DATE: 20010522

DOCKET: C34374

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ROBERT WAYNE CANN (Appellant)

BEFORE: FINLAYSON, CARTHY and SIMMONS JJ.A.

COUNSEL: Christopher A.W. Bentley for the appellant

Laura Hodgson for the respondent

HEARD: May 14, 2001

RELEASED ORALLY: May 14, 2001

On appeal from conviction by Justice Dougald R. McDermid, sitting with a jury, dated May 12, 1999 and from the sentence imposed by McDermid J. dated June 5, 2000.

E N D O R S E M E N T

[1] There were two grounds for appeal that were argued that we feel we should respond to. The first is the failure of the trial judge to grant a mistrial on the basis that one of the jurors had been contaminated. The facts are that on the third morning of trial, a juror approached a court constable before court commenced to advise that he had a concern. The constable directed him to find the jury matron, a Ms. Mugford. The juror then had a conversation with Ms. Mugford on the main floor of the courthouse by the exit doors. He advised her that his daughter had told him the night before that the appellant was a former police officer and a private investigator and had attempted to rob a bank. She also advised him that her office manager was related to the appellant through marriage. Ms. Mugford said that people were coming and going and she did not believe that any jurors were nearby when the conversation took place. The rest of the jurors were by the judges’ elevator on the main floor. She is not sure if the subject juror was the last to arrive. The trial judge discharged the juror after talking to him and to Ms. Mugford.

[1] Defence counsel took the position that this was a public area and there was potential for some of the conversation to have leaked back to the rest of the jury. He applied to the trial judge for a mistrial. The motion was denied.

[2] Counsel for the appellant concedes that there was no evidence that the tainted juror had communicated his information to other jurors or that the information he had received had been conveyed by any source to any other juror. He relies solely on the “explosive” (his word) nature of the information and the fact that the juror had reported the information to a court official in a public place albeit out of the earshot of the casual user of the public place.

[3] Where the integrity or impartiality of a member of the jury is raised, the trial judge has a discretion to grant or refuse a mistrial. The test to be applied in such circumstances is “was there a reasonable possibility of prejudice or infringement of the right to a fair trial.” Appellate courts have routinely held that the decision as to whether a mistrial should be granted or refused is entitled to appellate deference: see R. v. Jolivet (1997), 1998 CanLII 12773 (QC CA), 125 C.C.C. (3d) 210 at 230, 236-37, per Robert J.A. adopted by S.C.C. 2000 SCC 29, 144 C.C.C. (3d) 97 and R. v. Lessard (1992), 1992 CanLII 3103 (QC CA), 74 C.C.C. (3d) 552 (Que. C.A.) at 562-63. We would not interfere in this case with the ruling of the trial judge.

[4] The second ground related to a motion for a directed verdict on the basis that there was not sufficient evidence of continuity of the blood sample to permit the jury to find it was a sample seized from the appellant and that it had not been contaminated. The trial judge was asked to rule on this matter and he did so at p. 243 of Volume 2 of the transcript of evidence. He said:

It, I think, is trite law that it is not for a trial judge to weigh evidence on a motion such as this and the test is whether there is any evidence upon which a reasonable jury, properly instructed, may convict.

It seems to me that the gist of this issue is whether or not the blood that was analyzed was Mr. Cann’s blood, that is the issue.

There is, in my opinion, some evidence that it was Mr. Cann’s blood. There may be some difficulty with the evidence as to continuity but I think that is a matter of fact for the jury to decide because, in my opinion, there is some evidence that this is the blood of Mr. Cann. There is some evidence with respect to labelling, etcetera.

[5] It is our view that the ruling of the court was correct and that there was evidence before the jury on which it could make the findings that are implicit in its verdict respecting the presence of alcohol in the appellant’s blood.

[6] On the issue of sentence, we accepted fresh evidence demonstrating that since the sentence was imposed the appellant’s health has deteriorated to the point where it is precarious. He is confined to his house with the exception of visits or trips for medical treatment. Accordingly, and with the acquiescence of Crown counsel, we grant leave to appeal, allow the appeal and vary the sentence to two years less a day to be served conditionally on the same terms and conditions as the conditional sentence the appellant is currently serving for another offence. The license suspension is to remain.

Signed: “G.D. Finlayson J.A.”

“J.J. Carthy J.A.”

“J. Simmons J.A.”