DATE: 20030410

DOCKET: C35063

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) - and - SEAN GRANT (Appellant)

BEFORE: ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL: James C. Fleming, For the appellant Iona Jaffe, For the respondent

HEARD: APRIL 4, 2003

RELEASED ORALLY: APRIL 4, 2003

On appeal from conviction by Justice Denise Bellamy of the Superior Court of Justice and a jury on June 27, 2000.

E N D O R S E M E N T

[1] The appellant was convicted after trial by judge and jury of possession of cocaine for the purpose of trafficking. He raises several grounds of appeal against conviction.

The verdict

[2] The appellant submits that the trial judge had no choice but to declare a mistrial when juror number 8, upon being polled, indicated that he still had a doubt about the guilt of the appellant. In this regard, the appellant relies on R. v. Pan (2001), 2001 SCC 42, 155 C.C.C. (3d) 97 (S.C.C.) at paragraph 120. We do not agree. In our view, it was open to the trial judge in the exercise of her discretion to inquire into the matter, give further directions, allow further deliberations and accept a substituted or second verdict for the first one returned (see R. v. Head (1986), 30 C.C.C. (3d) 481 (S.C.C.) at pp. 484-85). The procedure adopted by the trial judge in providing a brief but proper exhortation and then allowing the jury to retire for the night was appropriate and we have not been persuaded, in the circumstances, that a miscarriage of justice occurred.

The adverse inference issue

[3] In our view, this was not a case in which the defence was entitled to an “adverse inference” instruction by reason of the Crown’s failure to call D.C. Grekos. At most, the jury was entitled to take D.C. Grekos’ absence into account in deciding whether, at the end of the day, they entertained a reasonable doubt on the evidence before them. As the trial judge noted, there was nothing in the record to explain why D.C. Grekos was not called, and nothing to suggest that if he had been called, he would not have supported the position of the Crown. The trial judge also gave a proper instruction, in accordance with R. v. Lifchus, [1997] 3 S.C.R. 320, in which she made it clear that a reasonable doubt could arise from an absence of evidence.

D.G. Grekos’ notes

[4] Assuming, without deciding, that the notes were admissible, the appellant suffered no prejudice because in his closing address, defence counsel told the jury (without objection from the Crown) essentially what was in the notes.

Failure to outline the evidence in support of the defence position

[5] The trial judge alerted the jury to the defence position, albeit in short compass. As well, she reviewed the evidence of the various witnesses, including the appellant’s evidence and the evidence given by the other two defence witnesses. In the circumstances of this short and uncomplicated trial, the charge was adequate.

The Corbett issue

[6] We see no error in law in the manner in which the trial judge instructed the jury on the Corbett issue. [See R. v. Corbett, [1988] 1 S.C.R. 670.]

[7] Accordingly, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

_____ “M.J. Moldaver J.A.”

_____ “Janet Simmons J.A.”