DATE: 20060407
DOCKET: C37725
COURT OF APPEAL FOR ONTARIO
GOUDGE, ARMSTRONG and BLAIR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
LUC GIROUX
Appellant
Andras Schreck and Jennifer Trehearne for the appellant
Croft Michaelson and Marco Mendicino for the respondent
Heard: November 3, 2005
On appeal from convictions registered by Justice Catherine Aitken of the Superior Court of Justice, with a jury, on October 7, 2001, and, if leave be granted, on appeal from the sentence imposed following those convictions.
R.A. BLAIR J.A.:
OVERVIEW
[1] This appeal arises out of a series of incidents in the Cornwall area, involving the sale and importing of tobacco and alcohol products, and the trafficking in cocaine. Following an undercover investigation, and after a lengthy jury trial, the appellant was convicted of the following offences:
- Selling imported liquor, contrary to the Excise Act, R.S.C. 1985, c. E-14 (two counts);
- Smuggling spirits into Canada, contrary to the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (two counts);
- Selling imported spirits, contrary to the Customs Act (two counts);
- Possession of property obtained through the commission of an offence, contrary to the Customs Act (two counts); and
- Trafficking in cocaine, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] He was acquitted on three counts of selling tobacco, possession of the proceeds of crime, and conspiracy to traffic in cocaine. Justice Aitken sentenced the appellant to twelve months imprisonment on the trafficking count and to ninety days imprisonment plus a $10,000 fine on the other counts, to be served concurrently. He appeals both convictions and sentence.
[3] With respect to conviction, the appellant raises five grounds of appeal. He submits that the trial judge improperly:
a) discharged a juror at the end of the first day of deliberations on the basis that the juror’s misconduct was threatening the jury’s ability to arrive at a proper verdict;
b) gave the jury an instruction in accordance with “the rule in Browne v. Dunn”, when such an instruction was inappropriate;
c) excluded the appellant and his counsel from portions of a stay proceeding that arose in mid-trial as a result of the late disclosure of police notes;
d) failed to instruct the jury correctly on how reasonable doubt applied to credibility in the circumstances of the case (the “W. (D.)” error); and
e) failed to put an “agent for the purchaser” defence to the jury.
[4] With respect to sentence, the appellant argues that the trial judge made several errors in failing to impose a conditional sentence.
[5] For the reasons that follow, I would dismiss both appeals.
FACTS
[6] The appellant is a plumber by trade, living in the Cornwall area. In March 1997, he was approached by an undercover RCMP officer, Sergeant Ronald Nicholson, as part of an investigation that had been initiated as a result of some tips the police had received. Sgt. Nicholson went to see the appellant at his warehouse and asked him to arrange the sale of some smuggled alcohol. Subsequently, he asked the appellant to help him buy tobacco and cocaine. Various transactions arising from these requests ultimately resulted in the charges that are the subject matter of this appeal.
[7] Those transactions may be divided into three groups.
Smuggled Spirits
[8] The first involved Sgt. Nicholson’s acquisition, through the appellant, of ninety cases of smuggled spirits, in two different transactions, for approximately $10,800. Nicholson contacted the appellant to place the order using a code for ordering alcohol normally employed in the smuggling trade but not previously discussed between the two men. The appellant understood the code. He received a commission on these transactions.
Cocaine
[9] During the second alcohol transaction, Sgt. Nicholson raised the subject of obtaining cocaine. The appellant told him that he knew about the “white” (meaning cocaine) because he knew some people and that he could get some prices for Nicholson. Nicholson indicated that he was interested and asked the appellant to get some prices, which the appellant ultimately did. In August 1997, the appellant took Nicholson to the home of a cocaine dealer, Marcel Desgrosseillers, and introduced the two. He was present during their discussions, but did not participate in them. Desgrosseillers subsequently sold cocaine to Nicholson on several occasions. The arrangements for these transactions were made directly between the undercover officer and Desgrosseillers, and the appellant was not present for any of the exchanges. However, Nicholson received a page from the appellant on two occasions using the code number “6969”. Desgrosseillers had given that number to Nicholson as the pager code for his source.
[10] In late September, the appellant approached Sgt. Nicholson saying that he did not sell cocaine but that he did set up deals for a fee, and wanting to know when he was going to get his “cut” from the Desgrosseillers deals. The cut was to be paid by Nicholson. Nicholson agreed to pay $500 per kilogram of cocaine (but never did).
Tobacco
[11] The third transaction – which preceded the cocaine transactions – involved a small amount of tobacco. Sgt. Nicholson testified that in June 1997, when he attended at the appellant’s warehouse to discuss the price of cocaine, the appellant asked him if he was interested in buying smuggled tobacco and offered to show a sample. They went to an apartment on his property, where there was a quantity of tobacco. A woman named Maryanne was present in the apartment. Sgt. Nicholson said he paid the appellant for some tobacco. The appellant maintained the tobacco transaction took place between Sgt. Nicholson and Maryanne. He was not convicted of the tobacco charges.
[12] The appellant testified at trial. He acknowledged that he had been involved in the liquor transactions and that he had received a commission for his role, but maintained that he did not know the alcohol was smuggled. With respect to the cocaine he again acknowledged that he had introduced Nicholson to the cocaine dealer, Desgrosseillers, but denied that he intended to aid the dealer or that he had told Nicholson he expected to be paid for setting up the deal. He explained that he wanted to see the drug deal done so that he could report it to another RCMP officer, Constable McDonnell. The appellant said he wanted to see Desgrosseillers and Nicholson arrested because he did not like Desgrosseillers dealing in drugs and because he thought if Nicholson got arrested his car would be seized and he would be able to pick it up “dirt cheap”. Constable McDonnell testified and confirmed that the appellant had acted as an informer for him in the past and that the appellant had advised him in September that a bad guy named “Nick” was supplying Desgrosseillers with drugs. The jury apparently did not accept that the appellant’s version of these events raised a reasonable doubt.
ANALYSIS
The Discharge of Juror No. 7
[13] In the evening of the first day of jury deliberations, the trial judge re-convened court in the absence of the jury and advised counsel that she had received a note from the foreperson of the jury. The note said:
Dear Judge Aitken,
8:10pm tonight, October 5, 2001, [juror seven] stood up, raised his voice, slammed the table, yelled and pointed to another member of the jury and said, “When you get the f___ out, I will get you.”
Prior to supper, [juror seven] asked to be removed from the Jury but we asked that he wait until supper. We thought a break would calm things down.
Some of us are fearful for our safety and we do not wish for [juror seven] to return.
This is the second outburst. This morning there was another incident with another jury member.
Please advise.
[The foreperson]
*Some jury members believe that we should have spoke [sic] earlier.
*We believe [juror seven] is under a lot of mental stress and may need assistance.
[14] After reading the letter, the trial judge asked counsel for submissions about how the situation should be handled. They agreed that an inquiry should be conducted under s. 644 of the Criminal Code to investigate the incident and determine whether there was reasonable cause to dismiss the juror in question. Section 644(1) provides that:
Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror [emphasis added].
[15] Counsel also agreed (defence counsel albeit with certain reservations) that the court should follow the procedure approved by the British Columbia Court of Appeal in R. v. Hanna (1993), 1993 1425 (BC CA), 80 C.C.C. (3d) 289. That is, the process would take place in open court but would not be an adversarial one. Counsel would not have the right to put questions to the juror directly, but could suggest questions that the judge might put to him and make submissions on the issue. This process was adopted. Defence counsel did suggest several open-ended questions to be put to the juror.
[16] Juror seven was then brought into the courtroom, but not sworn. The other jurors were not present. The trial judge instructed him that in answering the questions he was not to divulge the contents of the jury’s discussions, and he did not. Juror seven admitted the allegations regarding his raised voice and the fact that he stood up and slammed the table. He challenged the account of his swearing at another juror, maintaining that his behaviour was the result of the other juror having sworn at him first. He told the trial judge he wanted to remain as a juror. The trial judge reminded him of the importance of conducting himself in a respectful way with the other jurors. When she asked him if he could stay on with the jury in this fashion, he answered that he would do his best but he honestly did not know. The trial judge then asked counsel if they had any further questions they would like her to ask the juror. Neither provided any.
[17] After juror seven had been examined, the foreperson of the jury was questioned about the situation in open court, but in the absence of the rest of the jury. She, too, was instructed that she was to keep the jury deliberations secret, and did so. She was asked to explain what had happened in the jury room.
[18] The foreperson advised the trial judge that some of the other jurors were afraid of juror seven and that she did not think he should remain on the jury. She said there had been a number of outbursts, beginning that morning when the jury commenced deliberations. She indicated that juror seven had said to another juror, “wait until this jury is over, I’m – I’m going to go after you” and that juror seven “rose as if he was going to hit this person”, although he never actually did so. The foreperson indicated that it was her opinion juror seven was under stress at home or elsewhere and for that reason could not handle the stress of being on the jury. She said she believed the jurors were all “fearful now of saying our opinions” and that for this reason the jury would not be able to get to a proper verdict if he returned. Finally, the foreperson suggested that juror seven might have a medical issue as he had at one point indicated something to the effect that he would not allow it to come to the point where he would be put back into the hospital.
[19] During the questioning of the foreperson, both the Crown and the defence were afforded the opportunity to pass suggested questions up to the trial judge. Again, neither did so.
[20] The trial judge then asked the foreperson to return to the jury room, brought juror seven back into the courtroom and asked if he had any medical issues. He denied that he was under a lot of stress or that he had any problems dealing with stress, although he admitted to sometimes going “overboard”.
[21] After juror seven left the courtroom, the trial judge heard submissions from counsel. Crown counsel recommended that juror seven be removed from the jury. Defence counsel took the position that the juror should not be removed and questioned whether the whole jury was impartial.
[22] At this point, the trial judge called the court constable who had been sitting outside the jury room when the shouting incident occurred. The constable confirmed some of what the foreperson had told the trial judge, to the extent that he had been privy to what had happened. He said that he heard yelling and the sound of somebody banging on the desk. As he entered the jury room, juror seven came at him and said, “I can’t take this and I’m going to get them and I’m going to get them”. The constable stated that he tried to calm juror seven down, but that he just “went into a rage”. He said the other jurors were “very, very scared”. He had never seen conduct like this before in his experience working with juries.
[23] Immediately following the constable’s testimony, the trial judge recalled juror seven into the courtroom and, without hearing further submissions, discharged him. Addressing juror seven, she said:
I’ve come to the conclusion that I think it would be best if I discharge you as a juror . . . It’s my decision and I’m not taking it lightly. But I’m concerned about the ability of the twelve of you to actually have deliberations together, which has to happen for the jury process to work. The other jurors are feeling frightened.
[Juror seven agreed this was so.]
When they’re feeling frightened, it means they’re not going to be able to express the views the way they feel they need to. And that’s just not a situation which we can have. We need to have jurors who feel they can say what they want to say without fear . . .
And we’ve had a long trial. We need a jury to be able to do their deliberations and render their verdict and I feel that that is not going to be possible with yourself continuing as a juror.
[The trial judge concluded by expressing her appreciation for juror seven’s having performed his civic duty by attending and listening diligently during the long trial, and by thanking him for his services.]
[24] The appellant subsequently brought an application for a mistrial. The trial judge dismissed the application.
[25] The appellant raises three arguments concerning this ground of appeal. First, he submits that the inquiry ought to have involved the entire jury. Secondly, he contends that the enquiry made by the trial judge was insufficient. Finally, he says that there was a denial of natural justice because juror seven was dismissed immediately after the court constable’s testimony, without counsel being given an opportunity to make any further submissions.
[26] In my view, the trial judge committed no reversible error in discharging the juror or in her conduct of the proceedings leading up to that decision.
[27] There is no doubt – to quote Dickson J. in Basarabas v. The Queen (1982), 1982 216 (SCC), 2 C.C.C. (3d) 257 (S.C.C.) at 265 – that “an accused should not be lightly deprived of his or her right to be tried by a jury of twelve persons.” However, s. 644 of the Code provides the trial judge with a broad discretion to discharge a juror if satisfied the juror cannot continue to act “by reason of illness or other reasonable cause”, and the judge’s decision is entitled to considerable deference in that regard.
[28] Nor is there any doubt that cases involving internal strife amongst jurors[^1] pose particularly problematic issues, and must be dealt with in a careful and sensitive fashion – as the trial judge did here. It is imperative that neither the court, in addressing the situation, nor the jury, in responding to it, violates the rule preserving the confidentiality of jury deliberations. However, adherence to this cardinal principle constrains the court’s ability to make inquiries about the internal strife. In addition, the court must be alert to the possibility that the internal strife in question is merely reflective of an inability on the part of the jury to agree, as opposed to an inability to deliberate. There is always the potential that the request to eliminate the strife issue is merely an attempt by a majority of jurors to cast off a dissenting minority opinion. Finally, the court must be conscious of the danger that the entire jury may be tainted by the internal strife – not just the particular juror or jurors who are subject to the inquiry – and its ability to deliberate compromised, thus impairing the integrity of the jury deliberation process.
[29] The appellant argues that, in these circumstances, the trial judge was confined to determining whether the jury as a whole was not able to deliberate. Attempting to sort out which juror was responsible for the jury’s problems was not permissible, he contends, since the trial judge could not make an accurate determination of that question without considering the substance of the jury’s deliberations. In the appellant’s submission a trial judge must address the jury as a whole in an effort to resolve the problem and thereafter has only two options available: exhort the jurors to continue with their efforts (if satisfied they are able to continue deliberations), or declare a mistrial.[^2]
[30] I do not accept the argument that a trial judge is confined to those options in cases of internal strife amongst jurors during their deliberations. There appear to be no Canadian authorities that have dealt directly with this point. In other jurisdictions, however, courts have approved the dismissal of jurors for “just cause” in similar circumstances: see, for example, United States v. Shotikare, 779 A.2d 335 (D.C.C.A. 2001); De Jurnett v. Myers, 1996 U.S. App. LEXIS 27821 (9th Cir.); United States v. Beard, 161 F.3d 1190 (9th Cir. 1998); Perez v. Marshall, 119 F.3d 1422 (9th Cir. 1997); R. v. Orgles, [1993] 4 All E.R. 533 (C.A.) at 537(e); R. v. Cant, [2002] N.T.C.C.A. 366. I shall return to Orgles and to Cant momentarily on another point. In my view, the answer to this issue is in the language of s. 644 of the Criminal Code itself. The trial judge has the discretion to discharge a juror in the course of a trial – which clearly includes during jury deliberations – where satisfied that the juror “should not, by reason of illness or other reasonable cause, continue to act”. This language is broad enough to encompass a situation where the conduct of a juror threatens to interfere with the integrity of the jury process and the ability of the jury to carry out its deliberations in such cases.
[31] The argument that the inquiry ought to have involved the whole jury only is based upon the decision of the Court of Appeal for England and Wales in Orgles, supra. In that case, part way through the hearing of the evidence, two jurors complained to court staff about friction amongst the jury as a whole, which they said was affecting their concentration. The Recorder who was trying the case followed a procedure not dissimilar to that adopted by the trial judge here. He brought the first complaining juror into the courtroom and questioned her in the absence of the remaining members of the jury, but in the presence of the accused and counsel – emphasizing that he did not want the juror to say anything about what had been said in the jury room. She told the Recorder that she would like to continue to carry on and felt she could do so. When she left, neither counsel submitted she should be discharged. A similar process was followed with the second complaining juror, with the same result. The Recorder then assembled the entire jury in the courtroom and asked them – through the foreperson – “whether the jury feel that they can conscientiously continue attending to their duties in this case and bring in a true verdict” notwithstanding whatever levels of dissension and ill-feeling may have arisen. The foreperson declared that they could.
[32] The Court of Appeal rejected this approach. In doing so, it accepted that, when such circumstances arise, “it is the duty of the trial judge to inquire into and deal with the situation so as to ensure that there is a fair trial” and that the judge must be afforded considerable discretion in determining “the course best suited to the circumstances” (p. 538). However, the court drew a distinction between cases involving circumstances that are internal to the jury and those that are external to the jury, and held that in the former situations the inquiry may only be made with the jury as a whole. At pp. 538-539, Holland J. said:
(g) However, in our judgment, such separation of a juror for the purposes of an inquiry cannot be justified if the circumstances are internal to the jury. It may be that just one member of the jury is complaining about all or some of the rest – or, as here, two members – but the problem is not the capacity of one or more individuals to fulfil the oath or affirmation, but the capacity of the jury as a whole. When this type of problem arises, then the whole jury should be questioned in open court through their foreman to ascertain whether, as a body, it anticipates bringing in a true verdict according to the evidence. It will be a matter for the judge’s exercise of discretion as to how he reacts to the response, that is whether he makes no order, whether he discharges the whole jury, or whether he discharges individual jurors up to three in number.
(h) That which the Recorder eventually did, we cannot fault; what we regard as irregular was the initial separation and questioning of the individual members which, given the nature of their respective complaints, should not have happened. The point can be tested. Let it be supposed that one or both had individually intimated an inability to return a verdict, having regard to friction within the jury – what should follow? It could not be right to discharge one or both and leave the rest of the jury to continue – arguably the wrong person or persons would then be discharged, namely those who did heed the nature of the duty. In our view, the inquiry could only be with the jury as a whole.
[33] Orgles has been followed by the Queensland Court of Appeal in R. v. Roberts, [2004] Q.C.A. 366. In Cant, supra, the Court of Criminal Appeal of the Northern Territory, in Australia, declined to apply the “whole jury” approach of Orgles, concluding that there is no “hard and fast rule” about how inquiries in such cases should be done (para. 11). Indeed, in Roberts the court acknowledged, “this is an area in which prescription should be avoided and flexibility is important” (para. 36).
[34] Respectfully, I disagree with the Orgles approach that the inquiry can only be of the whole jury. The approach adopted by the British Columbia Court of Appeal in R. v. Hanna, supra – and followed by the trial judge in this case – is in my view preferable. It adopts the same flexible approach favoured by the Australian authorities. Each case must be tackled in the context of its own factual dynamics, and a trial judge should be afforded a high degree of flexibility in grappling with what is at best a delicate and difficult situation. This will better serve the course of justice. As noted by Wood J.A., in Hanna at 313, “the discretion exercised by a trial judge under s. 644(1) ought to be respected unless the record discloses a reasonable possibility that the accused’s right to a fair trial was precluded”.
[35] The process adopted by a trial judge in such circumstances should comply with at least the following considerations, in my opinion (the list is not intended to be exhaustive). The process:
a) must be fair to the parties and to all members of the jury;
b) must be open, in the sense the trial judge’s enquiries should take place in open court, on the record, and in the presence of the accused and counsel;
c) must enable the trial judge to determine the true nature of the internal problem faced by the jury, and to resolve it; and,
d) must preserve the integrity, confidentiality and impartiality of the jury deliberation process.
[36] Here, the procedure adopted by the trial judge avoided the dangers associated with any inquiry into internal jury strife and complied with the foregoing considerations. The process was fair and open, taking place, as it did, in open court and on the record. I agree with the analysis in Hanna, at pp. 310-313, that an inquiry under s. 644 of the Code into whether a juror should continue to act “is not one that should be subject to the normal rules of the adversarial system which otherwise characterizes the conduct of a criminal trial”. Thus, while the accused is entitled to participate in the process, he or she is not entitled to question or to cross-examine the members of the jury directly: see Hanna, supra at 312; R. v. Afghanzada (2000), 2000 16953 (ON CA), 149 C.C.C. (3d) 349 (Ont. C.A.). I disagree with the decision of the Manitoba Court of Appeal in R. v. Sophonow (No. 2) (1986), 1986 104 (MB CA), 25 C.C.C. (3d) 415, leave to appeal to the Supreme Court of Canada refused, April 22, 1986, which came to the contrary conclusion.
[37] In this case, counsel were afforded the opportunity to make submissions and to suggest questions to be put by the trial judge (and defence counsel did suggest a series of open-ended questions to the judge). They agreed generally with the procedure followed. The procedure enabled the trial judge to get to the nub of the problem and to satisfy herself that the aggressive behaviour of juror seven was causing the other jurors to become sufficiently fearful for their safety that they would not be able to continue their deliberations effectively. Her findings in this regard should not be interfered with lightly. Finally, I see nothing in the record to indicate that the procedure adopted violated the principle of jury confidentiality or interfered with the integrity of their deliberation process in any negative fashion.
[38] The appellant argues further that the inquiry process was itself insufficient. As noted above, however, his counsel agreed with the Hanna-type procedure adopted by the trial judge. In particular, the appellant submits that juror seven was not advised of the allegations made against him by the foreperson or given an opportunity to respond to them. However, his counsel specifically requested that juror seven not be directly confronted with the allegations against him. Moreover, appellant’s counsel had the opportunity to make submissions and to suggest questions to be put to the juror (and did suggest a number of general queries). Leaving aside the question whether it is open to the accused to complain about an alleged lack of procedural fairness to a juror, I do not accept this submission. Juror seven was initially advised by the trial judge of the essentials of the allegations contained in the jury’s letter to the judge. Although he was not asked specifically whether he had threatened the other jurors, he was certainly aware that the thrust of the complaint against him was that his threatening conduct was causing fear amongst the members of the jury. I am satisfied that juror seven had ample opportunity to explain his side of the story and that the trial judge was able to satisfy herself adequately on that score. I am also satisfied, for the reasons set out above, that the process selected was generally fair vis-à-vis the accused.
[39] The last complaint by the appellant concerning the discharge of juror seven is that the trial judge made her decision to do so immediately after hearing the testimony of the court constable, without giving defence counsel an opportunity to make further submissions. This constituted a denial of natural justice, the appellant contends. As noted earlier, however, a section 644 inquiry is not like a trial. It is a process in which it is for the judge to make inquiries and to satisfy him or herself of the true problem and the appropriate remedy. It is more inquisitorial than adversarial in nature. Here, the trial judge did just that, granting to counsel ample opportunity to participate in the process and to make their submissions as to what the remedy should be. Counsel did so. While it would have been preferable if the trial judge had asked for final submissions after the court constable’s testimony, that testimony added little new to the factual underpinning of the problem, essentially just confirming what the foreperson had already told the trial judge. I am satisfied that the lack of opportunity to make further submissions after his evidence and before the ruling did not have any substantive impact on the result.
[40] Accordingly, I would not give effect to the ground of appeal pertaining to the discharge of juror seven.
The “Browne v. Dunn” Instruction
[41] The appellant submits that the trial judge erred in giving the jury an instruction in accordance with the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.).
[42] The so-called rule in Browne v. Dunn is designed to provide fairness to witnesses and parties. It requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach. But it is not a fixed rule, and the extent of its application is within the discretion of the trial judge, depending upon the circumstances of the case. See R. v. Lyttle (2004), 2004 SCC 5, 180 C.C.C. (3d) 476 (S.C.C.) at 493; R. v. Paris (2000), 2000 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.) at paras. 21-22 (and authorities cited therein). In Browne v. Dunn itself, Lord Herschell, L.C., explained the rationale for the rule (at 70-71):
Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course, I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted [emphasis added].
[43] In her instructions to the jury, the trial judge said:
There are a couple of factors that I do want to review with you of particular relevance in this case in regard to things which you can consider – you are not obliged to but you can consider, as you determine how much weight you want to assign to a witness’s evidence.
One factor is the opportunity given to other witnesses to challenge the evidence of a witness whose credibility you are assessing. For example, virtually all of the details of Sergeant Nicholson’s evidence were put to Mr. Giroux when he was being cross-examined by the Crown, and Mr. Giroux was given an opportunity to say whether he agreed or disagreed with what Sergeant Nicholson had said and why. This gave Mr. Giroux an opportunity to point out what he perceived as problems with Sergeant Nicholson’s evidence under Mr. Giroux’s scrutiny as it would be.
All of the details of Mr. Giroux’s version of the events were not put to Sergeant Nicholson when he was cross-examined by defence counsel. Therefore, Sergeant Nicholson wasn’t given the opportunity to say whether he agreed or disagreed with certain aspects of Mr. Giroux’s evidence and why he would agree or disagree. What this meant was that Mr. Giroux’s evidence was not held up to scrutiny by Sergeant Nicholson to the same extent that Sergeant Nicholson’s was by Mr. Giroux. You may consider this a factor that could reduce the weight that you may give to Mr. Giroux’s evidence in regard to any matter about which Sergeant Nicholson was not given the opportunity to comment.
[The trial judge then went on to give several examples of instances where Sergeant Nicholson was not cross-examined on matters raised in Mr. Giroux’s testimony.]
[44] In the appellant’s view this instruction should not have been given, for two reasons. First, he submits that there was no violation of the rule in Browne v. Dunn in this case, and, therefore, no need to give the direction, which reflected adversely on him. Secondly, even if there were a violation, the Crown had the opportunity to recall Sgt. Nicholson to have him comment on the appellant’s version of events and chose not to do so.
[45] The appellant submits there was no violation of the rule in Browne v. Dunn in this case because it must have been plainly evident to the Crown and to Sgt. Nicholson that the credibility of his testimony was being attacked: see the quotation from the speech of Lord Herschell L.C. in Browne v. Dunn, cited above. That being the case, there was no need for defence counsel “to slog through” Sgt. Nicholson’s evidence in chief, “putting him on notice of every detail that the defence [did] not accept”: R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 at 376 (Ont. C.A.). The trial judge suggested this was the case when she told the jury they could ascribe less weight to the appellant’s testimony “in regard to any matter about which Sgt. Nicholson was not given the opportunity to comment”.
[46] I agree that defence counsel need not waste everyone’s time by going through every single minor detail on which a witness’s testimony may differ from that of the accused. However, a witness should be confronted with matters of substance upon which the accused seeks to impeach his or her credibility and upon which the witness “has not had an opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted”: Browne v. Dunn, supra. As Doherty J.A. noted, in R. v. Paris, supra, at para. 22:
Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. The effect of the failure to challenge a witness’s version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case (citations and authorities omitted).
[47] Here, there were a number of instances in which significant aspects of the appellant’s evidence were not put to Sgt. Nicholson for his version of the events. For example, Sgt. Nicholson gave evidence about the purchase of tobacco in the apartment in the presence of the woman, Maryanne, but it was not put to him in cross-examination that it was Maryanne who made the offer and who sold him the tobacco. Yet that was the evidence of Mr. Giroux in his testimony.[^3] There was also a dispute raised by the appellant about whether he and Sgt. Nicholson had had one or two meetings between their first meeting and the first purchase. The appellant said there were two. Sergeant Nicholson mentioned only one in his examination-in-chief, and he was not cross-examined on whether there was the second meeting that the appellant maintained had taken place. In these circumstances, the trial judge was entitled to bring these discrepancies to the jury’s attention and to instruct them as she did.
[48] The appellant argues further that the Browne v. Dunn instruction was unnecessary because Sgt. Nicholson was available to be recalled and the Crown could have done so in reply, but chose not to: see R. v. McNeill (2000), 2000 4897 (ON CA), 144 C.C.C. (3d) 551 at 564 (Ont. C.A.). I am not persuaded that the recall of Sgt. Nicholson was a pre-condition to the giving of the Browne v. Dunn direction in the circumstances of this case, however. Neither counsel suggested that Sgt. Nicholson be brought back to deal with these points – although he was available for either to do so – and the trial judge was not obliged to recall him on her own initiative: R. v. Paris, supra at para. 18.
[49] In the end, while it might have been preferable if the Crown had made a Browne v. Dunn objection to the accused’s evidence at the time it was tendered, the trial judge is entitled to considerable deference in the manner in which she chose to deal with this issue. I am satisfied that the instruction she gave was appropriate in all the circumstances.
Exclusion of the Appellant and his Counsel from the Stay Proceedings
[50] Midway through the trial, Crown counsel advised the court that Corporal Mayer, the lead investigator in relation to some of the proceeds of crime charges, had discovered additional notes that had not been disclosed. The appellant moved for a stay based on late disclosure and the trial proper was suspended pending the outcome of the stay proceeding.
[51] Corporal Mayer testified on the stay motion. A portion of his notes had been edited on the basis of privilege and irrelevance. The trial judge was required to make rulings on whether certain of these passages should be disclosed. She was asked in the process by the appellant’s counsel to review the edited segments to ensure that privilege applied to them. The first time this problem arose, Crown counsel submitted that if the trial judge needed clarification as to the meaning and intent of the notes, the clarification would have to occur in camera in the absence of the appellant and his counsel. The appellant’s counsel agreed with this approach. In that instance, however, the trial judge was able to review the contested passages and to determine to uphold the privilege without the necessity a hearing in camera.
[52] On two subsequent occasions during Corporal Mayer’s testimony, however, the trial judge was unable to decipher the officer’s handwriting, and an in camera proceeding was held. Both times the appellant’s counsel agreed to step outside the courtroom with his client while the problem was resolved. In one instance, the trial judge upheld the privilege of the contested passage in part but ordered that portions of the notes be disclosed. In the second instance, she upheld the Crown’s claim to privilege.
[53] At the conclusion of the stay proceedings, the trial judge declared a mistrial of the proceeds of crime charges investigated by Corporal Mayer.[^4] She declined to stay the smuggling and drug trafficking charges on the grounds that his notes touched only marginally on those matters.
[54] The appellant submits that the procedure of examining Corporal Mayer’s notes in his presence and in the presence of the Crown, but in the absence of the appellant and his counsel, is wrong and a violation of s. 650 of the Criminal Code. Subsection 650(1) requires the accused to be present in court during the whole of his or her trial.
[55] Counsel for the Crown concede that the trial judge erred in making rulings with respect to the notes without hearing submissions from defence counsel. However, they make three responses to the appellant’s argument concerning his exclusion from the stay proceedings. First, they submit that the stay motion was in the nature of a Stinchcombe review and in these circumstances did not form a part of the trial; therefore, s. 650 has no application. Secondly, they say the appellant and his counsel agreed to, and readily accepted, the procedure that was followed; accordingly, the accused waived his right to be present, if that right applied. Finally, the Crown argues that the appellant suffered no prejudice, even if there were a procedural error in failing to afford him the right to make submissions before rulings were made in relation to the notes, and the curative proviso should therefore apply.
[56] I do not find it necessary, for purposes of this appeal, to decide whether the mid-trial hearing that took place was in the nature of a Stinchcombe hearing, and, if so, whether it did or did not form part of the appellant’s trial. I am satisfied that the Crown’s second and third responses are complete answers to this ground of appeal, and I would, therefore, not give effect to it.
[57] While the agreement of the accused and his counsel to absent themselves during portions of the hearing concerning the notes did not constitute a waiver of the accused’s right to make submissions prior to the rulings, it did constitute a waiver of his right – if, indeed he had such a right – to be present during that part of the proceedings. In terms of the appellant’s inability to make submissions in relation to some of the rulings, the answer is that he suffered no prejudice in the context of this trial as a result of the denial of that right. The notes in question related to different charges than the smuggling and drug trafficking charges on which the appellant was ultimately tried. Corporal Mayer was not the investigator with respect to the latter charges, had no relevant evidence to give regarding them, and was not called as a witness at the trial. Thus, even if there were a procedural error in inviting submissions in the absence of the appellant, the appellant suffered no prejudice. I would therefore apply the curative proviso in s. 686(1)(b)(iv) of the Code.
[58] This ground of appeal therefore fails.
W. (D.) and the Charge on Reasonable Doubt
[59] The appellant next asserts that the trial judge’s instructions to the jury on the issue of credibility did not comply with the Supreme Court of Canada’s guidelines in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397, and would have led the jury to consider his evidence in a piecemeal fashion. I do not agree. Read as a whole the trial judge’s instructions on this issue complied with the requirements of W.(D.) and made it plain that the jury had to be satisfied beyond a reasonable doubt on all of the evidence that the accused was guilty.
The Failure to Give the Jury an “Agent for the Purchaser” Direction
[60] Nor do I accept the appellant’s submission that the trial judge erred in failing to give the jury an “agent for the purchaser” direction. The defence did not request such an instruction at trial, and there was no objection to the charge on this basis. The Crown contends that an “agent for the purchaser” instruction did not arise on the evidence and was, therefore, not warranted in the circumstances.
[61] To succeed on an “agent of the purchaser” defence, the appellant must show that the facts respecting his assistance in helping to complete the sale “reveal no more than incidental assistance of the sale through rendering aid to the purchaser”: R. v. Greyeyes (1997), 1997 313 (SCC), 116 C.C.C. (3d) 334 (S.C.C.) per L’Heureux-Dubé J. at para. 8. There is no air of reality to such a defence on the facts of this case.
[62] The appellant did not deny that he was involved in the drug transaction. He provided prices to Sgt. Nicholson and admitted to “[putting] the buyer and the seller together, and get[ting] paid for doing that”. He introduced Sgt. Nicholson to Marcel Desgroseillers and vouched for the buyer. He bargained for a commission of $500 per kilogram of cocaine (rather than simply a fixed amount for making the introduction and providing the prices). Most significantly, on the appellant’s own evidence he intended the sale to go through, not because he was facilitating Sgt. Nicholson as purchaser, but because he wanted the sale to be completed so that both Sgt. Nicholson and Mr. Desgroseillers would be arrested. He said he didn’t like what Desgroseillers was doing and that he thought if Nicholson were arrested his car would be seized and he (the appellant) would be able to buy it cheaply. Thus, the appellant was not simply “incidentally” assisting the seller by rendering aid to the purchaser; he was at least equally rendering aid to the seller to ensure that the transaction would be completed. There was no foundation for an “agent of the purchaser” defence, as contemplated in Greyeyes, supra, on the evidence the jury had heard.
[63] The appellant also argues that the trial judge erred in failing to tell the jury that if he were only motivated by a desire to aid the purchaser, he was not guilty of aiding the seller in trafficking in the drugs, and therefore was not guilty of trafficking himself. He relies upon the following statement of L’Heureux-Dubé J. in Greyeyes at para. 11:
It is clear that someone whose acts are designed to aid a purchaser, yet incidentally benefit the seller, has assisted much more in the purchase of the narcotic than the sale. As such, it is only fitting that this person share the culpability and stigma of the purchaser rather than that of the vendor [emphasis added].
[64] On the basis of the foregoing evidence, however, it is apparent that the appellant’s acts were “designed” to do more than simply aid the purchaser. In any event, the jury was clearly directed that “the Crown must prove beyond a reasonable doubt that Luc Giroux consciously took the step of introducing Sergeant Nicholson to Marcel Desgroseillers so that Marcel Desgroseillers could sell him cocaine” [emphasis added]. They would have understood from this that they could not convict if they had a reasonable doubt as to whether the purpose of the introduction was merely so that Sgt. Nicholson could purchase cocaine.
[65] I would not give effect to this ground of appeal either.
The Sentence Appeal
[66] The trial judge sentenced the appellant to ninety days in jail and a $10,000 fine for the smuggling and selling charges relating to alcohol and to twelve months in jail, concurrent, for trafficking in two ounces of cocaine. The appellant complains that he should have received a conditional sentence and says that the trial judge’s failure to order such a disposition discloses three errors. First, he submits the trial judge treated his lack of remorse as an aggravating factor. Secondly, he argues she declined to order a conditional sentence because she found that he did not have an active social life in any event. Thirdly, she found that the appellant’s friends and family were not available to enforce a conditional sentence.
[67] In my view, the sentence imposed was proper and fit, and well within the range of sentences imposed for similar offences. I am not persuaded that the complaints referred to above constitute errors in principle in the circumstances of this case, given the context in which the trial judge’s statements were made.
[68] It is accepted that lack of remorse is not ordinarily an aggravating factor in sentencing and that courts ought to be very careful in treating it as such: R. v. Valentini (1999), 1999 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont. C.A.), at para. 82. The trial judge did refer in her reasons for sentence to her sense that the appellant did not feel any remorse for his acts. However, I do not read her as having done so with a view to treating this lack of remorse as an aggravating factor. Rather, I read her comments as indicating that this factor, taken together with his demeanour at trial and with what the trial judge considered to be his unreliable and completely “invented” evidence, simply showed a cavalier attitude towards the crime in question and the heightened consequences of that crime in the Cornwall area. These are factors that she was entitled to take into account in considering whether to order a conditional sentence.
[69] The reference to the appellant’s life not being much different if a conditional sentence were imposed was not more than a passing comment, and I am not convinced that it was an error on the part of the trial judge to consider whether the appellant was supported by friends or family members who would help ensure that he would comply with the terms of such a disposition.
[70] In any event, the sentence imposed was perfectly fit in the circumstances. In R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), this Court confirmed that sentences in the range of 6 months to 2 years less a day are appropriate for drug trafficking cases of this nature. Smuggling is a particular problem in the Cornwall area. Albeit that the appellant had no prior criminal record, it is clear that he was immersed in the drug and smuggling culture in that community, and that he was motivated by greed in doing what he did.
[71] I would not vary the sentence imposed.
DISPOSITION
[72] For the foregoing reasons, the appeal as to conviction is dismissed. Leave to appeal sentence is granted, but the appeal as to sentence is dismissed as well.
“R.A. Blair J.A.”
“I agree S.T. Goudge J.A.”
“I agree R.P. Armstrong J.A.”
RELEASED: April 7, 2006
[^1]: In contrast to cases involving circumstances external to the jury, such as the illness or change in the personal circumstances of a juror, or the fact that a juror recognizes a witness as an acquaintance, or improper communications between jurors and others, or more sinister situations such as improper approaches to jurors, threats, bribes or other forms of inducement.
[^2]: Appellant’s factum, para. 31.
[^3]: As it turned out, Mr. Giroux was acquitted of the tobacco charges to which this evidence related. Thus, the trial judge’s charge caused him no prejudice in this regard, in any event.
[^4]: See R. v. Giroux, [2001] O.J. No. 5496.