DATE: 20011106 DOCKET: C34689
COURT OF APPEAL FOR ONTARIO
CARTHY, WEILER AND FELDMAN JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Richard Posner
for the appellant
Respondent
- and -
DUKE MYERS
Steve Coroza
for the respondent
Appellant
Heard: September 12, 2001
On appeal from the conviction on January 6, 2000, imposed by Justice Bruce C. Hawkins following a trial by judge and jury.
CARTHY J.A.:
[1] This appeal concerns significant hearsay evidence led by the Crown and admitted in anticipation of a Crown witness to support that evidence. That witness was not called. Should a mistrial have been declared? Was the trial judge’s charge appropriate?
[2] The appellant was convicted after a trial before a jury of one count of trafficking and one count of possession for the purpose of trafficking in cocaine. An abbreviated version of the factual background is that Detective Constable Burke issued $100 in pre-recorded buy money to undercover Officer McLane, who testified that he gave $40 of the money to the appellant in return for some cocaine. The two then walked toward the appellant’s car, McLane gave a signal, and other officers including Ratchford came to make the arrest. The officers seized a baggy containing 2.1 grams of cocaine, which formed the basis for the second charge. Burke, the recording officer, testified that Ratchford returned the pre-recorded buy money to him. Ratchford was said to have seized the money from the appellant incident to his arrest. When his turn came to give evidence, Ratchford was attending a sick child and the Crown did not call him. The appellant asked for a mistrial on the basis of the hearsay evidence of the seizure of the buy money from him. When that request was refused, the appellant testified in his own defence. His evidence was that he had no money on his person; that someone ran by, told him to hold a package, and thrust a package at him; and that the police suddenly surrounded him.
[3] There is no question that the hearsay evidence as to the appellant’s possession of the buy money would not have been introduced, nor would Crown counsel have spoken of it in his opening address, if it had been known that the seizing officer would not be called. It is equally obvious why there was no objection from defence counsel, who expected, as did everyone else, that the evidence was forthcoming.
[4] When Crown counsel announced at the close of his case that Ratchford would not be called, defence counsel moved for a mistrial on the ground that the appellant had been tactically prejudiced. According to defence counsel, the unfulfilled expectation that Ratchford would testify led him to highlight in cross-examination the veracity of the evidence concerning the $40 buy money. I see no support for that in the transcript, and neither did the trial judge. If Burke had said nothing as to the source of the money, defence counsel’s task would have been the same: cross-examining witnesses in anticipation of evidence that might or might not be called. What he is really complaining of is that he wasn’t told in advance that Ratchford would not be called. That is not a reasonable complaint, nor one justifying a mistrial. No one could have anticipated the unavailability of the witness and it was reasonable to conclude, as did the trial judge, that an appropriate charge would enable the jury to limit its consideration to admissible evidence.
[5] In the course of the argument as to a mistrial the trial judge stated:
THE COURT: There is no – and I shall so instruct the jury, unless, when the Crown’s case is in – there is no evidence that any control bills were taken from the person of Mr. Myers. There is no evidence to that effect. I shall so tell them.
And later:
THE COURT: I would authorize you to say in your address to the jury that His Honour will tell you that there is not one shred of evidence that a single piece of buy money was taken from the person of Mr. Myers. You can put it to them yourself, as I certainly will.
[6] Following that argument and the refusal of the mistrial, the Crown called its final witness, an experienced officer, to speak to quantities of cocaine that suggest trafficking. He was cross-examined at length on the significance in drug transactions of finding or not finding buy money on the arrested person. The defence was clearly trying to build a case on the absence of evidence of money being seized from the appellant.
[7] In the trial judge’s charge he stated:
You would, in a buy-and-bust situation, expect to find the prerecorded buy money on the person of the alleged dealer, the accused person, and as has been indicated over and over again, it was not. There is no evidence before you that any buy money was found on the accused person. That is something that you may consider, but as the Crown has also pointed out, it is not an essential element of the case that the buy money be found. It would be corroborative of the evidence given by the undercover officer had it been available, but if you are satisfied on his evidence beyond a reasonable doubt, then the absence of the buy money is not critical. On the other hand, you are entitled to view the absence of the buy money with suspicion if you care to do so, and take that into consideration in reaching your decision.
[8] In retrospect, this charge appears imperfect because it ignores the hearsay evidence of possession of the money. However, some context is suggested by the reference to hearing this over and over again and to the Crown’s position. Surely this refers to the defence and Crown addresses (which were not transcribed) and is modelled to be consistent with them. If defence counsel did not make reference to the hearsay evidence – and it seems unlikely to me that he would have done so – then he can hardly complain of the trial judge not doing so. Further, the trial judge was being generous to the defence in light of the mishap. He could have instructed the jury that, while there was no direct evidence of seizure of the money, an inference could be drawn from the fact that it was returned combined, if believed, with the evidence of the undercover officer that it was handed to the appellant. Instead he told them there was no evidence of seizure of the money and this might be considered a suspicious circumstance in light of the expert evidence. As the expression goes, “he cut him a piece of slack”.
[9] It is my conclusion that the jury undoubtedly understood that the hearsay evidence was to be ignored and that the evidence was to be considered apart from any consideration of the seizure of buy money. If the instructions were too emphatic in that direction it benefitted the appellant. The evidence was overwhelming and the appellant was asking much of the jury to accept his fanciful version of events.
[10] For these reasons I would dismiss the appeal.
Released: November 6, 2001 “JJC”
“J.J. Carthy J.A.”
“I agree K. M. Weiler J.A.”
“I agree K. Feldman J.A.”