COURT OF APPEAL FOR ONTARIO

DATE: 20030214 DOCKET: C36307

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

JAMES CRAIG CAMERON Appellant

Counsel: Michal Fairburn for the respondent Heather Pringle for the appellant

Heard: February 7, 2003

Judges: WEILER, CHARRON and MOLDAVER JJ.A.

On appeal from the conviction imposed by Justice J. Stephen O’Neill of the Superior Court of Justice, sitting with a jury, dated February 21, 2000 and from the sentence imposed by Justice O’Neill dated April 26, 2000.

Reasons for Decision

CHARRON J.A.:

[1] The appellant appeals from his conviction on one count of aggravated assault and if not successful, seeks leave to appeal his sentence. He submits firstly that the verdict was unreasonable and seeks an acquittal. Alternatively, he seeks a new trial based on a number of grounds of appeal. Crown counsel opposes the request for an acquittal but concedes that there must be a new trial. At the conclusion of the hearing, we agreed with Crown counsel’s position. In our view, the evidence could reasonably support the verdict. However, the conviction cannot stand in light of a number of errors committed during the course of the trial. We therefore allowed the appeal, set aside the conviction and ordered a new trial for reasons to follow. These are those reasons.

[2] Since there will be a new trial, we do not propose to relate the evidence in any detail. The facts that are relevant to the various grounds of appeal can be briefly stated as follows.

[3] The sole issue at trial was identification. On the evening of December 10, 1997, Menelek Kenneth Belcher, the complainant, went from Toronto to Parry Sound with his acquaintance, Lam Van Nguyen. They arrived at a cottage around midnight. There were a number of adult males in the cottage, some of whom neither Mr. Nguyen nor Mr. Belcher knew. Shortly after their arrival, Mr. Belcher was unexpectedly attacked as he bent over to inspect the cord to a video game machine. He was hit in the head, and then stabbed on the left wrist as he raised his arms to defend himself. Once the attacker left the cabin, Mr. Nguyen and the victim attempted to leave the scene in Mr. Nguyen’s car. During their attempt to drive away, Mr. Belcher was again attacked when the same perpetrator broke the car window and reached in with his knife. Mr. Belcher was able to escape from the car and run to a nearby apartment to seek help and call the police.

[4] The police attended at the scene shortly thereafter. Mr. Belcher provided the police with an immediate description of his attacker, that being a white male in a black “rocker” leather jacket, older than the people Mr. Belcher was with. Shortly afterwards, a police officer stopped Mr. Nguyen’s car as it was leaving the area. At that time, there were several occupants in the car, including the driver, Mr. Nguyen, and the appellant. All the occupants except for Mr. Nguyen exited the vehicle. Another officer, Sgt. Digby, observed the appellant who appeared older than the rest of the others there and who was wearing a black bomber jacket. There appeared to be blood on his cap, on the arm of his jacket, and on one of his hands. Sgt. Digby also spoke to Mr. Nguyen. Two of the others fled the scene. The appellant was then arrested and brought to the police station. Upon arrival, he asked to use the washroom and was brought to a cell without a wash basin. A police officer observed him washing his hands in the toilet.

[5] Ten days later, Mr. Belcher gave another statement to the police, this time adding that the attacker had his hair in a ponytail, was wearing black leather gloves, and was shorter than Mr. Belcher. All these features were consistent with the police officers’ observation of the appellant’s appearance on December 10, except for the gloves. Mr. Belcher testified and made an in-court identification of the appellant.

[6] Mr. Nguyen testified and stated that he had very little memory of the events in question. At the outset of his examination-in-chief, Crown counsel sought and was granted leave to show the witness a previous statement he had given to the police in an attempt to refresh his memory. Certain parts of his statement were read out including a description of the attacker. While Mr. Nguyen acknowledged that he had given the statement to the police and that it “could be true”, he denied remembering much about the incident. He did not adopt his statement as true and did not identify the appellant at trial.

[7] Sergeant Digby testified and gave details of his investigation on the evening in question. He testified that he received a description of the assailant from the victim. He also testified that he spoke to Mr. Nguyen after his car was stopped. He testified that the appellant was then arrested. While he did not testify as to the contents of the conversation with Mr. Nguyen, he did comment that as a result of the conversation, he was “100% confident” they had arrested the right man.

[8] As indicated at the outset of these reasons, we do not agree that the verdict was unreasonable and unsupported by the evidence. Despite the frailties of the identification evidence and other items of evidence relied upon by the appellant, it is our view on the totality of the evidence that the verdict is one that a properly instructed jury acting judicially could reasonably have rendered. It is particularly noteworthy that the case against the appellant was not entirely dependent on the complainant’s identification of his assailant. Several items of circumstantial evidence were capable of providing support to this identification. Hence, we did not find it necessary to hear from Crown counsel on this ground of appeal and we rejected it at the conclusion of counsel’s argument.

[9] It is our view, however, that Crown counsel properly conceded that a new trial should be ordered in light of the cumulative effect of the errors that were committed. These errors are as follows:

• Although the trial judge provided general instructions to the jury on the frailties of eyewitness identification evidence, it is our view that these instructions were inadequate. In particular, he gave no limiting instruction with respect to the complainant’s in-dock identification. This error was aggravated by the fact that Crown counsel, in his closing submissions, placed significant weight on Mr. Belcher’s demeanour when he made the in-dock identification. The invitation to place weight on the act of the in-court identification was not corrected or minimized by the trial judge in his charge. Rather, he repeated Crown counsel’s invitation in reviewing the Crown’s theory of the case.

• The charge to the jury left the erroneous impression that Mr. Nguyen had identified the appellant as the perpetrator. Mr. Nguyen neither identified the appellant at trial nor adopted the contents of his statement to the police.

• The trial judge erred in allowing the contents of Mr. Nguyen’s prior written statement to the police, never adopted for its truth, to be considered as evidence going to identification. The Crown concedes that, on this record, the evidence was not admissible as present memory revived, past recollection recorded, or under the principled approach to hearsay. Whether the evidence could be admitted on the basis of a proper evidentiary foundation is a question that can only be determined at the new trial.

• The trial judge erred in allowing Sgt. Digby to give inadmissible opinion evidence as to the correctness of the identification of the appellant as the assailant. This error was exacerbated by Crown counsel’s strong emphasis upon Sgt. Digby’s 100% level of confidence in the correctness of the appellant’s arrest during his closing submissions.

[10] In our view, the cumulative effect of these errors seriously prejudiced the fairness of the appellant’s trial. It is for these reasons that we allowed the appeal, set aside the conviction, and ordered a new trial. In light of that disposition, there is no need to deal with the sentence appeal.

Released: FEB 14 2003 Signed: “Louise Charron J.A.” “I agree K.M. Weiler J.A.” “I agree M.J. Moldaver J.A.”