DATE: 20010921
DOCKET: C35328

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. CONRAD ORANE (Appellant)

BEFORE:

DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL:

Richard Posner

for the appellant

Moiz Rahman

for the respondent

HEARD:

September 17, 2001

RELEASED ORALLY:

September 17, 2001

On appeal from the conviction imposed by Justice Russell G. Juriansz, sitting with a jury, on January 29, 2000 and the sentence imposed on November 2, 2000.

E N D O R S E M E N T

[1] The appellant was convicted of trafficking in cocaine. It was alleged that he supplied the cocaine sold to an undercover police officer.

[2] The Crown’s case consisted of the evidence of officers at the scene. One officer said that he made arrangements to buy cocaine from a person named Kevin. He gave Kevin a marked $100 bill. Kevin’s supplier drove up in a vehicle. That vehicle belonged to the appellant. After the meeting with his supplier, Kevin returned to the undercover officer and provided him with cocaine. The appellant was arrested in the vehicle about 30 minutes later. He was alone and the marked $100 was found on the console beside the driver’s seat. The appellant denied any involvement in the drug transaction. He said that he was not at the place where the transaction took place and he denied that he was in possession of the marked $100 bill when he was arrested.

[3] The appellant's credibility was obviously central to this case. During examination-in-chief, the appellant testified that about 6 months before his arrest he had given the police a false name when arrested on an immigration warrant. He was subsequently convicted on obstructing police and received a sentence of 1 day in jail in addition to some 82 days in custody prior to conviction. In cross-examination, Crown counsel merely confirmed that the appellant had been convicted of obstructing police.

[4] The trial judge did not give any instruction as to the use which the jury could make of the evidence of the prior conviction. He was not asked by either counsel to give any such instruction and no objection was taken to the instruction until after the verdict was returned.

[5] It is conceded by the Crown that the trial judge erred in law by failing to instruct the jury that the evidence of prior conviction can be used only in assessing the appellant’s credibility and could not be used in any way as evidence that the accused committed the offence. The Crown argues that the error occasioned no substantial wrong or miscarriage of justice and that s. 686(1)(b)(iii) of the Criminal Code should be applied and the appeal dismissed. That section, the so called curative proviso must be used with great care, particularly in cases where the verdict turns on credibility assessments.

[6] We are satisfied that the s. 686(1)(b)(iii) can be applied here. A proper instruction would have highlighted the relevance of the evidence of the prior conviction to the appellant’s credibility. Given the nature of that conviction, this part of the instruction could not possibly have helped the appellant. The second part of the instruction warns against the misuse of evidence of a prior criminal conviction. We see no realistic possibility that absent a proper instruction the jury could have inferred from a single prior conviction for obstructing police that the appellant was the type of person who would traffic in cocaine. Nor do we think there was any real danger that the jury would conclude based on evidence of one previous, relatively minor conviction for an unrelated offence that the appellant was a bad person who should be convicted regardless of whether the Crown had proved its case against him. The dangers against which the instruction are designed to guard were simply not present in any meaningful way in the circumstances of this case. To paraphrase the words of Lamer C.J.C., concurring in R. v. B.(F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 at 119, we are satisfied that it can be safely concluded that the absence of a proper instruction had no material adverse effect on the deliberations of the jury.

[7] In oral argument, counsel suggested for the first time that part of the cross-examination of the appellant required an instruction that the jury should not draw any adverse inference from the fact that the appellant was illegally in the country and working illegally. We have considered that part of the cross-examination and in the context of the entire cross-examination and are not satisfied that a limiting instruction argued for by the appellant was necessary. Counsel at trial did not request any such instruction.

[8] The appeal is dismissed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“Cronk J.A.”