COURT OF APPEAL FOR ONTARIO

DATE: 20000602

DOCKET: C28158

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.

[9] For these reasons, we dismiss the appeal.

Signed: “J.W. Morden J.A.”
“K.M. Weiler J.A.”
“Austin J.A.”