COURT OF APPEAL FOR ONTARIO

DATE: 2003-12-01

DOCKET: C35492

RE: HER MAJESTY THE QUEEN (Respondent) – and – DEON LUDLOW BROWN (Appellant)

BEFORE: McMURTRY C.J.O., LASKIN and ROSENBERG JJ.A.

COUNSEL: Robert F. Goddard For the appellant

Eric Siebenmorgen For the respondent

HEARD: November 26, 2003 – Kingston

RELEASED ORALLY: November 26, 2003

On appeal from conviction by Justice Bruce C. Hawkins of the Superior Court of Justice sitting with a jury dated September 13, 2000.

E N D O R S E M E N T

[1] In our view, this appeal must be allowed.

[2] The witness Anderson was an accomplice and required a complete Vetrovec warning. The warning given by the trial judge failed to alert the jury to the dangers of acting on the unconfirmed evidence of this witness and of certain frailties of the evidence. We are particularly concerned with the trial judge’s use of the expression “gilding the lily”, which may well have detracted from the force of the warning.

[3] This error standing on its own might not have been sufficient to require a new trial. However, the charge to the jury on the frailties of the identification evidence was inadequate.

[4] Mr. Opoku purported to identify the appellant from his voice; yet there was no foundation laid for his ability to identify the appellant’s voice. In those circumstances, the purported voice identification had no probative value. This was not made clear to the jury. To the contrary, the trial judge left this evidence as capable of identifying the appellant. Even if some inference could be drawn that Mr. Opoku had spoken to the appellant on prior occasions, at a minimum a very strong direction of the nature given by the trial judge in R. v. Portillo would have been required.

[5] The instruction on eye-witness identification was also inadequate and failed to bring home to the jury the frailties of the eye-witness identification.

[6] Notwithstanding there was no objection to the charge to the jury, we are of the view that this is not a proper case for the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code. This conviction mostly rested on the testimony of an unsavoury witness and frail identification evidence. It was essential that the jury be properly directed on those matters.

[7] Accordingly, the appeal must be allowed, the convictions set aside and a new trial ordered.

Signed: _____ R. Roy McMurtry C.J.O.

_____ John Laskin J.A.

_____ M. Rosenberg J.A.