COURT OF APPEAL FOR ONTARIO

DATE: 20000719

DOCKET: C32594

RE: HER MAJESTY THE QUEEN (Respondent) –and– RONALD
ALBERT MASSE (Appellant)

BEFORE: CATZMAN, WEILER and FELDMAN JJ.A.

COUNSEL: Philip Zylberberg, for the appellant
Peter Brauti, for the respondent

HEARD: June 16, 2000

On appeal from the conviction imposed by Whalen J. dated February
5, 1999 and on appeal from the sentence imposed by Whalen J.
dated February 23, 1999

E N D O R S E M E N T

[1] The appellant was convicted of various counts of trafficking
and conspiracy to traffic in canabis resin, possession of the
proceeds of crime over $1000, breach of probation and fraud over
$1000. He was sentenced to 26 months imprisonment. This is an
appeal as to conviction only.

[2] The appeal in this case centres on the admittedly improper
cross-examination by the Crown. The nature of some of the
questions called for the accused to explain why it was that the
undercover officer was lying when the accused had only met him on
one occasion. The appellant and his co-accused, Currie, were
repeatedly required to explain why their version of events was
different from that of the undercover officer and whether they
were accusing the undercover police officer of lying or being
mistaken. When defence counsel objected, the trial judge did not
sustain the objection but rather reinforced the Crown’s right to
take this approach by suggesting that the accused might be asked
“if he knows the difference between mistakes and lies.”

[3] The trial judge in his charge to the jury said of Currie’s
evidence that she accused the officer of lying and that Masse
said the officer was mistaken in his version of the transaction.
Near the end of his charge, the trial judge reviewed the position
of the defence and of the Crown. He said that Masse “asks you to
find the police evidence unreliable, incredible, and
manipulated.” Of the Crown position, he said:

The Crown pointed out that the police had no
‘axe to grind’ in undertaking this operation.
They were just doing their jobs in an
undercover operation which was often the only
way one could detect and investigate drug-
related crime. They were experienced
officers, had no reason to lie or fabricate.

[4] The trial judge’s characterization of Crown counsel’s
position exacerbated an earlier portion of the judge’s charge
when he said:

The accused has an interest in the result of
the trial, and you may fairly bear that in
mind in assessing the accused’s evidence.

[5] Such a comment, when coupled with the Crown’s submissions,
tended to overemphasize the accused’s interest and to erode the
presumption of innocence. See R. v. Trombley (1998), 126 C.C.C.
(3d) 495 (Ont. C.A.); R. v. G.F.P. (1994), 1994 8721 (ON CA), 89 C.C.C. (3d) 176; R.
v. Murray (1997), 1997 1090 (ON CA), 115 C.C.C. (3d) 225 (Ont. C.A.); R. v.
Stanners, [1995] O.J. No. 668 (Ont. C.A.).

[6] At the end of his charge, the jury was given a written copy
of it. The written version of the charge said of Mr. Masse’s
evidence:

He said the officer was ‘mistaken’ in his
version of the transaction.

[7] The use of quotation marks in the written charge could
reasonably have been understood by the jury to mean something
other than a genuine mistake.

[8] While an isolated improper incident may not be sufficient to
impugn the verdict, in the present case, the cumulative effect of
the improprieties referred to resulted in serious prejudice to
the appellant and an unfair trial.

[9] This is yet another in the line of cases when this court has
felt compelled to pass upon the partisan and unfair approach
taken by the Crown. See: R. v. Henderson (1999), 44 O.R. (3d)
628 (C.A.); R. v. Arthur F. (1996), 1996 10222 (ON CA), 30 O.R. (3d) 470; R. v.
Vandenberghe (1995), 1995 1439 (ON CA), 96 C.C.C. (3d) 371 (C.A.).

[10] The improprieties could have affected the jury’s perception
of the accused’s credibility on all the charges.

[11] The appeal is allowed, the verdicts are set aside and a new
trial is ordered.

Signed: “M.A. Catzman J.A.”
“K.M. Weiler J.A.”
“K. Feldman J.A.”