DATE: 20050107

DOCKET: C36555

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) -and- SEAN EDWARDS (Appellant)

BEFORE: LABROSSE, LASKIN and LANG JJ.A.

COUNSEL: Michael Lacy and Melanie Dunn for the appellant Rick Visca for the respondent

HEARD: September 30, 2004

On appeal from the conviction entered by Justice Gloria R. Klowak of the Superior Court of Justice on May 26, 2000.

E N D O R S E M E N T

[1] The appellant appeals his conviction by a judge and jury of possession for the purpose of trafficking.

[2] There was evidence that the appellant acted in a suspicious manner that led police officers to approach him. It was their evidence that the appellant gave a fully informed consent to the search. The search revealed some 45 grams of crack cocaine, digital scales, and plastic baggies. The appellant was also carrying $600 in cash. He testified and denied that the drugs and paraphernalia were his and denied knowing they were in his vehicle.

[3] The appellant argues on this appeal that:

a) the trial judge erred in concluding that he was not detained in a manner that entitled him to his s. 10(b) Charter rights.

b) he was prejudiced by an improper cross-examination;

c) he was prejudiced by the manner in which the jury was told to approach his testimony; and

d) he was prejudiced by the trial judge’s jury instruction that people normally intend the natural consequences of their actions.

[4] On the first issue, the appellant contends that the police detained him for investigative purposes. If the appellant was detained then, before the consent search, he was entitled to his s. 10(b) rights.

[5] The appellant’s contention of detention, however, cannot succeed. The trial judge made findings of credibility and findings of fact that preclude a finding of detention. She stated her reasons for disbelieving the accused and for rejecting his evidence “in its entirety.”

[6] Further, she found the evidence of the police officers compelling and convincing. On the basis of that evidence, the trial judge concluded that the accused had not been detained. While she did not properly particularize all aspects of the test for detention, given her findings of fact, the result would not have been different. Her reference to R. v. Lewis (1997), 1998 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont. C.A.) is not the basis for her conclusion. It was only a factor she considered in arriving at that conclusion. Her findings and conclusions on this issue were based on the credibility of the witnesses.

[7] On the second issue, on four occasions, the Crown put to the appellant the testimony of the officers on particular points and asked the appellant if that testimony was wrong. While this questioning, in this case, demonstrated for the jury the inconsistencies between the evidence of the officers and the evidence of the appellant, it would have been preferable had the Crown not taken this approach. Indeed, the Crown should always be extremely careful not to pursue a line of questioning that forces a witness to comment on the credibility of another witness. However, in the particular circumstances of this case, we are satisfied that he did not do so: See R. v. Trochym (2004), 2004 1262 (ON CA), 186 C.C.C. (3d) 417 (Ont. C.A.).

[8] Also on the issue of cross-examination, the appellant alleged that the Crown improperly cross-examined the appellant by questioning the existence of the individual whom the appellant alleged placed the drugs in his car gas tank. We accept that this line of Crown questioning was improper and that, despite the trial judge’s caution that he not do so, the Crown compounded the error by again raising the issue in his closing submissions.

[9] While it may have been preferable if the trial judge had made specific reference to the implications of the Crown’s questions, the potential prejudice occasioned by this improper conduct, in the circumstances of this case, was sufficiently offset by the trial judge’s jury charge. The jury was properly instructed on the presumption of innocence, the burden of proof and that the appellant was not required to prove anything. The jury was also instructed not to speculate or guess on why witnesses were not called.

[10] With respect to the other two grounds of appeal, firstly, we see no error regarding the manner in which the trial judge told the jury to approach the testimony of witnesses. Secondly, the trial judge’s reference that people normally intend the natural consequences of their actions had no application to the present case and would have had no prejudicial effect for the appellant.

[11] Accordingly, the appeal is dismissed.

signed: “J.-M. Labrosse J.A.”

“John Laskin J.A.”

“Susan E. Lang J.A.”