DATE: 20030509
DOCKET: C36606 C37038
COURT OF APPEAL FOR ONTARIO
LABROSSE, WEILER and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Leslie Maunder, for the appellant Tuan Do, Christopher Hicks, for the appellant Minh Long Vo
Respondent
- and -
TUAN DO and MINH LONG VO
Susanne Boucher, for the respondent
Appellants
Heard: May 5, 2003
On appeal from the conviction imposed by Justice Edward G. McNeely of the Superior Court of Justice, sitting with a jury, dated May 15, 2001.
WEILER J.A.:
Nature of Appeal
[1] The Appellant, Do, was charged and convicted of one count of possession of heroin for the purpose of trafficking. His co-accused, the appellant Vo, was also charged with one count of possession of heroin for the purpose of trafficking of which he was convicted and one count of trafficking in heroin of which he was acquitted. Both Do and Vo appeal their conviction.
Facts
[2] On March 2, 2000, the police conducted surveillance on apartment 905 at 1105 Westlodge Avenue, after receiving a tip from a reliable informant that heroin was being sold from that residence. An officer observed Do knock at the door of the apartment, which was answered by Vo. Vo and Do spoke briefly and then Vo went back inside the apartment. Vo returned a short time later and, according to the surveilling officer, Do gave what appeared to be cash to Vo. Vo was observed having hand to hand contact with Do. Based on the information in the tip, the officer believed that the interplay was a drug deal.
[3] Do then exited the building and entered the driver’s seat of a vehicle. His brother, Thinh Do, was in the passenger’s seat. Officers followed the car until the vehicle was stopped in Hamilton. Police arrested Do, and found 13 grams of heroin in the centre console of the car. Following Do’s arrest, the Westlodge apartment was searched and police seized approximately 110 grams of heroin, which was concealed in a pair of jeans and in a laundry basket. Vo had possession of the keys to the apartment.
[4] Do and Vo and Thinh Do testified at trial. They all had criminal records. Do testified that he and Vo had planned to go out that evening to a local nightclub. Vo was visiting his friend Quy Nguyen at the Westlodge apartment. Vo arrived at 8:30 p.m. and then Nguyen left the keys to the apartment on the table and left. Vo testified that he watched television and fell asleep. Do went to pick up Vo at 10:30 p.m., who then told him that he was too tired to go out. While speaking to Do, Vo’s cell phone rang. After Vo took the phone call, he returned to the door and they shook hands and Do left.
[5] At trial, Vo denied selling drugs to the co-accused Do. Vo also testified that he did not reside at the Westlodge apartment and had no knowledge of the heroin secreted in the apartment. Vo also testified in cross‑examination that he was physically assaulted by four to seven officers for approximately 20-30 minutes.
[6] Do testified that the heroin found in the car upon his arrest belonged to his brother Thinh Do, a heroin addict. Thinh Do confirmed this evidence. Thinh Do testified that he had purchased the heroin earlier that night, without his brother’s knowledge, when they stopped at a restaurant. Thinh Do said he placed the heroin in the console of the car under some paper napkins while Do was in the building speaking to Vo. Constable Theriault testified that the heroin was in the console in plain view. Constable Chase testified that when he got into the vehicle to move it the appellant Do’s cell phone was in the console.
Issues on the appeal
1.) Did the trial judge err in allowing cross‑examination on alleged police brutality respecting Vo?
[7] At the outset of the appeal, Do’s counsel abandoned the ground of appeal raised in Do’s factum relating to the alleged error by the trial judge in allowing the Crown to cross-examine Vo on allegations of police brutality and in his instructions to the jury regarding that evidence.
2.) Did the trial judge err in dismissing the applicant’s motion to exclude the heroin found in the Westlodge apartment pursuant to ss. 8 and 24(2) of the Charter?
[8] This ground of appeal turns on whether the search warrant for the Westlodge apartment was validly issued. We are of the opinion that although the police conduct in obtaining the search warrant was improper because the affidavit sworn in support of the warrant contained false and, in some cases, misleading information, the trial judge did not err in principle in concluding that once the offending parts of the affidavit were excised there existed sufficient grounds to believe that heroin was contained inside the apartment. We did not call upon the Crown to respond to this ground of appeal.
3.) Did the trial judge err in his instructions respecting the correct burden and standard of proof?
[9] The case law is very clear. As long as the charge when read as a whole makes clear the correct burden and standard of proof the court should not order a new trial.
[10] In his charge to the jury, the trial judge made the following comments:
The accused never has to… it is not up to the accused and the accused is under no obligation to give evidence or give an explanation. If, of course, he chooses to do so, then, of course, you assess his evidence and weigh his evidence as you do the evidence of other witnesses. But the onus always remains on the Crown to prove the offence beyond a reasonable doubt.
Now in this particular case, each of the two accused has given evidence and has denied any knowledge of the heroin, any possession of the heroin or any trafficking in the heroin. If you believe the accused, of course you must acquit. But even if you are not able to say, “I believe the accused,” you must still take into account the statement of the accused along with all of the other evidence in reaching your decision as to whether or not the Crown has proved the guilt of the accused beyond a reasonable doubt [emphasis added].
Counsel for the defence and Crown objected to this part of the charge, by suggesting that the trial judge had failed to put the second step of the model charge in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), to the jury; namely, even if the jury did not accept the defence evidence but it left them with a reasonable doubt they must acquit. The trial judge re‑charged the jury as follows:
…as I told you, in this case the accused, both of the accused, have given evidence that they did not… had no knowledge of heroin and nothing to do with it, and so on. As I told you, if you believe their evidence, of course you must acquit. If you are not able to say that you believe their evidence, but you have a reasonable doubt as to whether they are telling the truth, in other words, you say, “well, I have a reasonable doubt that it is false. Maybe it’s true,” that can raise a reasonable doubt. In other words, if you are not satisfied beyond a reasonable doubt that they are lying when they say they did not have this heroin or did not traffic in the heroin, then of course you must acquit because, if you have a reasonable doubt as to their truthfulness, then you would have a reasonable doubt.
On the other hand, of course, if you disbelieve their evidence and you do not believe their evidence, then of course you can disregard their evidence if you do not believe it. But even in that case, you then have to look at all of the other evidence to see whether that other evidence satisfies you beyond a reasonable doubt as to their guilt.
In other words, the mere fact that you find someone has lied, it does not mean that they are guilty. You still have to consider the evidence, all of the evidence, then to see whether you are satisfied beyond a reasonable doubt that the offence has occurred [emphasis added].
[11] There is no doubt that the instruction in the charge and the recharge is confusing. Neither the charge nor the recharge contained the classic formulation of the second step suggested by Cory J. in W.(D.), supra, that if the members of the jury did not believe the testimony of the accused but were left in reasonable doubt by it, they must acquit. Unlike in W.(D.), supra, however, the trial judge did not set up the evidence of the police and the appellants as a credibility contest. The jury was at no time instructed to evaluate each piece of evidence on its own, independent of the rest of the evidence, or to make a decision only on evidence that the jury found credible. He did not reverse the burden of proof.
[12] In his recharge the trial judge told the jury that, “If you believe their evidence, of course you must acquit.” This was the first step in the W.(D.) instruction and there is no complaint respecting it.
[13] The model instruction of the second step is, “If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.” In relation to the second step the trial judge told the jury that, “If you are not able to say that you believe their evidence, but you have a reasonable doubt as to whether they are telling the truth, in other words you say… ‘Maybe it’s true’ that can raise a reasonable doubt.” He then added to the second step, “In other words, if you are not satisfied beyond a reasonable doubt that they are lying…then of course you must acquit.” This addition maintained the burden of proof on the Crown in relation to the appellants’ evidence.
[14] The third step of the W.(D.) instruction is, “Even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.” In this third step, the jury would no longer be considering the evidence of the accused because they would be considering whether “on the basis of the evidence [they did] accept” they were satisfied of the guilt of the accused. Here, in relation to the third step, the trial judge said, “[I]f you disbelieve their evidence and you do not believe their evidence, then of course you can disregard their evidence… But even in that case, you then have to look at all of the other evidence to see whether that other evidence satisfies you beyond a reasonable doubt as to their guilt.” Here, at the third stage of the W(D) instruction, it was implicit and the jury would have understood, that only if they rejected the evidence of the accused beyond a reasonable doubt, they would go on to consider whether the other evidence satisfied them that the Crown had proven the guilt of the accused. Having regard to the instruction that preceded the third step, it was not necessary that after the trial judge said, “If you disbelieve their evidence”, he had to again add the words “beyond a reasonable doubt”: See R. v. Roberts (1975), 24 C.C.C. (2d) 539 at 550 approved by Cory J. in W.(D.), supra, at 410.
[15] In addition the trial judge told the jury:
• What the presumption of innocence is and defined reasonable doubt;
• That it was only “having considered all of the evidence” that they could find that the accused had been proved guilty beyond a reasonable doubt;
• That the Crown always has the onus of proving beyond a reasonable doubt that the offence has been committed;
• That the standard of proof in a criminal case is more than probable guilt;
• That it was important that the jury weigh and give full consideration to the arguments and submissions of the defence;
• That the defence submitted that the members of the jury should accept the evidence of Vo and Thinh Do as to what transpired and that, “even if you do not accept it, you should have, and you must have, a reasonable doubt as to their [the accuseds’] guilt.”
• That Do gave evidence that he did not know anything about any drugs and that “even if you do not believe Do’s brother’s account [which was the same as Do’s] or if you have any doubt about it, even then it is the submission of the defence that you cannot be satisfied beyond a reasonable doubt that Do is guilty of the offence charged.”
• That they could only convict Do of possession of heroin for the purpose of trafficking if they were satisfied beyond a reasonable doubt that he had the heroin in his possession and that he had it in his possession for the purpose of trafficking and that if they were not so satisfied or if they had a reasonable doubt they were to find him not guilty;
• That they could only convict Vo if they were satisfied beyond a reasonable doubt that he not only had possession of the heroin but had it for the purpose of trafficking and that if they were not so satisfied or if they had a reasonable doubt they were to find him not guilty;
• That they were to consider the evidence against each accused separately and each charge separately.
[16] In my view, reading the charge as a whole the jury would not have been under any misapprehension as to how to apply the burden of proof in assessing the credibility of Do and Vo.
[17] The appellant Do also submits that the trial judge failed to refer to the evidence of Do’s brother in the recharge on W.(D.). In the trial judge’s initial charge to the jury, he reviewed in detail all the defence evidence, including the evidence given by Thinh Do and the submissions of the defence that Thinh Do’s evidence could raise a reasonable doubt even if they rejected it. Nothing in the recharge detracted from this.
[18] Accordingly, we would reject this ground of appeal.
4.) Did the trial judge err in not instructing the jury that a reasonable doubt can arise from the absence of evidence?
[19] In relation to Vo, counsel concedes that having regard to the jury’s acquittal of Vo on the trafficking charge, the trial judge’s alleged failure to instruct that reasonable doubt can arise from the absence of evidence is not, of itself, a ground for allowing the appeal. In addition, we note that in his charge the trial judge clearly explained the defence position concerning the lack of evidence connecting Vo to the apartment in which the drugs were found.
[20] Do submits that the trial judge ought to have more clearly instructed the jury that a reasonable doubt can be founded on an absence of evidence. Neither defence counsel at trial objected to the charge on this basis. The trial judge instructed the jury, “If you do not have enough evidence or if, when you consider the evidence, you cannot be satisfied beyond a reasonable doubt, of course you will find the accused not guilty.” This was an instruction to the jury to acquit if some area of evidence was lacking and, given the instructions in the balance of the charge, no further instruction was necessary. We would dismiss this ground of appeal.
5.) Was the jury’s verdict unreasonable in relation to Do?
[21] The evidence of Constable Theriault was that he found the drugs in the console in plain view and the evidence of Constable Chase was that the appellant’s cell phone was also in the console. Counsel for Do conceded that if it was open to the jury to accept this evidence the verdict could not be unreasonable. In our opinion it was open to the jury to accept this evidence and the verdict was not unreasonable in relation to Do.
[22] Accordingly, the appeal as to Do’s conviction is dismissed.
6.) Was the jury’s verdict unreasonable in relation to Vo?
[23] The circumstantial evidence in relation to Vo’s possession of the heroin in the apartment consisted of the following:
(a) the informant’s information was that a young Asian person of about twenty with short dark hair was selling heroin out of apartment 905 in the Westlodge apartment. Vo had a blond streak in his hair and his description did not match the description given by the informant in this respect.
(b) the appellant was in possession of a key to the apartment upon his arrest but did not reside at apartment 905;
(c) there was positive evidence both from the appellant and independent sources that other persons rented apartment 905;
(d) the appellant was only visiting the apartment;
(e) there were no documents connecting the appellant to the apartment;
(f) there was no evidence that the appellant’s prints were on any items in the apartment;
(g) there was no evidence that the jeans in which the heroin was found belonged to Vo or would have fit him; and
(h) there was no evidence that the clothes in the laundry hamper in which the heroin was found belonged to Vo.
[24] In our opinion the facts in this case are similar to those in R. v. Grey (1996), 47 C.R. (4th) 40 at 41 (Ont. C.A.), in which the case against the appellant rested principally on his regular occupancy of his girlfriend’s apartment and on the presence of his clothing and other belongings in the bedroom where crack cocaine was found. Laskin J.A. held in the circumstances of that case that the trial judge was not entitled to infer knowledge of the drugs in the apartment from the appellant’s occupancy because there was no other evidence connecting him to the drugs, other persons frequented the apartment, and the appellant was not a permanent occupant. Those same considerations apply here.
[25] The Crown submits that the evidence of the hand to hand contact between Vo and Do at the door must be considered by us in deciding whether there is evidence upon which a properly instructed jury could find that Vo had knowledge of the drugs in the apartment. The Crown submits that if Vo had not been charged with trafficking the evidence of the hand contact was relevant and admissible with respect to the count of possession for the purpose of trafficking. While this is true, having regard to the jury’s verdict of acquittal of Vo in relation to the count of trafficking, it was unreasonable for the jury to convict him on the charge of possession for the purpose of trafficking.
[26] Accordingly, we would allow the appeal with respect to the appellant Vo’s conviction, set aside the conviction and enter an acquittal.
RELEASED: May 9, 2003
“KMW”
Signed: “Karen M. Weiler J.A.”
“I agree J. M. Labrosse J.A.”
“I agree E. A. Cronk J.A.”