DATE: 20040520
DOCKET: C40995
COURT OF APPEAL FOR ONTARIO
CRONK, ARMSTRONG and LANG JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Nancy Dennison
for the respondent
Respondent
- and -
CHANEL ABOKAR FARRAH
Leslie Maunder
for the appellant
Appellant
Heard: April 27, 2004
On appeal from the conviction entered by Justice John F. McGarry of the Superior Court of Justice, sitting with a jury, on October 21, 2003.
ARMSTRONG J.A.:
[1] The appellant was convicted of trafficking in crack cocaine and possession of the proceeds of crime after a trial before McGarry J. and a jury on October 17, 2003. The Crown alleged that the appellant sold a quantity of crack cocaine to an undercover police officer for $40.
[2] The appellant defended the charges on two grounds: first, that no such transaction ever occurred; and second, that if such a transaction occurred, it did not involve the appellant.
[3] The appellant admitted that he was a drug dealer but testified that he would never sell drugs to the undercover police officer, whom he had met on a previous occasion. He testified that his clientele was primarily limited to skinny women dancers – persons who were known to him and were apparently users of crack cocaine.
[4] The appellant raises four grounds of appeal – all related to the judge’s charge to the jury:
The trial judge erred in failing to provide a limiting instruction in respect of the appellant’s admission that he was a drug dealer;
The trial judge erred in his instructions on reasonable doubt when he failed to advise that a reasonable doubt may be derived from a lack of evidence;
The trial judge erred in instructing the jurors on their duties in a manner which was tantamount to a “timid juror” instruction; and
The trial judge erred in his answer to the jury’s question with respect to reasonable doubt by describing the evidence for the Crown in some detail and advising the jury to consider it first and then to consider the evidence for the defence, thereby appearing to shift the onus.
[5] No objection was taken at trial by counsel for the appellant concerning any of the above grounds. However, as this court has often said, a failure to object by counsel is not necessarily fatal to success on appeal.
[6] I am of the view that the trial judge did err in failing to provide a limiting instruction with respect to the appellant’s admission that he was a drug dealer.
[7] The trial judge gave a limiting instruction regarding the appellant’s criminal record, which included convictions for some eleven criminal offences, including two convictions for possession of a narcotic and one conviction for possession of a Schedule 1 substance for the purpose of trafficking. However, he did not provide any instruction on how the jury should deal with the appellant’s admission that he was a drug dealer.
[8] There was a real risk that the jury could infer guilt based solely on the appellant’s admission that he engaged in the selling of illicit drugs. It was therefore incumbent on the trial judge to instruct the jury that even though the appellant had admitted his occupation as a drug dealer in his own defence, the jury should not infer guilt on the specific charges solely because of that admission. In my view, the failure to provide such an instruction constitutes reversible error.
[9] The trial judge’s charge to the jury was in error in failing to tell the jury that a reasonable doubt may be derived from a lack of evidence. However, this was not a case where a lack of evidence was an issue. The major issue in this case was identification. The Crown’s identification evidence was based on a police officer’s testimony that he identified the appellant based on his prior knowledge of, and past dealings with him. The judge’s charge on identification contained the usual cautionary instruction. I would not use the absence of a reference to a lack of evidence as a basis for allowing the appeal.
[10] Counsel for the appellant submitted that the following instruction is the equivalent of a “timid juror” instruction:
Your responsibility is a heavy one and is not to be undertaken lightly, but seriously and courageously, having in mind your duty to the community and your duty to the accused. You must face your responsibilities. You must be honest in your judgment. You must exercise your judgment without fear or without favour.
One of the functions of the State is to protect the life, property and liberty of all of its citizens. Crime must be suppressed when detected and the offender must be dealt with according to law.
Your duty and responsibility in this case is to determine the innocence or guilt of the accused. It is of no concern to you as to the results of your decision in the event that you should find him guilty. The responsibility for what happens as a result of your verdict is mine and for which I accept full responsibility.
[11] Although the words “timid juror” do not appear in the charge, counsel submits that the above excerpt represents a strong exhortation by the trial judge on the duty of the jury to convict. I disagree. This instruction does not attract the same critique that was made by the court in R. v. Karthiresu (K.) (2000), 129 O.A.C. 291 at 293. While the language may be somewhat stronger than the language one usually sees, it is balanced with a reference in the next paragraph in which the trial judge advised the jury: “You owe a high duty to the accused to see that he is not improperly convicted.”
[12] Finally, counsel for the appellant submitted that in answering one of the jury’s questions on reasonable doubt he appeared to reverse the onus when describing the Crown’s evidence and then advising the jury to consider the defence evidence. When one considers the judge’s charge as a whole, I do not agree that he fell into error on this particular aspect of his recharge. He had earlier given the appropriate instruction in accordance with R. v. W.(D.), [1991] 1 S.C.R. 742. I do not think that the jury would have been confused.
[13] In the result, I would allow the appeal, set aside the convictions and order a new trial.
RELEASED:
“MAY 20 2004” “Robert P. Armstrong J.A.”
“EAC” “I agree E.A. Cronk J.A.”
“I agree S.E. Lang J.A.”