Her Majesty the Queen v. Rose [Indexed as: R. v. Rose]

53 O.R. (3d) 417

[2001] O.J. No. 1150

Docket No. C34056

Court of Appeal for Ontario

Charron, Feldman and MacPherson JJ.A.

April 3, 2001

Criminal law--Evidence--Expert evidence--Accused charged with trafficking in narcotics--Trial judge erred in permitting police officer to give expert opinion evidence on whether driver of car or person who gets into car is more likely to have drugs in his possession--Police officer's prior involvement in six crack cocaine purchases did not qualify him as expert--Opinion irrelevant and highly prejudicial.

Criminal law--Evidence--Hearsay--Crown witness gave statement to police before trial--Crown counsel improperly elicited witness' testimony at trial by putting parts of her statement to her--Statement constituted inadmissible hearsay--Statement also inadmissible for purpose of bolstering witness' testimony to extent that it was consistent with that testimony--Error compounded when Crown counsel put entire contents of witness' statement to police officer who took statement during examination-in-chief of police officer.

Criminal law--Trial--Conduct of Crown--Crown counsel elicited important evidence from Crown witnesses through leading questions--Crown counsel cross-examined Crown witness without having her declared adverse in interest--Crown conducted abusive cross-examination of accused in which he forced accused to defend irrelevant aspects of his lifestyle--Crown counsel repeatedly called upon accused to comment on credibility of Crown witnesses--Conduct of Crown deprived accused of fair trial--Appeal from conviction allowed and new trial ordered.

The accused was charged with trafficking in cocaine and possession of cocaine for the purpose of trafficking. B was the target of a police investigation and was known to the police as a drug trafficker. The accused was arrested when the police observed B entering a motor vehicle driven by the accused. The evidence at trial revealed that B had been observed entering the same vehicle on one, or possibly two, prior occasions. The vehicle was owned by D, a friend of the accused. It was the Crown's theory that the accused, at the time of his arrest, had just finished selling drugs to B. B testified for the Crown and supported that theory. The accused was convicted. He appealed.

Held, the appeal should be allowed.

Crown counsel at trial elicited important information from B through leading questions. The entire examination-in-chief read more like a cross-examination. This was highly improper, particularly where B was the primary Crown witness and the questions concerned crucial and contentious matters. The impropriety of Crown counsel's approach was further heightened by the fact that B's testimony was highly suspect since it was obtained in return for a stay of charges as against him. The trial judge erred in overruling an objection by defence counsel and further erred in failing to intervene when Crown counsel continued in this fashion. Defence counsel's failure to renew his objection was not an impediment to raising this ground of appeal. In view of the trial judge's failure to appreciate that Crown counsel's questions were indeed leading at the time the objection was made, defence counsel may well have thought that any further objection would be futile.

Crown counsel at trial called D, the owner of the vehicle in question, in order to establish a link between the accused and the car. Crown counsel presented D with the written statement she had given to the police, and proceeded to relate the information given in the statement in the form of questions to the witness. By prefacing each question with a specific reference to the contents of the statement, he was clearly suggesting the answer to the witness. This was improper. At one point, Crown counsel sought leave to cross-examine D on the basis that she was "somewhat adverse in interest". The trial judge correctly ruled against Crown counsel. Nevertheless, Crown counsel immediately launched into a cross-examination of D. The trial judge drew from D's testimony precisely the inference that the Crown was seeking, namely that the accused was the driver of the car that had been observed by the police on each occasion in question.

As in the case of B, the bulk of D's testimony was elicited through the use of leading questions. Further, her statement constituted inadmissible hearsay and, to the extent that it was consistent with her testimony in court, was further inadmissible for the purpose of bolstering her credibility. It should not have been presented in evidence in the manner in which it was done. This error was further compounded by Crown counsel eliciting the entire contents of D's statement later in the trial during the course of the examination-in-chief of the police officer who took the statement. While Crown counsel was entitled to elicit from the police officer evidence relating to the taking of the statement, the contents of the statement should not have been elicited through the police witness.

Crown counsel conducted an improper and abusive cross- examination of the accused. Counsel transgressed the limits of relevance in questioning the accused generally on his lifestyle, from the manner of his dress to the fulfillment of his fiscal responsibilities. The accused was not on trial for his general lifestyle and it was unfair to place him in a position where he had to defend against vague and irrelevant suggestions of improper conduct. Further, Crown counsel repeatedly called upon the accused to comment on the credibility of his accusers. Questions of this nature suggest that there is some onus on an accused person to provide a motive for the Crown witness' testimony and, as such, they undermine the presumption of innocence. Crown counsel's cross- examination of the accused further undermined the fairness of the trial.

The trial judge erred in permitting one of the police witnesses to give an expert opinion on "the difference between the person getting into the car and the person in the car with respect to trafficking". The Crown was seeking to establish that it was more likely that the accused was the seller of the drugs than B. The police officer's prior involvement in six crack cocaine purchases formed no basis to qualify him as an expert, nor did the question relate to any identifiable field of expertise. The police officer's opinion was irrelevant and, because it related to the crucial issue in the case, was highly prejudicial.

The trial judge made sarcastic comments about defence counsel, apparently prompted by defence counsel's not unreasonable comment that he had never seen a prosecution conducted in this fashion. The trial judge's remarks were unwarranted. They were not triggered by any improper conduct on the part of defence counsel. However, they did not give rise to a reasonable apprehension of bias. An informed observer, present throughout the proceedings, could reasonably conclude that the accused did not have a fair trial. However, an informed observer would base that conclusion on Crown counsel's innumerable transgressions of the rules of procedure rather than on an apprehension of bias on the part of the trial judge.

APPEAL from a conviction for trafficking in cocaine and possession for the purpose of trafficking.

Cases referred to Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 9 N.R. 115, 68 D.L.R. (3d) 716 (sub nom. Canadian Arctic Gas Pipeline Ltd., Re); R. v. Coffin, Reference Re, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, 114 C.C.C. 1, 23 C.R. 1; R. v. Cole, [1999] O.J. No. 1647 (C.A.); R. v. F. (A.) (1996), 1996 CanLII 10222 (ON CA), 30 O.R. (3d) 470, 1 C.R. (5th) 382 (C.A.); R. v. G. (A.), 2000 SCC 17, 2000 S.C.C. 17, [2000] 1 S.C.R. 439, 184 D.L.R. (4th) 238, 252 N.R. 272, 143 C.C.C. (3d) 46, 32 C.R. (5th) 45, affg (1998), 1998 CanLII 7189 (ON CA), 130 C.C.C. (3d) 30, 21 C.R. (5th) 149 (Ont. C.A.) (sub nom. R. v. A.G.); R. v. Masse (2000), 2000 CanLII 5755 (ON CA), 134 O.A.C. 79 (C.A.); R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193, 218 N.R. 1, 477 A.P.R. 241, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1; R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242, 29 C.R. (4th) 143 (C.A.) [Leave to appeal to S.C.C. refused (1994), 20 O.R. (3d) xv, 1994 CanLII 19084 (SCC), 35 C.R. (4th) 402n]; R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 13 O.A.C. 89, 26 C.C.C. (3d) 207 (C.A.); R. v. Vandenberghe (1995), 1995 CanLII 1439 (ON CA), 96 C.C.C. (3d) 371 (Ont. C.A.)

Lorne Sabsay, for appellant. Beverly J. Wilton, for respondent.

The judgment of the court was delivered by

[1] CHARRON J.A.:--The appellant Evon Rose was convicted of trafficking in cocaine and possession for the purpose of trafficking and sentenced to 19 months in jail. He appeals both conviction and sentence. The conviction appeal is based on several grounds, most of which relate to Crown counsel's conduct of the trial. At the conclusion of the hearing, we allowed the appeal, set aside the convictions and ordered a new trial for reasons to follow. These are those reasons.

[2] For the purpose of this appeal, the facts can be briefly stated.

[3] The charges arose as a result of police surveillance observations of an alleged drug transaction between the appellant and Noel Beaudry. The target of the police investigation was Noel Beaudry, a person known to the police as a drug trafficker. On September 5, 1998, Beaudry was observed entering a motor vehicle driven by the appellant. The motor vehicle was on the fringes of an area known to the police for its high level of crack cocaine selling activity. Shortly after Beaudry entered the motor vehicle, the police stopped it. The appellant, who had his hands on the steering wheel and was backing into the police officer's car, was taken out of the vehicle and arrested. After the arrest, money and crack cocaine were found inside the vehicle.

[4] The evidence at trial revealed that Beaudry had been under surveillance for some time before September 5th and had been observed entering the same vehicle on one, or possibly two, prior occasions. The appellant was identified as the driver of the vehicle entered by Beaudry on the two prior occasions. The appellant was not otherwise known to the police at the time. The vehicle driven by the appellant on the day of his arrest was owned by Diana Dawe, a friend of the appellant.

[5] Beaudry was initially charged jointly with the appellant. However, on the first date set for trial, Beaudry agreed to give a statement to the police and testify against the appellant. Consequently, the appellant's trial was put over for the purpose of taking this statement. On the return date, the trial proceeded against the appellant only and Beaudry was called as the Crown's main witness. Dawe and a number of police officers also testified for the Crown.

[6] It was the Crown's theory at trial that the appellant, at the time of his arrest, had just finished selling drugs to Beaudry. Beaudry testified in accordance with this theory. The appellant also testified. It was his position that Beaudry was the trafficker and that he was merely an accommodation buyer picking up some drugs for a friend. The trial judge rejected the appellant's evidence, found that the appellant was the owner of the drugs located in the motor vehicle and that he was the one selling drugs to Beaudry on the occasion in question. The appellant was convicted accordingly.

[7] The appellant raises numerous grounds of appeal against conviction. He submits that:

(a) Crown counsel improperly proved the prosecution's case through the use of leading questions put to the Crown's main witness Beaudry;

(b) the trial judge erred in failing to direct himself on the dangers of accepting Beaudry's evidence;

(c) Crown counsel improperly cross-examined his own witness Diana Dawe and elicited hearsay declarations of Diana Dawe from one of the police witnesses;

(d) Crown counsel's cross-examination of the appellant was unfair and prejudicial;

(e) the trial judge erred in allowing the Crown to elicit opinion evidence from one of the police witnesses without proof of any expertise;

(f) Crown counsel improperly elicited inadmissible evidence of prior discreditable conduct of the appellant; and

(g) the trial judge's disparaging remarks directed at defence counsel gave rise to a reasonable apprehension of bias.

[8] In my view, there is merit in many of the appellant's arguments. The cumulative effect of these errors unfortunately resulted in an unfair trial and a new trial must be ordered. I will deal with each ground of appeal in turn.

1. Proof of the Crown's case through the use of leading questions

[9] A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non-contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: Reference Re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, 114 C.C.C. 1 at pp. 211-12 S.C.R., p. 22 C.C.C.

[10] The transcript in this case presents numerous transgressions of this rule by Crown counsel. The appellant relies mainly on the examination-in-chief of the Crown's main witness, Noel Beaudry. Several excerpts are reproduced below. The questions that are most offensive are highlighted [in italics].

Q. All right, and do you recall when -- when and how you first met Mr. Rose?

A. No.

Q. And what's your connection with Mr. Rose?

A. What do you mean, connection?

Q. Well, what do you do with Mr. Rose?

A. I talk to him.

Q. What else do you do with him?

A. That's about it.

Q. Does he supply you with crack cocaine?

A. Sometimes.

Q. Now, my information is that the police had set up surveillance on yourself and on the 19th of August you got into a motor vehicle with Mr. Rose. The 21st of August you got into a motor vehicle with Mr. Rose.

[11] At this point, defence counsel objected to the leading questions. Crown counsel maintained that his questions were not leading. His submission to the trial judge, in answer to defence counsel's objection, somewhat exemplifies the general approach Crown counsel adopted in questioning not only Beaudry, but all of the Crown witnesses:

[CROWN]: Well, this is information I have and I'm asking this witness to either confirm or deny it. If he confirms it, it will become a fact. If he denies it, it won't become a fact. I don't think it's leading at all. It's information I have and I'm asking him to confirm it or deny it. It's not suggesting the answer.

[12] The judge ruled that the question was still incomplete and not objectionable at that point in time. He invited defence counsel to renew his objection if he so wished after hearing the whole question. Crown counsel continued to question the witness much in the same fashion and defence counsel did not renew his objection. Counsel for the appellant relies more particularly on the following excerpts from the examination-in- chief in support of his contention that Crown counsel proved his case through the use of leading questions:

Q. Mr. Beaudry, I started advising you that my information is that the police were conducting surveillance and on the following dates they saw you get into a motor vehicle which Mr. Rose was driving and those dates were August 19, August 21, September 4, and September 5. Did you, in fact, meet Mr. Rose on those dates?

A. If it's right there, I guess so. I don't mark it in a book, you know, it's just --

Q. You didn't mark it. How many times have you purchased crack cocaine from Mr. Rose? You don't have to give me an exact number, give your best estimate or you can give me a range.

A. Three, four times.

Q. Three or four times, and do you recall when those three or four times would have been?

A. No.

Q. Now, on the 6th of September -- or the 5th of September, you were in an automobile with Mr. Rose and the police stopped that automobile?

A. Yeah.

Q. You remember that?

A. Yeah. I don't remember the date, but I remember when they stopped us.

Q. And there were police cars in front and back of Mr. Rose's car?

A. Something like that.

Q. And do you recall what kind of automobile Mr. Rose was driving or drives?

A. A black car.

Q. You don't know the make?

A. No.

Q. The license number? Has it been -- all the times that you've purchased crack cocaine from Mr. Rose, has he been in the same motor vehicle?

A. Yeah.

Q. And that's the black car you just indicated?

A. Black car, yeah.

Q. Now, when the -- on the 5th of September when the police officers stopped the motor vehicle, you were in Mr. Rose's automobile, were you not?

A. Yeah.

Q. Mr. Rose was in the automobile?

A. Yeah.

Q. Correct, and who was driving the automobile?

A. Mr. Rose.

Q. Mr. Rose, and you were in which seat, the front passenger seat?

A. Yeah. The front seat.

Q. Was there anyone else in the car?

A. No.

Q. All right, and what was your purpose for being in that automobile on that date and time, why were you there?

A. To tell you the truth, I don't even know because it happened so fast. I didn't have time to say nothing or nothing, you know.

Q. Well, were you going to purchase crack cocaine from Mr. Rose on that date?

A. I guess I would have tried.

Q. Did you have money with you?

A. Yeah. Of course, it was my rent money, but . . . .

Q. Well, I -- is it fair to say that every time you had gotten into Mr. Rose's automobile in the past you purchased crack cocaine from him?

A. Maybe two out of three.

Q. Two out of three. Did you have any crack cocaine with you at that time when you got into Mr. Rose's car on the 5th of September?

A. No.

Q. You had money with you though?

A. Yeah.

Q. Would you agree with me that it's -- it seems that you were there to buy crack cocaine from him?

A. I could have.

Q. Other than meeting Mr. Rose to buy crack cocaine from him, have you and Mr. Rose ever done anything else together? Do you go to movies together, go to see friends together?

A. No, we just went for coffee.

Q. Coffee and when you go for coffee does that end up -- is that when you have a conversation about whether --

A. Sometimes.

Q. -- he has crack cocaine?

A. Sometimes no. All depends.

Q. How often would you have gone for coffee with Mr. Rose?

A. I don't know. Four times, three times.

Q. Okay, as many times as you've bought crack cocaine from him?

A. Maybe a little bit less.

Q. Now, when the police stopped the automobile they found some crack cocaine in the automobile?

A. That's what they claim.

[13] In my view, Crown counsel's questions to Beaudry were clearly suggestive of the answers. Indeed, the entire examination-in-chief reads more like the cross-examination of a witness. This was highly improper, particularly in these circumstances where Beaudry, as the trial judge himself stated in his reasons, was "the primary Crown witness" and the questions concerned crucial and contentious matters. The impropriety of Crown counsel's approach is further heightened by the fact that Beaudry's testimony, obtained as it was in return for a stay of the charges against him, was already highly suspect. The manner in which his testimony was elicited could only further undermine its probative value.

[14] Consequently, I am of the view that the trial judge erred in ruling against the defence's initial objection and further erred in failing to intervene when Crown counsel continued in this fashion. I do not view defence counsel's failure to renew his objection as an impediment to raising this ground of appeal. In view of the trial judge's failure to appreciate that Crown counsel's questions were indeed leading at the time the objection was made, defence counsel may well have thought that any further objection would be futile.

[15] Virtually all of the incriminating evidence given by Beaudry was elicited through leading questions. Given the circumstances in which he agreed to testify against the appellant, this irregularity raises a real concern that the testimony was proffered, not for its truth, but for the purpose of meeting the expectations of the Crown and the police. The trial judge ultimately accepted some of Beaudry's evidence "as being cogent and vital". Consequently, the finding of guilt may be based, at least in part, on highly questionable evidence.

2. Trial judge's failure to direct himself on the dangers of accepting Beaudry's evidence

[16] As indicated earlier, Beaudry's evidence, quite apart from the manner in which it was elicited, was highly suspect given that he was an accomplice who agreed to testify in return for a favour from the prosecution. The appellant submits that it was incumbent upon the trial judge to direct himself on the dangers of accepting Beaudry's testimony.

[17] Although the trial judge did not expressly advert to the danger of accepting Beaudry's evidence, he was well aware of the circumstances under which Beaudry's cooperation was obtained. While it would have been preferable if the trial judge had adverted to these circumstances in his detailed reasons, I am not satisfied that he failed to take this into account in making his findings of credibility. A trial judge's reasons are not meant to reflect the entire reasoning process and should not be considered in that manner. I would therefore not give effect to this ground of appeal.

3. Crown counsel's cross-examination of his own witness, Diana Dawe

[18] It was part of the Crown's theory that the appellant had met with Beaudry not only on the day of his arrest but also on prior occasions when Beaudry was observed entering the same or a similar car. Crown counsel called Diana Dawe, the owner of the vehicle, in order to establish a link between the appellant and the car in question.

[19] The examination-in-chief of this witness was conducted in a most unusual fashion. Immediately after having the witness identify herself and confirm that she lived with her son and the appellant Mr. Rose, Crown counsel presented the witness with the written statement she had given to the police. He then proceeded to relate the information given in the statement in the form of questions to the witness. By prefacing each question with a specific reference to the contents of the statement, he was clearly suggesting the answer to the witness. For reasons stated earlier, this was improper. The following excerpt exemplifies the approach that was taken.

Q. Alright, now Constable Mills met you at your residence, you sat at the kitchen table and he asked you if Mr. Rose was driving your Toyota Camry, and he was using that car, was he not?

A. I lent it, I lended [sic] the car out to him.

Q. Alright, and how long had you owned that car?

A. Oh gosh, not, not even a year yet I don't think.

Q. Alright, and who purchased the car?

A. Me.

Q. And you signed the ownership over to Mr. Rose?

A. Actually I signed the own--, back of the ownership because the car was gonna be sold, that's the only reason why I signed that.

Q. And you told Constable Mills that you had another motor vehicle . . .

A. . . . Right . . .

Q. . . . And that time, but it was in the shop?

A. Yeah.

Q. And you told Constable Mills that, you stated Evon helped to buy the car, it was just in my name, is that . . .

A. . . . Well it was my car, he just helped me purchased the purchase the car [sic] . . .

Q. . . . I see . . .

A. . . . Because I didn't have the money, all the money to buy it, so he helped me out.

Q. So part of the purchase price was yours and . . .

A. . . . Right . . .

Q. . . . Part of the purchase price was his?

A. But the car was mine, bought for me.

Q. And Constable Mills asked you, who drives it and who owns it now as far as you're concerned and you stated, "He drives it and I signed it over to him, so as far as I know, Evon said he's going to sell it."

A. Yeah, he . . .

Q. . . . Is that correct?

A. He, both of us were looking for someone to buy the car, he was looking, I was looking, we both drove the car, I lent him the car when he needed it, I drove the car when I needed it.

Q. And then Constable Mills asked you, when was the last time you drove it and you said about a couple of weeks ago?

A. Right.

Q. And when Constable Mills, although it's not in this statement, did he ask you about Mr. Rose's situation with respect to residing with you at Oakville Avenue?

A. He asked me if he lived there.

Q. Yes?

A. And I did say, yes.

[20] At this point, Crown counsel, seemingly in response to defence counsel rising to object, sought leave to cross-examine the witness on the basis that she was "somewhat adverse in interest". The trial judge correctly ruled that he had "not heard anything yet that would get [counsel] through that threshold". Despite this ruling, Crown counsel immediately launched into a cross-examination of the witness. The following brief excerpt shows the manner in which counsel continued to question his own witness:

[CROWN COUNSEL]: Q. And prior to using the car, you said you used it about two weeks before the officer attended at your residence?

A. Well I don't know exactly when the last time I used it.

Q. Well that's, that's what you told him, so would you agree with me that your memory at that time would have been more accurate than it is today?

A. Well the question, when they asked me, I didn't know what about, I didn't know why they were questioning me about my car, I was like, I didn't know why they were questioning me about the car, period.

Q. Well, did you lie to him then?

A. I didn't lie, I just, they didn't explain why they were questioning me about the car.

Q. Well the question he asked you and that you read, "When was the last time you drove it?" And you stated, "About a couple of weeks ago."

A. Right, because I didn't know why they were asking, they were scaring me.

Q. Was that accurate?

A. Well I, I don't know, because I can't remember the last time I drove the car.

Q. Well my question to you is on September 5, 1998, your memory would have been a lot better as to when you last used the automobile than it is today, would you agree with me on that?

A. Right.

Q. Now then, the last time you drive [sic] the automobile, did you have any crack cocaine in the automobile?

A. No.

Q. Do you use crack cocaine?

A. Absolutely not.

Q. So, and you'd agree with me that if there was any crack cocaine found in that automobile on September 5, 1998, you did not put it there?

A. Absolutely not.

[21] Counsel for the respondent (who was not counsel at trial) concedes that Crown counsel improperly cross-examined his own witness but submits that no substantial harm was occasioned thereby because the trial judge ultimately rejected Dawe's testimony. I do not agree with this submission. While counsel is correct that the trial judge rejected Dawe's testimony as "incredible", it is apparent from his reasons that he still drew an inference from it that was harmful to the appellant. The trial judge commented on Dawe's evidence as follows:

Another Crown witness was called and it was a Diana Dawe. I have to make the overall comment assessing the credibility test I earlier referred to that her evidence was evasive, was less than candid. She was easily led by the Defence in cross- examination and overall, her evidence was marked by an intent to assist the accused in any way she could, rather than her oath to tell the truth.

She was the owner of the vehicle that the accused was operating on September 5th. Her evidence indicated that the vehicle was clearly at the accused's disposal. She had minimally co-operated with the police in providing some information early in the investigation, but attended at the trial and expanded upon her evidence in a way that was intended to minimize the accused's linkage to the vehicle.

She told the Court that she had a loose financial arrangement for sharing her residence with the accused. She told the Court the accused had absolutely no association with drug use during her year of friendship with him and that she knew nothing about him ever using drugs.

She volunteered that she had on one time, and then decided several times, lent her vehicle to a black man from Toronto, a man similar in age and complexion to the accused. She told the court that this was a relationship of extreme interpersonal closeness that she was maintaining with the Toronto gentleman on the nights Mr. Rose was not home.

The Defence theory is that this person, known as Tony, must be the driver of the Camry on the other observations, drug transactions, punitive drug transactions made on September 4th and on the earlier dates.

The evidence of Diana Dawe is so incredible to be not worthy of belief and again, I have used the credibility tests outlined in The Queen v. White, The Queen v. Covert, The Queen v. W.D.

What the Court is left with is that the accused did use her vehicle, it was a Camry, it was dark-coloured, it was at his virtual disposal.

(Emphasis added)

[22] Hence, the trial judge drew from Dawe's testimony precisely the inference that the Crown was seeking, that the appellant was the driver of the car that had been observed by the police on each occasion in question.

[23] The improper manner in which incriminating evidence was elicited from this witness adds further to the concern expressed earlier with regard to the examination of Beaudry. As in the case of Beaudry, the bulk of Dawe's testimony was elicited through the use of leading questions. Further, her statement constituted inadmissible hearsay and, to the extent that it was consistent with her testimony in court, was further inadmissible for the purpose of bolstering her testimony. It follows that it should not have been presented in evidence in the manner in which it was done. This error was further compounded by Crown counsel eliciting the entire contents of Dawe's statement later in the trial during the course of the examination-in-chief of the police officer who took the statement. While Crown counsel was entitled to elicit from the police officer evidence relating to the taking of the statement, the contents of the statement should not have been elicited through the police witness.

4. Crown counsel's cross-examination of the appellant

[24] Counsel for the appellant submits that the cross- examination of the appellant by Crown counsel was abusive, prejudicial, and resulted in an unfair trial. First, it is submitted that Crown counsel questioned the appellant on his character and lifestyle in a manner that went far beyond the bounds of relevancy and legitimate credibility impeachment. Second, it is submitted that, on several occasions, Crown counsel improperly called upon the appellant to comment on the credibility of the Crown witnesses. Finally, it is submitted that Crown counsel's approach was generally accusatory and calculated to demean the appellant.

[25] The cross-examination was relatively brief, covering about 30 pages of transcript. The gist of it is summarized in the appellant's factum as follows:

Crown counsel began his cross-examination of the appellant by leading evidence of a conviction for assault, which was entered, in another court on the first day of this trial. Crown counsel then cross-examined the appellant on the following matters: (i) how long the appellant had been engaged in the DJ business (which was another of the appellant's jobs); (ii) the appellant's level of education; (iii) whether the appellant had filed income tax returns for the last three years; (iv) what the appellant's income had been in 1996; (v) who purchased the jacket the appellant was wearing in court; (vi) about the source of the appellant's ring and other jewelry; (vii) what kind of dwelling the appellant lives in; and (viii) the first and last names of the appellant's present girlfriend. The trial judge permitted these lines of questioning after objection from the defence.

Crown counsel then turned his examination topic to Sam, the friend who had introduced the appellant to Beaudry. The appellant said he didn't know Sam's last name, which prompted the following reaction from Crown counsel:

Q. I'm telling you you're a liar.

A. Alright . . .

THE COURT: . . . Mr. . . .

A. . . . So does [sic] all the police officers that come up here, that one sitting right there.

THE COURT: [Crown counsel], accusations like that usually result in retrials.

CROWN COUNSEL: Do you own a car, Mr. Rose?

A. Do I own a car?

Q. Yes?

A. No.

Q. Do you own a house?

A. No.

Q. Do you own any furniture?

A. Yeah, I own furniture.

Q. Do you have investments?

A. No.

After some questions about the appellant and Mr. Beaudry Crown counsel's cross-examination continued:

Q. So when the police state that they saw you driving that Camry automobile on at least four occasions with Beaudry, are they inaccurate, or are they lying?

A. They're lying.

Q. They're lying?

A. Yeah.

Q. This is a conspiracy against you, is it?

A. Yes, it is.

Q. Okay, well you heard Beaudry's evidence, he said that you were his supplier, he bought from you?

A. Well yeah, I, I heard his evidence.

Q. Is he lying?

A. He, yes, he lying [sic].

With regard to the accusation that the appellant made a statement upon his arrest the cross-examination proceeded as follows:

Q. He asked you where the drugs are and he says you replied in the car?

A. That didn't happen either.

Q. You didn't say that?

A. No.

Q. Then he says, I asked where and you said all over it?

A. That didn't happen.

Q. You didn't say that?

A. No.

Q. So the police are making this up?

A. Lying.

Near the conclusion of the cross-examination the following questions were asked:

Q. So your position then, Mr. Rose, is that you're not a drug dealer.

A. No.

Q. Right?

A. No.

Q. You don't use crack cocaine?

A. No.

Q. You've never, other than September 5, when you were going to purchase from Beaudry, you've never purchased drugs from Beaudry before?

A. No.

Q. That you've never sold crack cocaine to Beaudry?

A. No, no, no, I was, no.

Q. And you were sent by Sam with 40 bucks to pick up a 40 piece of crack?

A. Yeah, from Beau--

Q. . . . Pardon me?

A. From Beaudry, yes.

Q. From, from Beaudry?

A. Yes.

Q. And then take it back to Sam?

A. Yeah.

Q. And you've never sold crack cocaine before?

A. No.

Q. That's your . . .

A. . . . That's what I'm saying.

Q. You're a fine upstanding citizen?

A. Yes.

Q. That's your position?

A. Well, try to be.

Q. Are you having some difficulties?

A. If I'm what?

Q. Having some difficulties with being a fine upstanding citizen?

At which point defence counsel objected.

[26] I agree with the appellant's contention that the cross- examination was improper. Crown counsel, of course, is entitled to conduct a vigorous cross-examination of an accused and, at times, permissible lines of inquiry will necessarily reflect adversely on the appellant's character. However, in this case, when the cross-examination is considered in the context of the issues in the case, it is my view that Crown counsel transgressed the limits of relevance in questioning the appellant generally on his lifestyle, from the manner of his dress to the fulfillment of his fiscal responsibilities. The appellant was not on trial for his general lifestyle and it was unfair to place him in a position where he had to defend against vague and irrelevant suggestions of improper conduct.

[27] Further, this court has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers: see, for example, R. v. Cole, [1999] O.J. No. 1647 (C.A.); R. v. F. (A.) (1996), 1996 CanLII 10222 (ON CA), 30 O.R. (3d) 470, 1 C.R. (5th) 382 (C.A.); R. v. Masse (2000), 2000 CanLII 5755 (ON CA), 134 O.A.C. 79 (C.A.); R. v. Vandenberghe (1995), 1995 CanLII 1439 (ON CA), 96 C.C.C. (3d) 371 (Ont. C.A.); R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242 (C.A.). Crown counsel did this repeatedly during the course of the cross-examination. Questions of this nature suggest that there is some onus on an accused person to provide a motive for the Crown witness' testimony and, as such, they undermine the presumption of innocence.

[28] Consequently, I must conclude that Crown counsel's cross-examination of the appellant further undermined the fairness of this trial.

5. Expert opinion evidence from police witness

[29] One of the police witnesses was asked by Crown counsel to give his opinion on "the difference between the person getting into the car and the person in the car with respect to trafficking". It is clear from the transcript that the Crown, by this question, was seeking to establish that it was more likely that the appellant was the seller of the drugs than Beaudry.

[30] Following a voir dire, the witness was permitted to give expert opinion evidence on this question. The officer testified that, in his opinion, "the person who is getting into the car [in this case, Beaudry] does not have the drugs, but is able to get the drugs and the person who is arriving in the vehicle [the appellant] will be the supplier of those drugs for the purpose of trafficking."

[31] In my view, there was no basis whatsoever to receive this opinion evidence. The police officer's prior involvement in six crack cocaine purchases formed no basis to qualify him as an expert, nor did the question relate to any identifiable field of expertise. The police officer's opinion was irrelevant and, because it related to the crucial issue in the case, was highly prejudicial.

6. Evidence of other discreditable conduct of the appellant

[32] It is submitted that the Crown improperly elicited evidence from Beaudry and Dawe of previous acts of alleged drug dealing or drug associations involving the appellant.

[33] In my view, the questions put to Beaudry with respect to other encounters with the appellant, quite apart from their form, were relevant and admissible. Some of the questions put to Dawe are more questionable. However, in light of my conclusion on the other grounds of appeal, I do not find it necessary to deal with this aspect of Dawe's testimony.

7. Trial judge's disparaging remarks about defence counsel

[34] The appellant submits that the trial judge made disparaging and unwarranted comments about defence counsel that jeopardized the appearance of impartiality and the fairness of the trial.

[35] At one point during the trial, a police officer testified that certain documents were found in the console of the vehicle with the appellant's name on it. He was then asked by Crown counsel whether that indicated anything to the officer "about control over the physical automobile". Defence counsel objected to the question on the basis that it called for an opinion. After hearing from both counsel, the trial judge rejected defence counsel's objection and commented as follows:

THE COURT: . . . The defence objection is in two parts, one is a general objection, an expression of surprise at the way this particular matter has been conducted and a resuscitation of defence counsel's history as defence counsel and the fact that this is the first time he has seen a witness used in this fashion, all of which does not constitute an objection.

So I do not find any problem with the objection insofar as the comments of defence counsel constitute an objection.

(Emphasis added)

[36] Later during the course of defence counsel's cross- examination of another police witness on the continuity of an exhibit, Crown counsel objected on the basis that "once the officer who sees the exhibit puts it in the envelope, we don't have to call anybody else."

[37] In response to this objection, and without calling upon defence counsel for his response, the trial judge stated as follows:

THE COURT: [Defence counsel] has already told us that he has never seen a case run in the way in which the prosecution is running this case here.

So I am assuming that [defence counsel] is going to provide us with some argument and some case law and he is going to assist you in properly presenting a case, [Crown counsel].

And because [defence counsel] is such an experienced counsel, as he has indicated to us, I am going to let him go on and I am waiting, and waiting with great interest, as these arguments are developed.

You know, not only is it Mr. Rose's trial, it is an opportunity for us all to be educated on how things are done. So I am going to let [defence counsel] go on and on as long as he wants, and I am sure that is what [defence counsel] wants because that is the way he is proceeding.

[38] Counsel for the appellant submits that the trial judge's comments were sarcastic and totally unwarranted. He concedes that the trial judge's comments, in and of themselves, would not mandate a new trial. However, he submits that they do give rise to a reasonable apprehension of bias when combined with the errors discussed earlier.

[39] The Supreme Court of Canada in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 118 C.C.C. (3d) 353, at p. 501 S.C.R., p. 367 C.C.C. confirmed the test for determining whether there was a reasonable apprehension of bias. The court adopted the words of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, 68 D.L.R. (3d) 716:

[W]hat would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

[40] The Supreme Court went on in R. v. S. (R.D.) to note the importance of viewing the impugned conduct in light of the whole trial, and emphasized the strong presumption of impartiality that applies to trial judges. See also R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207, 13 O.A.C. 89 (C.A.) where this court indicated that the question to be decided when dealing with allegations of impartiality is not whether the accused was in fact prejudiced by the interventions of the trial judge but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. More recently, in R. v. G. (A.) (1998), 1998 CanLII 7189 (ON CA), 130 C.C.C. (3d) 30, 21 C.R. (5th) 149 (Ont. C.A.), this court approved and applied the reasoning in the above-noted cases to a matter in which bias was alleged.

[41] I agree with the appellant that the trial judge's remarks were unwarranted. They were not triggered by any improper conduct on the part of defence counsel. Rather, the trial judge's remarks appear to have been prompted by defence counsel's comment that he had never seen a prosecution conducted in this fashion. The trial judge may have been annoyed at what could be taken as an oblique reference to his own conduct of the proceeding, but given the manner in which Crown counsel was in fact conducting the case, defence counsel's observation is hardly surprising.

[42] However, on examination of the record as a whole, I am not satisfied that the test for demonstrating a reasonable apprehension of bias has been met. I agree that an informed observer, present throughout the proceedings, could reasonably conclude, as this court did, that the appellant did not have a fair trial. While the trial judge's failure to intervene undoubtedly contributed to this unfortunate result, it is nonetheless my view that an informed observer would base his conclusion on Crown counsel's innumerable transgressions of the rules of procedure rather than on an apprehension of bias on the part of the trial judge.

Disposition

[43] It is for these reasons that the appeal was allowed, the convictions set aside and a new trial ordered.

Appeal allowed.