DATE: 20050318

DOCKET: C39126

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL GRAHAM (Applicant/Appellant)

BEFORE:

SHARPE, SIMMONS and LAFORME JJ.A.

COUNSEL:

Mark J. Sandler

for the appellant

Robert Goldstein

for the respondent

HEARD & RELEASED ORALLY:

March 14, 2005

On appeal from the conviction entered by Justice A.J. Roy of the Superior Court of Justice, sitting with a jury, dated February 27, 2002.

E N D O R S E M E N T

[1] The appellant was convicted by a jury of three counts of conspiracy to smuggle, sell and possess alcohol in violation of the Customs Act and the Excise Act and one count of possession of spirits unlawfully imported contrary to the Excise Act.

[2] We agree with the appellant that there are significant errors in the trial judge’s instructions to the jury and that as a result, the conviction must be set aside and a new trial ordered.

[3] The Crown’s case rested on the evidence of two unsavoury witnesses. The appellant concedes that the trial judge gave the jury an appropriate warning with respect to these witnesses. However, we agree with the appellant that the trial judge failed to explain adequately to the jury the position of the defence in several respects.

[4] The trial judge did review in some detail the evidence relied on by the Crown but, he failed to explain to the jury the elements of the evidence derived from the cross-examination of Crown witnesses that favoured the appellant. The appellant relied upon a long list of alleged deficiencies in the Crown’s case. These were not explained to the jury.

[5] The second and related but more serious error, arose from the manner in which the trial judge instructed the jury regarding the police investigation. The trial judge instructed the jury that they were not to base their decision on alleged inadequacy of resources devoted to the police investigation and cautioned the jury about speculating on evidence that was not before them. Read in isolation, this would ordinarily be unobjectionable. However, read in the context of this case, without further elaboration this instruction misstated the defence position and in effect, told the jury to ignore a central argument advanced by the defence. In fact, the police had devoted considerable resources to their investigation including wiretaps, videotapes, body-packs, photographs and searches. The appellant’s contention was that the investigation failed to produce the evidence one might expect implicating the appellant. The issue was not the adequacy or inadequacy of the investigation but rather, that despite the deployment of considerable resources, the police investigation failed to uncover independent support for the evidence of the unsavoury witnesses.

[6] A third related point arises from the trial judge’s instruction that the police surveillance evidence “fortunately” confirmed the evidence of the unsavoury witnesses. There was certainly evidence capable of supporting the evidence of the unsavoury witnesses and the issue should have been left to the jury on that basis. The trial judge corrected his use of the word “fortunately” in his recharge but continued on to still leave the jury with the impression that the surveillance evidence did, in fact, confirm the evidence of the unsavoury witnesses, effectively taking the issue away from them.

[7] We are persuaded that taken together, these three errors unduly and unfairly minimized the defence advanced at trial and removed from the jury’s consideration, significant elements of the appellant’s defence.

[8] We also agree with the appellant that the instructions on conspiracy and the co-conspirators’ exception to the hearsay rule were confusing and deficient. In particular, when instructing the jury on the first step of the Carter test, the trial judge repeatedly told the jury to consider evidence directed against the appellant and other co-conspirators to determine whether or not the appellant was a member of the conspiracy. The jury should have been told to consider only evidence directly admissible against the appellant at this stage.

[9] While the appellant relies on a number of other alleged errors, our determination of the foregoing issues is sufficient to dispose of the appeal and for these reasons, we would allow the appeal, set aside the convictions and direct a new trial.

“Robert J. Sharpe J.A.”

“J.M. Simmons J.A.

“H.S. LaForme J.A.”