DATE: 20010621
DOCKET: C23793
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., CATZMAN and CHARRON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
KULDIP SINGH RAI
Appellant
Owen Wigderson, for the appellant
Alexander Alvaro, for the respondent
Heard: June 18, 2001
On appeal from his convictions by Justice Moira L. Caswell, sitting with a jury, on December 15, 1995.
BY THE COURT:
[1] Following a trial by judge and jury, the appellant was convicted of one count of conspiracy to commit the offence of possession of stolen property and one count of fraud. He was sentenced to fifteen months’ imprisonment on each charge, to be served concurrently. The appellant appealed against the two convictions only. He has served his sentence.
[2] The appellant raised three grounds of appeal. At the conclusion of the hearing, his appeal was dismissed for reasons to follow. These are those reasons.
[3] First, the appellant submitted that a reversible error was made when the trial judge read in its entirety, and provided the jury with a copy of, s. 354(2) of the Criminal Code, R.S.C. 1985, c. C-46 that contained an unconstitutional evidentiary presumption. The impugned provision was provided to the jury as part of a notebook that contained the indictment, a flow chart relating to the evidence, other provisions of the Criminal Code and blank pages for note-taking. The section provided to the jury read as follows:
- (2) In proceedings in respect of an offence under subsection (1), evidence that a person has in his possession a motor vehicle the vehicle identification number of which has been wholly or partially removed or obliterated or a part of a motor vehicle being a part bearing a vehicle identification number that has been wholly or partially removed or obliterated is, in the absence of any evidence to the contrary, proof that the motor vehicle or part, as the case may be, was obtained, and that such person had the motor vehicle or part, as the case may be, in his possession knowing that it was obtained,
(a) by the commission in Canada of an offence punishable by indictment; or
(b) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
[Emphasis added.]
[4] This court held, in Re Boyle and The Queen (1983), 5 C.C.C. (3d) 193 (Ont. C.A.), that while the presumption that the vehicle was obtained by the commission of an indictable offence was constitutionally valid, the presumption of guilty knowledge was not constitutional. This case was discussed during the pre-charge conference and the trial judge agreed that the unconstitutional portion would have to be deleted from the material given to the jury. However, in giving her instructions to the jury, the trial judge inadvertently read all of s. 354(2) and neglected to delete the unconstitutional portion of the section.
[5] While the trial judge erred in reading and providing to the jury the full text of s. 354(2), we are of the view that this error caused no substantial wrong or miscarriage of justice in the circumstances of this case. We note the following:
Immediately after reading s.354(2), the trial judge instructed the jury on its meaning in a manner that was entirely consistent with this court’s holding in Boyle.
Throughout the charge, the trial judge gave emphatic and correct instructions on the Crown’s burden of proof in relation to all the elements of the offence, including knowledge.
The reference to s.354(2) related to the charge of possession and the appellant was acquitted of that charge.
Crown counsel submitted, and we agree, that it is highly unlikely that the jury applied this provision to the other two charges against the appellant. If the jury simply ignored the trial judge’s instructions on the meaning of s.354(2) and relied on the text as contended, they would have noted that s.354(2) applied only “in proceedings in respect of an offence under subsection (1)”. Further, the fraud charge did not require knowledge that the vehicle had been repaired with stolen parts but simply knowledge that the vehicle had been in an accident and repaired. Proof of such knowledge could not have been derived from the statutory presumption.
The lack of objection by counsel at trial may be indicative of the relative unimportance of this error in the context of the entire charge.
[6] In all these circumstances, we would not give effect to this ground of appeal.
[7] Second, the appellant submitted that the trial judge erred in failing to warn the jury that evidence of the co-accused’s post-offence conduct was not admissible against him.
[8] At the beginning of the charge, before dealing with each particular count, the trial judge explained a number of general concepts, one of which was “consciousness of guilt”. The trial judge then described four incidents the jury could consider as probative of a guilty conscience, all involving actions by a co-accused. Two of those incidents occurred after the conspiracy was ended and hence were not admissible against the appellant under the co-conspirator’s exception to the hearsay rule. The appellant submitted that the jury may have nonetheless used this evidence against him because the trial judge never expressly cautioned the jury on the limited use that could be made of this evidence when she made reference to it. He submitted further that the problem was exacerbated by the trial judge’s reference to the Crown’s theory sometime later in the charge. The trial judge noted that the Crown’s theory included a consideration of these incidents but did not go on to distinguish between the incidents in terms of their admissibility as against each accused.
[9] We do not agree that the trial judge failed to adequately caution the jury as contended. The charge must be considered as a whole. In our view, it would have been clear to the jury from the context that the specific reference to the four incidents in question was made in a general way to explain the concept of post-offence conduct. It is later in the charge that the trial judge explained how the jury could use the various items of evidence against each accused. While the trial judge did not expressly refer to the two incidents in question in that later portion of the charge, she clearly instructed the jury that what one person says or does is not admissible as evidence against another unless it fell within the limited exception for acts and declarations done and made in furtherance of the conspiracy. She also instructed the jury that, unless she pointed out otherwise, acts and declarations after the offence was complete, that is after February 1st, 1993, would not fall within that exception. We are not persuaded that it was incumbent upon the trial judge to make further specific references to these items of evidence. It is noteworthy that no objection was made in this respect at trial.
[10] Third, the appellant submitted that Crown counsel improperly cross-examined him in a manner that resulted in an unfair trial. He argued that Crown counsel improperly suggested that he was using knowledge obtained from disclosure and the preliminary inquiry to concoct his testimony. He argued further that Crown counsel improperly relied on defence counsel’s failure to put certain questions to the complainants in support of the contention that the appellant was fabricating his evidence.
[11] We see no merit in the first part of the argument. In our view, the questions asked by Crown counsel with respect to the disclosure and the preliminary inquiry would not have had the effect contended by the appellant. However, while we agree that Crown counsel should not have confronted the appellant with his counsel’s failure to put certain questions to the complainants, we are not satisfied that the cross-examination, when considered in the context of the appellant’s entire testimony, affected the fairness of the trial. The impugned passage was an isolated instance in the course of an otherwise appropriate cross-examination.
[12] It is for these reasons that we dismissed the appeal.
RELEASED: June 21, 2001
"RMcM"
(signed) "R. McMurtry C.J.O."
(signed) "M. A. Catzman J.A."
(signed) "Louise Charron J.A."