DATE: 20050617

DOCKET: C40279

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WINSTON STEWART (Appellant)

BEFORE:

WEILER, SIMMONS and GILLESE JJ.A.

COUNSEL:

David E. Harris

for the appellant

Andrew Sabbadini

for the respondent

HEARD & RELEASED ORALLY:

June 16, 2005

On appeal from the conviction entered on April 23, 2003 and the sentence imposed June 9, 2003 by Justice A. Paul Dilks of the Superior Court of Appeal, sitting alone.

E N D O R S E M E N T

[1] The appellant appeals his conviction for one count of trafficking in cocaine by Dilks J. on April 23, 2003. The appeal from sentence has been abandoned.

FACTS

[2] On February 15, 2002, Detective Constable Williams and a number of other officers were engaged in an undercover drug operation in the Queen and Sherbourne area of Toronto. Officer Williams approached a man who was later identified as a Mr. Walsh and asked Walsh if he had any “rock” i.e., cocaine. The officer followed Walsh to a bus shelter located a few blocks away. Walsh went off in another direction to procure the drugs. A number of surveillance officers pursued him covertly.

[3] Officers then observed Walsh as he walked over to the appellant on the South side of Queen St. The appellant seemed to hand something to Walsh, the middle man, who then returned to Officer Williams and gave him the crack cocaine in exchange for $40. Walsh was subsequently arrested.

[4] When the appellant was arrested shortly thereafter, there was no evidence of either the drugs or the money used by Officer Williams, on his person.

[5] It was brought out in cross-examination that when Walsh first approached Officer Williams, he was carrying a white plastic bag in his right hand. He could not recall whether Walsh still had this bag when he left the bus shelter.

[6] At trial, several of the surveillance officers testified and there was conflicting evidence as to the hand in which the plastic bag was being held by Walsh at various points in time.

Issues

[7] The issues on appeal are:

(1) Did the trial judge err with respect to the burden of proof?

(2) Did the trial judge err in assessing the importance of the evidence of the bag carried by Walsh and in evaluating the credibility and reliability of Officer Nicolle’s evidence[^1]?

1. Did the trial judge err with respect to the burden of proof?

[8] First, the appellant takes issue with a comment made by the trial judge on the opening day of his trial. As the Crown was making an opening statement, the Crown was interrupted by the trial judge who said: “This is the same thing you’d read out to me if Mr. Stewart had had the grace to plead guilty, I suppose… Don’t take that as any indication of my position in the matter, Mr. Dwyer [defence counsel].” The trial judge then went on to say that his comment was just an “ill-conceived attempt at humour.”

[9] In addition, at the end of the case, the trial judge commented that while he was entitled to draw an adverse inference from the appellant’s failure to testify, he “specifically” refused to do so. Although the appellant concedes that the trial judge must be taken at his word that he made no such inference, he nonetheless argues that such an inference may have played a part in the reasoning process. He submits that these two comments taken together demonstrate that the trial judge misunderstood the right to silence, the right against self-incrimination and the presumption of innocence. He submits that without a remedial self-instruction this court cannot be assured that the trial judge did not err.

[10] We disagree. Immediately after making his comment at the outset of trial, the trial judge recognized that it was an irrelevant comment. The trial judge specifically cautioned defence counsel not to take his comment as any indication of his position on the matter. Defence counsel raised no objection. The trial judge’s reasons clearly demonstrate that he properly understood that the onus was on the Crown to prove its case beyond a reasonable doubt.

[11] The trial judge must be taken at his word that he was not drawing an adverse interest with respect to the appellant’s failure to testify. The appellant concedes that the Crown had made out a prima facie case. The appellant had not put forward any evidence that would require that the Crown negative an affirmative defence. In this limited sense, the trier of fact may use the silence of the accused. See R. v. Noble (1997), 1997 388 (SCC), 114 C.C.C. (3d) 385 at para 89. The appellant was not convicted by virtue of his silence, but rather due to the strength of the Crown’s case against him.

2. Did the trial judge err in

(a) assessing the importance of the evidence of the bag carried by Walsh and in

(b) evaluating the credibility and reliability of Officer Nicolle’s evidence?

[12] At trial, defence counsel argued that the conflicting evidence with respect to the hand in which Mr. Walsh was holding the white plastic bag ought to give rise to a reasonable doubt as to the appellant’s guilt. In particular, he argued that if the bag had indeed been in Walsh’s left hand as several officers testified, it would have been very difficult for him to have passed the crack cocaine to the appellant with that same hand. The appellant submits that the trial judge erred in failing to address the inconsistencies with respect to this part of the evidence.

[13] In our opinion, the trial judge clearly recognized the importance defence counsel was attaching to the bag issue and addressed it. The trial judge was not left with a reasonable doubt. The appellant has not persuaded us that the trial judge misapprehended the evidence on this point.

[14] One of the Officers, Officer Nicolle, testified that he never observed the plastic bag alleged to have been in Mr. Walsh’s hand. The trial judge stated that: “Nicolle could have embellished his testimony by saying that he did see something pass between the two, but he did not do so, and the fact that he did not boosts his credibility as a witness.” The appellant argues that the trial judge’s comment is indicative of error. The appellant alleges that the trial judge appears to have confused reliability and credibility.

[15] We do not accept this submission. The trial judge’s finding amounted to a conclusion that the witness was candid. We accept the plain words that the trial judge used and see no error in his assessment of the witness’s evidence.

[16] Accordingly the appeal is dismissed.

“K. M. Weiler J.A.”

“Janet Simmons J.A.”

“E. E. Gillese J.A.”

[^1]: Nicolle was one of the surveillance officers.