matlow, sitting with a jury, dated October 16, 1998 and the sentence imposed dated November 4, 1998.

E N D O R S E M E N T

[1] The appellant raises two issues in oral argument.

[2] Counsel for the appellant concedes that the Crown was entitled to adduce the appellant’s statement made to his friend, O’Leary, in the course of the Crown’s cross-examination of the appellant and counsel concedes that the statement was admissible both on the question of credibility and as substantive evidence.

[3] In the course of the conversation with his friend, the appellant told his friend to keep to himself information relating to the timing of a phone call between the friend and the appellant on the night of the homicide.

[1] Counsel submits that this statement suggesting the appellant was trying to conceal relevant evidence was potentially very damning evidence. He argues that the trial judge erred in highlighting this evidence during his charge to the jury and in failing to specifically caution the jury against considering that one piece of evidence in isolation from the rest of the evidence, including the appellant’s explanation for the conversation.

[2] We do not agree that this evidence was potentially as damning or important in the case as counsel now contends. The circumstantial evidence pointing to the appellant was cogent and was the primary thrust of the Crown’s case against the appellant. We also do not agree that the trial judge gave undue emphasis to this comment made by the appellant to his friend, O’Leary. The trial judge mentioned the statement in the course of his instructions and outlined the respective positions of the Crown and defence as they related to the statement. The trial judge also made it clear that the jury had to decide the case based on all of the evidence. We find no error in the trial judge’s treatment of this small piece of the large evidentiary puzzle presented at trial.

[3] The second ground of appeal challenges the trial judge’s decision that he would not give the jury a written copy of his recharge. The trial judge gave the jury a written copy of his initial instructions. No issue was taken with this procedure on the appeal. Counsel for the appeal submits that it was incumbent on the trial judge to give the jury a written copy of the instructions on the recharge so as to leave the jury with a written copy of all of the instruction.

[4] In our view, the issue cannot turn simply on whether the jury received a written copy of every word of the trial judge’s instructions, but rather must turn on the resulting effect of the procedure followed by the trial judge. In this case, the two corrections to the charge to the jury made in the recharge involved minor straightforward factual matters. The trial judge clearly and specifically instructed the jury as to the changes to be made to the written material they had in hand when they heard the recharge. In these circumstances, we see no error in the procedure followed by the trial judge.

[5] With respect to the appeal from sentence, we can see no error in principle in the sentence imposed by the trial judge and cannot, therefore, interfere with that sentence.

[6] The appeal from conviction is dismissed and the appeal from sentence is dismissed.

“Doherty J.A.”

“Louise Charron J.A.”

“J.C. MacPherson J.A.”