DATE: 20030217

DOCKET: C35479

COURT OF APPEAL FOR ONTARIO

WEILER, CHARRON and SHARPE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Chantal Proulx

for the respondent

Respondent

• and -

JEAN MOISE JEAN LOUIS

Elisabeth Widner

for the appellant

Appellant

Heard: February 4, 2003

Released orally: February 4, 2003

The appellant, Jean Moise Jean Louis, appeals against the conviction imposed by Justice Monique Métivier of the Superior Court of Justice, sitting with a jury, dated March 31, 2000, and against the sentence imposed by Justice Métivier, dated November 15, 2000.

BY THE COURT:

[1] The appellant was tried before a judge and jury on three counts of possession of the proceeds of crime and one count of possession of narcotics for the purposes of trafficking. At the close of the Crown’s case, a directed verdict of acquittal was entered with respect to a charge of possession of money obtained from crime in relation to $278 found in the pocket of the appellant’s jeans. In her charge to the jury, the trial judge also directed a verdict of acquittal in relation to $1,050 found in a safety deposit box in the appellant’s name. The appellant was convicted of possession of $1,700 knowing that the proceeds had been obtained as a result of crime in relation to monies found in a linen closet in the apartment he shared with his two co-accused. He was also convicted of possession of cocaine for the purpose of trafficking in respect of 18.3 grams of crack cocaine found in his bedroom in the same apartment. The appellant was sentenced to a term of 22 months’ imprisonment. He has served his sentence.

[2] The appellant appeals his convictions and applies for leave to appeal his sentence. On the appeal against the convictions, the appellant raises three grounds in respect of the trial judge’s charge to the jury, and a fourth ground alleging that the verdict was unreasonable. Counsel for the appellant quite properly did not pursue the fourth ground of appeal in her oral submissions.

[3] In our opinion, the trial judge’s charge to the jury discloses three errors in respect of items of evidence that were significant in the trial. Consequently, we do not accept Crown counsel’s submission that the curative proviso can be applied. It is our view that a new trial must be ordered.

[4] The first error relates to the jury instructions on the co-conspirator’s exception to the hearsay rule established in R. v. Carter (1982), 31 C.R. (3d) 97 (S.C.C.). This rule became relevant because of the following evidence adduced by the Crown.

[5] The search of the appellant’s apartment was preceded by three cocaine buys conducted by an undercover officer, Detective Tanguay, during the course of the preceding month. These buys involved the appellant’s co-accused but did not involve the appellant. Although the appellant was not charged in relation to any of the three transactions, the Crown adduced evidence purportedly linking him to one of the transactions in an attempt to connect the appellant to a conspiracy to traffic in drugs with the co-accused. The Crown’s purpose in connecting the appellant to the conspiracy was to have the jury consider a hearsay statement made by one of the co-accused under the co-conspirator’s exception to the hearsay rule. The statement could arguably be taken as indicating that the appellant was involved with the co-accused in drug trafficking and that, consequently, it could be inferred that he had knowledge and control of the drugs and money found in the apartment.

[6] In her initial charge to the jury on the use that could be made of the co-accused’s statement, the trial judge did not instruct the jury in accordance with the first step in Carter. She did not tell the jury that before they could consider the appellant’s possible membership in the common enterprise (the second step in Carter), they had to first consider whether, on all the evidence, they were satisfied beyond a reasonable doubt that a common enterprise to traffic into drugs in fact existed.

[7] The trial judge also failed to instruct the jury in accordance with the third step in Carter. She did not tell them that even if they were to conclude that the appellant was a member of the conspiracy (in accordance with step two of the Carter instruction) they could not conclude that he was guilty on that basis alone, without further being satisfied beyond a reasonable doubt on all the elements of the offences. In addition, the trial judge did not assist the jury in any meaningful way as to what evidence could be considered at each step of the Carter test as she was required to do.

[8] Both counsel objected to the charge. In her recharge to the jury, the trial judge still omitted to charge the jury on the third step of the Carter instruction. As well, the purported correction in respect of the first step was out of sequence and confusing.

[9] In our view, the jury was not provided with the assistance that it needed to properly consider this important item of evidence.

[10] The second error of significance relates to the trial judge’s failure to direct the jury on the frailties and inherent dangers of eyewitness identification. During the search of the apartment, Detective Tanquay, upon seeing the appellant, purportedly identified him as a person he had seen conducting surveillance during one of the three undercover buys from the appellant’s co-accused. The identification in question was frail in many respects and also contradictory to some other items of evidence. This identification, if accepted by the jury, was a potentially significant piece of direct evidence linking the appellant to the common enterprise. Further, Crown counsel stressed the importance of that evidence in his address to the jury.

[11] The inherent frailties of eye witness identification are well-known to the courts. Despite the lack of objection from counsel on this point, it is our view that it was incumbent upon the trial judge to alert the jury to the dangers of relying on this kind of evidence.

[12] The third error relates to the evidence that formed the subject-matter of the directed verdicts of acquittal. While the evidence of the money found in the appellant’s jean pockets was of no consequence, the same cannot be said of the $1,050 found in the safety deposit box. In view of the directed verdict of acquittal, the correctness of which is not in issue before us, Crown counsel concedes that the money could not be considered as proceeds of crime and that its presence was therefore irrelevant to the remaining charges before the court. While the trial judge referred to this evidence in her instructions, she gave no instruction to the jury on the use that could be made of it. In our view, it was incumbent upon the trial judge to direct the jury to disregard this evidence.

[13] Accordingly the appeal is allowed, the conviction is set aside and a new trial is ordered.

Released: FEB 17 2003 Signed: “K.M. Weiler J.A.”

KMW “Louise Charron J.A.”

“Robert J. Sharpe J.A.”