Her Majesty the Queen v. Swaby

[Indexed as: R. v. Swaby]

54 O.R. (3d) 577

[2001] O.J. No. 2390

Docket No. C34189

Court of Appeal for Ontario

Feldman, MacPherson and Sharpe JJ.A.

June 21, 2001

Criminal law--Weapons--Restricted weapon in motor vehicle --Elements of offence--Section 91(3) of Code should be interpreted to exclude possibility of conviction for involuntary act--Crown required to prove that coincidence of occupancy of vehicle and accused's knowledge of weapon in vehicle was attributable to voluntary conduct on part of accused--Accused must have reasonable opportunity to remove himself or weapon from vehicle after acquiring knowledge of presence of weapon in vehicle--Trial judge erred by failing to properly advise jury in response to question regarding elements of offence--Conviction quashed--Criminal Code, R.S.C. 1985, c. C-46, s. 91(3).

Criminal law--Trial--Charge to jury--"Vetrovec" warning --Chief Crown witness pleaded guilty to charges arising out of same facts as charges against accused--Witness had criminal record and was subject of immigration proceedings--Trial judge erred in failing to instruct jury on use it could make of witness' criminal record--Conviction quashed.

The police followed a car driven by the accused in which J was a passenger. The car stopped, J ran into a nearby backyard, and the accused ran off. The police found a loaded, unregistered, restricted weapon in the backyard. Both men were arrested shortly afterwards. The accused was charged with a number of offences, including being an occupant in a motor vehicle knowing there was present an unlicensed restricted weapon, contrary to s. 91(3) of the Criminal Code. J pleaded guilty to possession of a handgun and received a sentence of time served. He had a criminal record and was facing immigration proceedings. He was the main Crown witness at the accused's trial. In charging the jury, the trial judge did not give a Vetrovec warning, nor did he make any references to the use the jury could make of J's criminal record. The accused testified that he had no knowledge of the gun. After deliberating for several hours, the jury asked the trial judge for an explanation of "the time frame of being aware of the weapon". The trial judge responded by reading the count from the indictment and then again reading s. 91(3) of the Code to the jury, and stating: ". . . [the accused] must be proven to have been aware of the existence of the weapon while both he and [J] were in that vehicle." The accused was convicted of the offence under s. 91(3) and acquitted on all other counts. He appealed.

Held, the appeal should be allowed.

Per Sharpe J.A. (Feldman J.A. concurring): To establish guilt on the s. 91(3) count, the Crown had to prove the coincidence of the two essential elements of the offence as defined in that section, namely, occupancy of the vehicle and the accused's knowledge of the weapon. The Crown also had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the accused. Although s. 91(3) contains no explicit defence, it must be interpreted so as to exclude the possibility of conviction for what would amount to an involuntary act. If the accused acquired knowledge of the weapon while the vehicle was in motion, he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle. If the accused only acquired knowledge of the weapon at the point when J was leaving the vehicle, he would be entitled to an acquittal. The accused was entitled to a fuller explanation from the trial judge of the necessary elements of the offence, dealing more thoroughly with the circumstances in which guilt would follow if knowledge of the weapon were acquired after the vehicle was set in motion.

The trial judge erred in failing to instruct the jury on the use it could make of J's criminal record. J's credibility was very much under attack, and was weakened not only by his criminal record but also by the suggestion that his irregular immigration status would be further threatened by his involvement with illegal weapons and that he was shifting blame for the gun to the accused, having received an unusually lenient sentence on his plea of guilty.

Per MacPherson J.A. (dissenting): The accused testified that he was unaware that there was a gun in the car until after the charges were laid. In view of the accused's position at trial, the trial judge's response to the jury's question about the time frame of knowledge of the weapon was precise and appropriate.

The trial judge's failure to instruct the jury on the use it could make of J's criminal record was intentional. Trial judges have considerable discretion in determining whether and how to instruct juries in this area, and there was no reason to interfere with the trial judge's exercise of discretion in this case.

APPEAL from a conviction for being an occupant of a vehicle knowing that an unlicensed restricted weapon was present.

Cases referred to R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, 13 O.R. (3d) 452n, 104 D.L.R. (4th) 180, 154 N.R. 245, 82 C.C.C. (3d) 310, 21 C.R. (4th) 277 (sub nom. R. v. Griffith); R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, 182 D.L.R. (4th) 513, 250 N.R. 103, 141 C.C.C. (3d) 321, 30 C.R. (5th) 201; R. v. Phillips (1996), 1996 CanLII 8291 (ON SC), 138 D.L.R. (4th) 121, 108 C.C.C. (3d) 514 (Ont. Gen. Div.); R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, 119 D.L.R. (4th) 464, 171 N.R. 360, 93 C.C.C. (3d) 1, 34 C.R. (4th) 1; R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, 100 D.L.R. (4th) 624, 151 N.R. 104, 79 C.C.C. (3d) 449, 19 C.R. (4th) 194 Statutes referred to Canadian Charter of Rights and Freedoms Criminal Code, R.S.C. 1985, c. C-46, ss. 91(3), 94(3) [as am.] Authorities referred to Mewett, A.W., and M. Manning, Mewett & Manning on Criminal Law, 3rd ed. (Toronto: Butterworths, 1994) Stuart, D., Canadian Criminal Law: A Treatise, 3rd ed. (Toronto: Carswell, 1995) Williams, G., Textbook of Criminal Law, 2nd ed. (London: Stevens & Sons, 1983)

David E. Harris, for appellant. Brian McNeely, for respondent.

[1] SHARPE J.A. (FELDMAN J.A. concurring):-- Acting on a confidential tip, police officers followed a car driven by the appellant in which William Johnson was a passenger. The car stopped and Johnson ran into a nearby backyard. The appellant drove off. Both men were arrested shortly thereafter. The police found a loaded, unregistered, restricted handgun in the backyard.

[2] Johnson, the main Crown witness at the appellant's trial, pleaded guilty to possession of the handgun and received a sentence of time served (42 days). Johnson had a significant criminal record and was the subject of immigration proceedings. The appellant was tried before a judge and jury on an indictment containing eight counts. He was convicted of being an occupant in a vehicle knowing there was present an unlicensed restricted weapon, but acquitted on all other counts.

[3] The central issues on this appeal are whether the trial judge properly answered the jury's question regarding the time at which the appellant knew of the gun, and whether the trial judge should have instructed the jury on the use it could make of Johnson's criminal record in assessing his credibility.

Facts

[4] The appellant faced two sets of charges. He was charged with possession of an unregistered restricted weapon, possession of prohibited ammunition, possession of a weapon for a purpose dangerous to the public peace, being an occupant of a motor vehicle knowing there was present a restricted weapon for which no occupant held a permit permitting possession, and possession of a firearm with serial number defaced. The second set of charges involved an allegation that on the day after his arrest, the appellant threatened Johnson. He was charged with attempt to obstruct justice, threatening death and threatening bodily harm.

[5] The Crown's case largely rested on the evidence of Johnson. He testified that the gun belonged to the appellant. Johnson denied any knowledge of its existence until the two were in the appellant's car. He swore that as they were driving, the appellant became alarmed by the attention of the police. The appellant told Johnson that he had a gun. The appellant stopped the vehicle, handed Johnson the gun, and instructed him to dispose of it in a backyard.

[6] The appellant testified that he had no knowledge of the gun. It was his evidence that Johnson was the one who became concerned by the attention the police were paying to the vehicle. The appellant thought Johnson might have had illegal drugs. He followed Johnson's instructions where to drive and stopped the vehicle at Johnson's request. When Johnson bolted from the vehicle, the appellant drove off. It was his evidence that he only learned of the gun after his arrest.

[7] The appellant was acquitted of all charges, with the exception of the charge of being an occupant of a motor vehicle knowing there was present a restricted weapon for which no occupant held a permit permitting possession. On that count, he was convicted and given a six-month sentence. He appeals both conviction and sentence.

Issues

The appellant raises a number of grounds of appeal. I find it necessary only to deal with two of those grounds:

(1) Did the trial judge err in his answer to jury questions relating to the occupant of motor vehicle charge?

(2) Did the trial judge err in failing to instruct the jury that Johnson's criminal record could be used to impugn his credibility?

Analysis

Issue 1: Did the trial judge err in his answer to jury questions relating to the occupant of motor vehicle charge?

[8] The charging provision under which the appellant was convicted was s. 91(3) of the Criminal Code, R.S.C. 1985, c. C- 46:

91(3) Every one who is an occupant of a motor vehicle in which he knows there is a restricted weapon is, unless some occupant of the motor vehicle is the holder of a permit under which he may lawfully have that weapon in his possession in the vehicle, or he establishes that he had reason to believe that some occupant of the motor vehicle was the holder of such permit,

(a) guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) guilty of an offence punishable on summary conviction.

[9] This provision was repealed shortly after the incident giving rise to these charges and replaced by what is now s. 94 of the Criminal Code (S.C. 1995, c. 39, s. 139). The new provision removes the reverse onus feature of s. 91(3) and adds a further defence in the following terms.

94(3) Subsection (1) does not apply to an occupant of a motor vehicle who, on becoming aware of the presence of the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition in the motor vehicle, attempted to leave the motor vehicle, to the extent that it was feasible to do so, or actually left the motor vehicle.

[10] In his charge to the jury, the trial judge dealt very briefly with this count. He read the jury the terms of s. 91(3) and instructed them that the count "alleges that Mr. Swaby was in possession of the same weapon while he was an occupant of a motor vehicle". It is common ground that this instruction was incorrect and, indeed, that it favoured the appellant, as possession was not a necessary element of the s. 91(3) offence.

[11] After the jury had been deliberating for several hours, it asked the following question: "Please explain the charge, number 3, [the s. 91(3) offence] with regard to the time frame of being aware of the weapon." When the trial judge read the question in the presence of the jury, the foreperson explained as follows: "Yes, it is awkwardly worded but basically it is questioning the amount of time that someone would have to have anything to be considered in possession or to be aware of its existence."

[12] The trial judge answered the question by reading the count from the indictment and then again reading s. 91(3) to the jury. He offered the following instruction: "You must be satisfied on the evidence according to the standard that I mentioned to you that Mr. Swaby must be proven to have been aware of the existence of the weapon while both he and Mr. Johnson were in that vehicle."

[13] The foreperson pursued the matter, saying: "Anything further that you can explain would be useful." The trial judge said that he could think of nothing further to add but indicated that if further clarification was required, the jury could pose another question after it retired.

[14] Again the foreperson pursued the matter asking: "So then the time is not necessarily that critical?" The trial judge's answer was as follows: "He must know of the existence of the weapon. You must be satisfied on the evidence you have heard in total throughout the trial but with respect to this particular question that you have asked, it must be proven by the Crown to have known of the existence of that weapon in that vehicle while both he and Mr. Johnson were in it."

[15] The jury retired and the appellant's trial counsel objected to the trial judge's answer, submitting that the jury "should also be told that if Mr. Swaby became aware of the existence after he got into the vehicle with Mr. Johnson that they can only find him to be in possession of it if he allowed or if he consented to it being in the car". The trial judge stated that he did not disagree with that proposition but that it was his habit "to answer juror's questions and not to implant other matters that they haven't asked about into their minds". He refused to give any further instructions. The jury returned with its verdict shortly thereafter.

[16] In my view, the trial judge erred in failing to give the jury a more complete answer to the questions it posed. The questions indicated that the jury was concerned about when the appellant had learned of the existence of the gun. Although the appellant testified that he did not know of the gun's existence until after he was arrested, it certainly was open on the evidence for the jury to conclude that the appellant learnt of its existence sometime after he and Johnson had embarked on their journey in the appellant's vehicle.

[17] To establish guilt on this count, the Crown had to prove the coincidence of the two essential elements of the offence as defined by s. 91(3), namely occupancy of the vehicle and the appellant's knowledge of the weapon. In my view, it is implicit as well that the Crown had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the appellant. Although the section under which the appellant was charged contained no explicit defence in the terms of the present s. 94(3), it must be interpreted so as to exclude the possibility of conviction for what would amount to an involuntary act.

[18] Voluntary conduct is a necessary element for criminal liability: see A.W. Mewett & M. Manning, Mewett & Manning on Criminal Law, 3rd ed. (Toronto, Butterworths: 1994) at pp. 129-32; Glanville Williams, Textbook of Criminal Law, 2nd ed. (London, Stevens & Sons: 1983) at pp. 146-54. The requirement for voluntary conduct applies even if the provision creating the offence does not expressly require one: see D. Stuart, Canadian Criminal Law: A Treatise, 3rd ed (Toronto, Carswell: 1995) at p. 94: "There is no general Code stipulation that the guilty act be voluntary. The requirement exists by virtue of judicial reasoning . . .". As explained by McLachlin J. in R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, 79 C.C.C. (3d) 449 at p. 17 S.C.R., p. 458 C.C.C.: ". . . the act must be the voluntary act of the accused for the actus reus to exist."

[19] If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. If a passenger tells the driver that the passenger has a gun, it cannot be the case that the driver is immediately guilty. Should the driver immediately stop the vehicle and tell the passenger to leave, the driver would have known of the gun while he was an occupant of the vehicle, but he would have done all the law could expect. The driver's occupancy of the vehicle would have coincided with his knowledge of the gun, but it could not be said that the coincidence of knowledge and occupancy amounted to voluntary conduct on the part of the driver. It is the conduct of the driver following the coincidence of occupancy and knowledge that counts, and if the driver acts with appropriate dispatch to get either the gun or him self out of the vehicle, there is no voluntary act for the criminal law to punish.

[20] Accordingly, it is my view that if the appellant acquired knowledge of the weapon while the vehicle was in motion, he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle. If the appellant only acquired knowledge of the weapon at the point when Johnson was leaving the vehicle, he would be entitled to an acquittal.

[21] I do not accept the Crown's argument that there was no "air of reality" to a defence on this point. Nor do I agree that because the appellant denied all knowledge of the weapon, he was not entitled to insist that the jury be given a complete answer to its questions. The appellant did put his knowledge of the gun in issue. It was certainly open to the jury to reject the appellant's evidence that he knew nothing of the weapon, yet find that he did not learn of its presence in the vehicle until sometime after he embarked on his drive with Johnson. The jury's verdict on the other counts demonstrates that the jury rejected Johnson's evidence that the gun belonged to the appellant. If the jury could only acquit on the precise basis of the appellant's evidence, surely the same principle would mean they could only convict on the precise basis of Johnson's evidence, yet that is plainly not the case. The jury, as it was entitled to do, disbelieved both Johnson and the appellant. Even though he was disbelieved, the appellant was entitled to a full answer to the jury's very specific questions regarding the timing of his knowledge of the gun. After being told that ". . . Mr. Swaby must be proven to have been aware of the existence of the weapon while both he and Mr. Johnson were in that vehicle", the foreperson persisted, asking for further help. The jury's specific and persistent questions regarding the timing of the appellant's knowledge of the gun indicate that they were asking for guidance on the legal principles they should apply if they found that [the] appellant acquired knowledge of the weapon after he had got into the car with Johnson. The jury's questions also suggest an instinctive awareness, albeit in lay terms, of the voluntariness point I have just discussed. They needed and asked for help on the point, but their questions were not fully answered by the trial judge.

[22] In these circumstances, it is my view that the appellant was entitled to a fuller explanation from the trial judge of the necessary elements of this offence dealing more thoroughly with the circumstances in which guilt would follow if knowledge of the weapon were acquired after the vehicle was set in motion. I respectfully disagree with the trial judge that this would amount to embarking upon something the jury had not asked about. To the contrary, the terms of the question posed by the jury and the persistent attempts of the foreperson to get further clarification indicate that the jury needed help on the point. The importance that should be attached to jury questions and the need for correct and comprehensive answers is well-established. The following passage from the judgment of Cory J. in R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, 93 C.C.C. (3d) 1 at p. 530 S.C.R. p. 8 C.C.C., is applicable here:

There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion, please help us. That help must be provided.

[23] In my view, this error was fatal to the conviction and the conviction must be set aside.

Issue 2: Did the trial judge err in failing to instruct the jury that Johnson's criminal record could be used to impugn his credibility?

[24] Johnson's prior criminal record included convictions for failing to comply with a recognizance, obstruction of justice, and assault. Johnson's criminal record was introduced by Crown counsel in examination-in-chief. When he was cross-examined, Johnson offered excuses for each conviction.

[25] Other factors relevant to Johnson's credibility were the suggestions that his irregular immigration status would be further threatened by his involvement with illegal weapons, and that he was shifting blame for the gun to the appellant having received an unusually lenient sentence on his plea of guilty. In charging the jury, the trial judge did not give a Vetrovec warning, nor did he make any references to the use the jury could make of Johnson's criminal record. The appellant's trial counsel objected to the trial judge's failure to explain the use that could be made of Johnson's criminal record, and the trial judge indicated both that he had intentionally not given the instruction and that he would not give any further direction on the point.

[26] It has been held that trial judges have considerable discretion in determining whether and how to instruct juries in this area. However, the discretion is not completely unfettered and, in appropriate cases, it is subject to appellate review: R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, 82 C.C.C. (3d) 310; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, 141 C.C.C. (3d) 321.

[27] In my view, the trial judge erred in failing to instruct the jury on the use it could make of Johnson's criminal record. Johnson was a crucial witness for the Crown. The appellant denied Johnson's version of the incident and Johnson's credibility was not only very much under attack but also weakened by the factors I have mentioned. It is difficult to conceive of a reason for not giving the usual instruction on this point.

[28] The respondent sought to justify the refusal to give the usual instruction on the ground that Johnson had effectively explained away the significance of the convictions under cross-examination. I do not accept this submission. It is far from clear to me that the jury would have been persuaded by his explanations. Indeed, there is a good chance the jury would be even more dubious as to his veracity because of what he said about his criminal record. The jury was entitled to the usual instruction that Johnson's convictions could be taken into account in assessing his credibility.

[29] Accordingly, I would also give effect to this ground of appeal.

Other Grounds of Appeal

[30] The appellant raises a number of other grounds of appeal. In view of the conclusion I have already reached, it is unnecessary to deal with these grounds. I note, however, that one point raised by the appellant is that the section under which he was charged had been found contrary to the Canadian Charter of Rights and Freedoms several months before his trial in R. v. Phillips (1996), 1996 CanLII 8291 (ON SC), 108 C.C.C. (3d) 514, 138 D.L.R. (4th) 121 (Ont. Gen. Div.). The appellant did not raise this issue at trial. I express no view, one way or the other, as to the constitutionality of the former s. 91(3). As I would order a new trial, it would be open to the appellant to raise the issue at that new trial if so advised.

Conclusion

[31] For these reasons, I would allow the appeal, set aside the conviction, and order a new trial.

[32] MACPHERSON J.A. (dissenting):--I have had the benefit of reading the draft reasons prepared by my colleague Sharpe J.A., who would allow the appeal and order a new trial on two grounds: (1) the trial judge erred in his answer to the jury questions relating to the only offence in the eight count indictment on which he was convicted; and (2) the trial judge erred by failing to instruct the jury that the criminal record of the Crown's main witness could be used to impugn his credibility.

[33] With respect, I do not agree that the trial judge erred on either of these two matters. Because my colleague has fully and accurately described the relevant facts, I can state the reasons for my disagreement in brief fashion.

(1) The jury questions

[34] The chief Crown witness, Johnson, testified that the gun belonged to the appellant. The jury obviously disbelieved Johnson or had a reasonable doubt about his testimony because they acquitted the appellant of the several charges relating to possession of the gun and ammunition.

[35] The appellant testified that at no time until after charges were laid did he know that there was a gun in his car. In spite of this testimony, the appellant now contends that, in response to the jury's questions, the trial judge should have given a broad answer that would have included an instruction on a scenario in which there was no evidence -- namely, that the appellant became aware that Johnson had a gun at some point during their ride together in the car. In such a circumstance, I do not think that the trial judge erred by answering the jury's questions within the context of the evidence they had heard:

He must know of the existence of the weapon. You must be satisfied on the evidence you have heard in total throughout the trial but with respect to this particular question that you have asked, it must be proven by the Crown to have known of the existence of that weapon in that vehicle while both he and Mr. Johnson were in it.

In my view, this was a precise and, in light of the evidence (especially the appellant's position at trial), appropriate response to the jury's questions.

(2) The non-charge on the criminal record of the Crown's main witness

[36] The trial judge provided no instruction on the use the jury could make of Johnson's prior criminal record. When defence counsel objected, the trial judge replied that his omission was intentional. As my colleague notes, appellate courts have held that trial judges have considerable discretion in determining whether and how to instruct juries in this area.

[37] I am not inclined to interfere with the trial judge's exercise of discretion in this case. My principal reason for non-interference is the actual verdicts reached by the jury. They acquitted the accused of seven serious offences relating to possession of restricted weapons and death threats against Johnson. These acquittals must have flowed from either outright rejection of Johnson's testimony or a reasonable doubt about it. In short, the seven acquittals indicate that the jury did not find Johnson to be a credible witness. Accordingly, the absence of an instruction about how Johnson's criminal record could be used by the jury in assessing his credibility did not prejudice the appellant. His conviction on the eighth, and most minor, count in the indictment was probably based on the jury's rejection of the appellant's testimony (no knowledge of the gun in the car) and acceptance of Crown evidence other than Johnson's testimony.

Disposition

[38] For the sake of completeness, I would indicate that I see no merit in the other six grounds of appeal raised by the appellant on his conviction appeal. I would also not give effect to the appeal against sentence. Accordingly, I would dismiss the appeal.

Appeal allowed.