DATE: 2004-01-30

DOCKET: C36988

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and - ASHLEY RONALD BRENT CRAWFORD (Appellant)

BEFORE: ABELLA, GOUDGE and GILLESE JJ.A.

COUNSEL: Anil K. Kapoor, for the appellant Kenneth L. Campbell, for the respondent

HEARD: January 28, 2004

On appeal from the conviction by Justice D. Chilcott of the Superior Court of Justice, sitting with a jury, on May 25, 2001.

E N D O R S E M E N T

[1] We called on the Crown to deal with four of the appellant’s grounds of appeal.

Reasonable Doubt

[2] The first is that he failed to instruct the jury in accordance with R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) In particular, he argues that the failure to refer to the second branch of the W.(D.) test, in a case where the accused testified, was fatal.

[3] While the trial judge did not use the specific language from W.(D.), he made repeated reference to the presumption of innocence and the burden on the Crown to establish the appellant’s guilt “beyond a reasonable doubt”. Defence counsel, who fully reviewed the W.(D.) test in his closing argument, raised no objection to this portion of the charge.

[4] The trial judge reviewed the trial testimony of the appellant in detail, and repeated the principles of the Crown’s burden and the presumption of innocence just before the jury retired to deliberate. This, coupled with defence counsel’s clear statement of the W.(D.) test and his failure to object, lead us to conclude, looking at the jury instructions as a whole, that the jury was not misled as to the “correct burden and standard of proof to apply” (W.(D.) at p. 409).

Out-of-Court Confessions

[5] The appellant also argued, as he did at trial, that the trial judge erred in instructing the jury on how to assess the appellant’s out-of-court confessions. This error, the appellant argues, violates the requirement in R. v. MacKenzie (1993), 78 C.C.C. (3d) 193 (S.C.C.) that a jury be given guidance from a trial judge on how to assess contradictory statements when a previous out-of-court statement is at odds with the accused’s testimony and other evidence at trial.

[6] In our view, the trial judge made no error in not specifically instructing the jury that they were obliged to reject the appellant’s out-of-court confessions if they had a reasonable doubt as to their accuracy. This is so especially where, as here, the jury received proper instruction on reasonable doubt from the trial judge and a fair and balanced instruction on how to approach this evidence. See R. v. White and Cote (1998), 125 C.C.C. (3d) 385 (S.C.C.) at paras. 51-52. Most significantly, the trial judge never told the jury they had to choose one version of the appellant’s evidence over the other.

Cross-examination of Sgt. Leppert

[7] The appellant also argued that he was improperly prevented from cross-examining Sgt. Leppert on comments that Sgt. Leppert made during the preamble to the appellant’s videotaped interrogation on February 10, 1999 and July 12, 1999. He submitted that the resulting prejudice to the appellant was that the jury would not otherwise appreciate why the appellant took responsibility for the murder in his phone calls from the jail.

[8] At the opening of the trial, the defence objected to the admissibility of these statements, resulting in the Crown’s agreement not to tender them into evidence. The appellant’s counsel then attempted, at trial, to cross-examine Sgt. Leppert in connection with only part of the statements, and, in particular, only his, not the appellant’s, comments.

[9] We see no prejudice to the appellant since he himself gave this very evidence and was not challenged by the Crown on it. No harm was done.

Impermissible Inferences

[10] Finally, the appellant argued that the trial judge failed to caution the jury that there was no evidence capable of supporting the Crown’s theories that the appellant had a key, used a lock-pick device, or could have entered the apartment through the windows. At trial, defence counsel objected to leaving these impermissible inferences with the jury.

[11] We do not agree that there was no evidence to support the Crown’s theories of possible entry.

[12] The evidence from Kim Meisel was that a set of the victim’s keys attached to a “ball bearing” style key chain, was missing. This evidence, along with evidence of the appellant’s prior friendship with the victim and his intercepted statements that he entered her apartment through the locked door, which he said he locked on his way out, were capable of supporting the Crown’s theory that the appellant could have gained access through the locked main doors.

[13] The Crown’s alternative theory about the use of a lock-pick device was supported by the evidence of “Wigger’s” involvement on the night of the murder, of the appellant’s and Terry Lyon’s evidence that the appellant knew how to pick a lock, and the appellant’s evidence that he entered and left the apartment through the locked main door.

[14] As for the window entry, there was evidence from the police, including a video re‑enactment, of how easily someone could gain entry into the victim’s apartment through the unlockable bedroom windows by climbing up a nearby pole onto a low roof at the back of the building. The windows were open on the night of the fire, there were scuffmarks on the back wall of the addition, and there was evidence that a previous tenant’s boyfriend had used this method to sneak into the apartment.

Conclusion

[15] We see no errors raised by the remaining grounds of appeal. We would, accordingly, dismiss the appeal.

“R.S. Abella J.A.”

“S. T. Goudge J.A.”

“E.E. Gillese J.A.”