DATE: 20050218

DOCKET: C40702

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – RALTON GEORGE MYERS (Appellant)

BEFORE:

WEILER, GOUDGE and GILLESE JJ.A.

COUNSEL:

Leslie Maunder

for the appellant

Anya Weiler

for the respondent

HEARD:

February 17, 2005

On appeal from the conviction entered on May 15, 2003 and the sentence imposed on September 3, 2003 by Justice Donald S. Ferguson of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] On May 15, 2003, after a jury trial, the appellant was convicted of possession of crack cocaine for the purpose of trafficking. He was sentenced to eighteen months imprisonment and three years probation. The appellant appeals from his conviction and sentence.

[2] With respect to conviction, the appellant alleges that the trial judge erred in his instruction to the jury respecting the use they could make of his demeanor shortly after his arrest. In order to appreciate this ground of appeal some elaboration of the facts is necessary.

[3] On March 28, 2001 two drug surveillance officers conducted surveillance at the back of an apartment building, on suspicion that the building was the site of drug activity. The next evening, the officers returned to the building. The same Hyundai as they had observed on the first night appeared again. The officers, who were dressed in plain clothes with police badges around their necks, moved in to arrest the driver. One of the officers reached into the driver’s side door and grabbed the driver’s arm. The appellant tensed up and initially resisted being pulled out of the car. When the appellant was informed that the men grabbing him were police officers, he relaxed. When advised that the police had located a small package of cocaine and a gun the appellant again tensed up, began to visibly sweat and swore.

[4] In his charge to the jury the trial judge commented on the demeanor evidence and instructed them as follows:

You must be careful about drawing inferences from circumstantial evidence. Sometimes it is consistent with different inferences and it is unsafe to draw any inference.

In this regard, I must say something about the evidence concerning Mr. Myers’ reactions during and after his arrest. There was mention of tension, struggling, relaxing, exclaiming “ a fuck” and sweating. We have learned from a number of famous wrongful convictions that evidence about people’s demeanour is particularly unreliable as proof of guilt. People react differently on different occasions. Someone might react in any of the ways mentioned in the evidence of the police and of Mr. Myers for any number of reasons. The person might have thought he was going to be robbed. He might have been resisting arrest. He might have believed he was innocent . He might have believed he was guilty. He might have believed he was guilty of an offence which is not the offence being tried in this trial, or he might have been nervous or scared even though he was innocent.

For these reasons, I am suggesting to you that the evidence about how Mr. Myers reacted has no value in proving him guilty or not guilty of this offence. You may find it has value in assessing the credibility and reliability of the testimony of the witnesses but I leave that to you.

[5] The appellant submits that the demeanor evidence that he relaxed when he realized he was being hauled out of the car by police officers was part of the res gestae, that the evidence ought to have been considered by the jury in determining his guilt and that the trial judge erred in instructing the jury as he did.

[6] We would agree. The evidence that the appellant relaxed on learning that the persons who pulled him out of the car were police officers was an item of demeanour evidence that was reasonably capable of supporting an inference favourable to the accused. It cannot be said to have no little probative value that it could properly be taken away from the jury. Nor was it for the trial judge to weigh the countervailing evidence and net it out. It was for the jury to weigh the two items of evidence. The evidence had already been admitted and the jury had heard it. The Crown and defence were content to let the jury consider the evidence as part of all the evidence. The prejudice to the appellant was that, although the jury were told they could use the evidence to assess the appellant’s credibility, they could not use it in deciding whether, although they did not believe him, they had a reasonable doubt on the evidence.

[7] We would allow the appeal with respect to conviction and order a new trial. As a result, there is no need to deal with the sentence appeal.

“Karen M. Weiler J.A.”

“S. T. Goudge J.A.”

“E. E. Gillese J.A.”