DATE: 20041217

DOCKET: C34364

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. ELTON EVERTON JONES (Appellant)

BEFORE:

DOHERTY, LASKIN and ARMSTRONG JJ.A.

COUNSEL:

Anil K. Kapoor and Sarah E. Loosemore

for the appellant

Amy Alyea

for the respondent

HEARD:

December 7, 2004

On appeal from the conviction entered by Justice F. Roberts of the Superior Court of Justice, sitting with a jury, dated February 27, 1998 and the sentence imposed on March 6, 1998.

E N D O R S E M E N T

[1] The appellant was convicted by a jury of seven bank robberies and related offences. The Crown’s case consisted of a videotaped confession by the appellant to all of the robberies, eyewitness identification of varying strength in respect to each of the robberies and circumstantial evidence connecting the appellant to some of the robberies.

[2] The appellant testified in his own defence and denied any involvement in the robberies. He said that he only confessed to the bank robberies because he was viciously beaten and threatened by the police. He testified that the police specifically told him that he could not speak to a lawyer until the videotape was finished. The appellant’s testimony was entirely inconsistent with his appearance on the videotape and was otherwise unsupported by any evidence.

The Grounds of Appeal

Was the videotaped statement admissible?

[3] The appellant was advised of or reminded of his right to counsel four times during the series of interviews with the police, which culminated in the videotaped statement and the appellant’s identification of himself on the photos taken by the bank surveillance cameras. The appellant was first advised of his right to counsel when arrested by the Peel police. The arrest did not relate to the charges to which the appellant eventually confessed in the videotaped statement. These officers told the appellant a second time of his right to counsel before they interviewed him at the police station. On both occasions, the appellant said he did not want to call a lawyer.

[4] The appellant was interviewed by Toronto police officers about three hours later. They told him they were investigating the robbery of a Toronto-Dominion Bank. This was one of the robberies that the appellant eventually confessed to in the videotaped statement. The officers advised the appellant of his rights to counsel under s. 10(b) of the Charter. The appellant said he did not wish to speak to a lawyer. In the course of the interview, the appellant admitted that he robbed the Toronto-Dominion Bank. He also agreed to provide a videotaped statement. The officers asked the appellant whether he had robbed any other banks. The appellant replied:

Yeah, I need the money and that’s where you get money.

[5] The officers told the appellant that he could tell them about the other robberies during the videotaped statement. The police arranged the equipment and commenced the videotaped statement a short time later. At the outset of the videotaped statement, the police reminded the appellant that he had the right to speak to a lawyer and asked him if he wanted to phone his lawyer at that time. The appellant declined to speak to a lawyer. The officers proceeded to question the appellant about the robbery at the Toronto-Dominion Bank. The appellant made a full confession. The officer then asked the appellant if he wanted to say anything about “any other involvement with the police”. The appellant declined to say anything. The second officer then asked:

Have you done any other bank hold-ups?

[6] The appellant replied:

Quite a few, quite a few.

[7] The police proceeded to question the appellant about several specific robberies. He admitted all but one. The appellant then went on to identify himself in various photographs taken by bank surveillance cameras at the scenes of the robberies.

[8] Counsel submits that when the police moved from the specific robbery of the Toronto-Dominion Bank to questions about other robberies in the course of the videotaped statement, they were obligated to reiterate the appellant’s right to counsel under s. 10(b). Counsel contends that when the police questioning moved to the other robberies, this constituted a “fundamental and discrete” change in the course of the investigation.

[9] We disagree. The appellant was fully aware of his right to counsel. He had been told of that right on four occasions and declined to speak with a lawyer. When he was reminded of his right to counsel at the outset of the videotaped statement, he knew that the police were going to question him about the Toronto-Dominion Bank robbery and any other robberies that the appellant was prepared to tell the police about. He understood the nature of his jeopardy. He knew that it would extend to any of the bank robberies that he chose to tell the police about. The appellant had sufficient information to permit him to make an informed decision as to whether he wished to speak to a lawyer before talking to the police about the various robberies he had committed. In rejecting this argument, the trial judge referred to and, in our view, properly applied R. v. Evans (1991), 1991 98 (SCC), 63 C.C.C. (3d) 289 at 306-307 (S.C.C.). The trial judge did not err in admitting the statements.

Did the trial judge adequately instruct the jury on the potential frailties of the photo lineups?

[10] Several witnesses at the various bank robberies were shown photo lineups containing a picture of the appellant. Some witnesses identified the appellant as the bank robber; others did not. There were potential shortcomings in the photo lineups. These were thoroughly canvassed during the examination of various witnesses. During his instructions, the trial judge summarized much of this evidence in reviewing the testimony of those witnesses. He also referred to some of this evidence in setting out the position of the defence.

[11] The trial judge gave an appropriate warning with respect to the frailties inherent in identification evidence. In the course of cautioning the jury with respect to identification evidence, the trial judge told the jury that it should consider the fairness of the photo lineups in assessing the evidentiary value of the identifications made from those photo lineups. The trial judge told the jury that they should be concerned with anything that might have made the appellant’s photograph stick out from the other photographs used in the lineups.

[12] Counsel for the appellant contends that while the trial judge properly cautioned the jury to consider the fairness of the photo lineups in assessing the weight to be attributed to the identification evidence, he failed to assist the jury by outlining to them various factors which could affect the fairness of the lineup. The trial judge had referred to many of these factors in other parts of his instruction, but he did not bring them together and repeat them when telling them to consider the fairness of the photo lineups.

[13] There are different ways to achieve the same result in a jury instruction. While it may have been better when specifically addressing the fairness of the lineup to remind the jury of the factors which could affect the fairness of the lineup, the ultimate issue is whether the jury appreciated the need to pay careful attention to the fairness of the lineup and appreciated the evidence which could impact on its assessment of the fairness of the lineup. When the instructions are considered as a whole, there can be no doubt but that the jury had a thorough appreciation of the factors which could affect the fairness of the lineup and the evidence relevant to those factors.

[14] We would add, having examined the photo lineups, that we do not think it would have assisted the appellant’s cause to dwell on the fairness of those lineups.

Did the trial judge’s interventions and treatment of defence counsel result in a miscarriage of justice?

[15] There are two aspects to this submission. Counsel contends that the trial judge’s interventions demeaned defence counsel and thereby denigrated the defence being advanced by counsel to the extent that the appellant did not receive a fair trial. Counsel further submits that the trial judge’s interventions during defence counsel’s attempt to question a defence witness (Sergeant Townley) effectively prevented defence counsel from putting the defence position forward through that witness.

[16] We reject both submissions. Insofar as the second submission is concerned, nothing done by the trial judge prevented counsel from eliciting the evidence that he sought from Sergeant Townley. Indeed, the trial judge’s ruling as to the scope of the questioning of Sergeant Townley was, if anything, overly favourable to the defence. It is at least arguable that the evidence that the defence was allowed to elicit through this witness was entirely inadmissible.

[17] With respect to the first branch of this argument, there were no doubt many interventions by the trial judge, some of which were unnecessary and others which should have taken place in the absence of the jury. It must also be said, however, that some of the interventions were proper and necessitated by defence counsel’s failure to comply with basic rules of evidence. It is also important in considering the effect of these interventions to observe that although the trial judge became impatient from time to time, by and large, he retained a judicial demeanour in his treatment of defence counsel.

[18] We would not give effect to this ground of appeal.

Did the trial judge err in failing to instruct the jury to consider the evidence relevant to each count separately?

[19] The trial judge told the jury to consider each count separately and return a separate verdict on each count. He did not, however, tell the jury what evidence was admissible on each count. To the contrary, parts of his instruction suggested to the jury that they could consider all of the evidence on each of the counts. For example, when instructing the jury on identification evidence, the trial judge told the jury to consider that evidence “as a whole”. This was misdirection. The Crown did not suggest that evidence of identification on one count was admissible as “similar fact” evidence on the other counts. The jury should have been told to give separate consideration to the identification evidence referable to each count. Absent that instruction, we agree with counsel for the appellant’s submission that there was a real danger of “cross pollination” whereby strong identification evidence on one count could be used to buttress weaker identification evidence on other counts. The failure to tell the jury that it had to give separate consideration to the identification evidence as it related to each count constituted misdirection.

Can the proviso be applied?

[20] The failure to tell the jury to consider the identification evidence separately as it related to each count cannot be described as a minor or trivial error. The proviso can only be applied if the evidence against the appellant was overwhelming. We are satisfied that it was. The appellant gave a detailed videotaped confession to the robberies. He could not deny that he had made the confessions.

[21] If the jury accepted the videotaped statement as true, the appellant’s conviction on all counts was inevitable. The only thing standing in the jury’s way of accepting that evidence was the appellant’s evidence that he was viciously beaten and threatened. The videotape itself was entirely inconsistent with the appellant’s allegations. In our view, no reasonable jury would believe or have any doubt about the falsity of the appellant’s allegations that he was beaten and threatened. Once those allegations are rejected, the statements would inevitably have been accepted as true and equally inevitably would have led to the conviction of the appellant. This is an appropriate case in which to apply the curative proviso.

[22] The appeal is dismissed.

“Doherty J.A.”

“John I. Laskin J.A.”

“Robert P. Armstrong J.A.”