DATE: 20030319

DOCKET:C35815

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., CARTHY AND MacPHERSON JJ.A.

B E T W E E N:

Richard Litkowski

HER MAJESTY THE QUEEN

and J. Randall Barrs

for the appellant

Respondent

• and -

D.D. Graham Reynolds, Q.C.

BRETT GREGORY TOMS

and Carolyn Hayes

for the respondent

Appellant

Heard: February 11, 2003

On appeal from the conviction by Justice Lucien A. Beaulieu of the Superior Court of Justice dated January 15, 2001 and from the sentence by Justice Lucien A. Beaulieu dated February 2, 2001.

CARTHY J.A.:

[1] The appellant appeals against both conviction and sentence after trial by a jury on two counts of trafficking, two counts of possession of the proceeds of the crime, and three counts of possession of a prohibited weapon.

[2] The most significant point of appeal concerns the adequacy of response of the trial judge to questions put by the jury. Since I have concluded that a new trial should be ordered, I will restrict the recital of facts to those necessary for an understanding of the issue.

[3] In the course of a large scale investigation, the O.P.P. hired an undercover operative, Robert Brown. Brown insinuated himself into the confidence of the appellant and then, on Brown’s evidence, twice purchased cocaine from the appellant. On each occasion, other officers searched Brown before the encounter, provided him with money, kept him under surveillance, and then searched him after the encounter and retrieved the cocaine. The appellant gave evidence, during which he denied selling cocaine, and provided an alternative explanation for the meetings.

[4] The jury retired at 1:30 p.m. on the last day of a lengthy trial. They returned at 4:00 p.m., asking for a transcript of the trial. They were told that this was not available, and the trial judge suggested they might address particular issues which concerned them. The jury then returned to ask for the testimony of the surveillance officers. The following interchange occurred:

THE COURT: Yes, Members of the Jury, you have mentioned the police reports and the evidence of all the police.

Once again, on reflection, that seems to be a pretty difficult and wide order request.

I would ask you that you return to your jury room and see if you can break it down in terms of specific officers, specific areas, because you will recall that we have the evidence of, when you consider all of the evidence but in particular the surveillance evidence, as I recollect, the evidence of at least seven officers and four main ones or six basically: Deane, Cousens, Pulfrey, Smith and DeLorenzi. So it is pretty hard for anyone to, at this stage, for me or the Reporter to go back and revisit all of that. There must, I would suspect, be something behind your request in terms of some issue regarding possibly one of them in particular, or two or three, or whatever the case may be, but I think you have to identify your questions a little bit more precisely than that.

THE PRESIDENT: Your Honour, if I may address you.

So just to focus it a little more, I realize we have made a broad request but the area specifically we are interested in would it be possible even to hear a playback of the testimony given by Mr. Toms on November 10 at the occasion when he met Mr. – Or was told he met Mr. Brown at his house on Miramar?

THE COURT: Well, you see that is where it gets real confusing, because now you are requesting a playback of the evidence of the accused, Mr. Toms, which is completely different than your original request.

THE PRESIDENT: We have had several discussions after we left the room and this is a specific area and if we can have that we would appreciate it.

THE COURT: I think what you had better do is go back to your jury room and keep on discussing and then hopefully it will refocus a little bit more, because if this just came out as the result of talking since the last time you were here, then obviously there is room for talking. Okay?

[5] That brought the time to 4:15 p.m. The next appearance of the jury was at 5:50 p.m. when they returned to deliver a verdict of guilty on all charges.

[6] The trial judge’s early efforts to focus the jury on inquiries that he could respond to were understandable, and his ultimate response was no doubt made in anticipation of a follow-up from the jury. However, the plain words he spoke to them comprised a refusal to read back a segment of the appellant’s evidence – his only defence. The trial judge expressed his confusion arising from the request, and this may well have reflected the jury’s own confusion. In any event, the Supreme Court of Canada has expressed the importance of responding directly to jury’s questions. See R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 at 410-11 (S.C.C.) and R. v. S.(W.D.) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 at 6-8 (S.C.C.). Where a request is made to read back evidence, it is the trial judge’s duty to identify what the jury wishes to hear and then read it back or provide a transcript. See most recently in this court R. v. A.(J.) (1996), 1996 1201 (ON CA), 112 C.C.C. (3d) 528 at 533-34 (Ont. C.A.).

[7] The defence counsel did nothing to dissuade the trial judge from his responses, but his error cannot detract from the fact that the jury was denied a review of a portion of the appellant’s testimony which bore directly upon credibility and, in turn, innocence or guilt. Some or all of the jury members likely had an imperfect understanding of the evidence pertaining to credibility, and yet proceeded very quickly to a finding of guilt. That is a verdict that should not stand no matter the strength of the corroborating evidence.

[8] Two other issues were raised which may have a bearing on the new trial and are thus deserving of comment.

[9] On the eve of the first trial date, the appellant served a notice requesting production of all files in the possession of the RCMP or any other police agency relating to the undercover agent’s work for the police over a period of about 21 years. This was styled as an O’Connor application (R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.)), seeking documents in the possession of third parties, but was totally unfocused and would span numerous investigations concerning other persons and matters entirely beyond the purview of the present case. The Crown had already supplied considerable information as to the background of Brown, including his criminal record, all of which was used in cross-examination.

[10] The appellant later revised the form of application to rely upon R. v. Stinchcombe (1991), 1991 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.), presumably to be relieved of any onus to provide specific grounds for production of specific documents under O’Connor, but the trial judge dealt with it as originally presented and denied relief essentially on the ground that it was a fishing expedition.

[11] I would not interfere with the trial judge’s exercise of discretion. It was a last minute motion seeking to send the Crown in pursuit of files spread across Canada over a 21-year period without any indication that more information would be forthcoming than had already been presented.

[12] Finally, the appellant complains of prejudicial questions and evidence introduced by the Crown as narrative. The appellant volunteered evidence as to his motorcycle club membership and police surveillance of club members and, given the very clear instruction by the trial judge as to the proper and improper use of such evidence, I cannot conclude that the appellant was prejudiced or received less than a fair trial on that account.

[13] Accordingly, I would set aside the convictions on the cocaine offences, and the sentences pertaining to them, and direct a new trial. The Crown factum says that the appellant admitted guilt to the weapons charges during the proceedings. There is no reference to this in the appellant’s factum. Unless it can be shown that the Crown has erred, the convictions and sentence will stand on the weapons charges.

Released: March 19, 2003 “JJC” “J.J. Carthy J.A.”

“I agree D. O’Connor A.C.J.O.”

“I agree J.C. MacPherson J.A.”