Court of Appeal for Ontario
Date: 2006-06-21 Docket: C42952
Before: Rosenberg, Armstrong and Rouleau JJ.A.
Between:
Her Majesty the Queen Respondent
- and -
Rohan Hopeton Wilson Appellant
Counsel: Mark Halfyard, for the appellant Kevin Wilson, for the respondent
Heard: April 19, 2006
On appeal from conviction by Justice Francine E. Van Melle of the Superior Court of Justice, sitting with a jury, dated February 24, 2004.
ROSENBERG J.A.:
[1] The appellant appeals from his conviction by a court composed of Van Melle J. and a jury for importing cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act. The only issue at trial was whether the appellant knew that the luggage trolley in his possession contained the cocaine.
[2] The Crown relied upon a statement that the appellant was said to have made to one of the arresting officers. The statement was neither audio nor videotaped. The appellant denied making the inculpatory parts of the statement. The appellant submits that the trial judge did not adequately direct the jury as to the inference to be drawn from the police failure to audio or videotape the statement. The appellant also submits that the trial judge erred in holding that the appellant could be cross-examined on his record for drug offences.
[3] I agree with both submissions and accordingly would allow the appeal, set aside the conviction and order a new trial.
THE FACTS
Discovery of the drugs
[4] On May 12, 2001, the appellant arrived at Pearson International Airport on a flight from Jamaica. At the time, the appellant had a suitcase and a luggage trolley. He was referred to secondary inspection where he was questioned and his luggage examined. The inspector’s attention was drawn to the trolley because although it appeared brand new, the screws holding it together appeared worn. When a hole was drilled into one of the poles of the trolley, the inspector discovered that it contained cocaine. In all, the trolley contained 212 grams of cocaine.
[5] The appellant was arrested by the customs inspectors and turned over to Constables Mitchell and Armstrong of the R.C.M.P. The appellant was given his rights under the Charter of Rights and Freedoms and he spoke to duty counsel.
Taking the statement
[6] The R.C.M.P. constables took the appellant to their cells in Terminal One to be processed. Upon arrival, the appellant was placed in an interview room where Constable Mitchell questioned him. Constable Armstrong stayed in an adjacent room. The interview room is equipped with video recording equipment. As I understand the evidence, Constable Armstrong could see what was taking place in the interview room by observing the video monitor in the office but was unable to hear any of the conversation in the interview room. He estimated that the appellant was with Constable Mitchell for about 45 minutes.
[7] Constable Mitchell testified that he did not use the video equipment to record the interview with the appellant.[^1] At one point in his testimony he said he did not use the equipment because “we were experiencing some problems with an echo sound”. However, he conceded that he also did not test the equipment on this occasion and later in his testimony he agreed that the statement could have been recorded. Because of the problem with the video equipment, the officers were using handheld audio tape recorders to tape statements to supplement the video equipment. But, he also did not have his handheld recorder with him and he had no explanation for why he did not have his recorder with him. When asked why he did not bring the recorder with him when he was contacted by the customs inspectors to arrest the appellant, Mitchell said, “I didn’t think of it at the time, no.” In any event, his normal practice at the time was to take a written statement.
[8] Constable Mitchell testified that he began taking the statement at 10:27 p.m. He wrote out the questions and the appellant’s answers. The written statement is as follows:
Q. Do you understand you have the right to contact a lawyer and legal aid will be provided free of charge.
A. Yes.
Q. Do you wish to contact a lawyer.
A. No.
Q. What can you tell me about the cocaine found in your luggage cart.
A. Somebody gave me the luggage cart.
Q. Why.
A. He told me to sell the cocaine and he would share the money with me.
Q. Who was this guy.
A. The legal aid lawyer told me I must not say anything.
Q. How much do you think the cocaine sell for [sic].
A. I don’t know. I never done it before.
Q. What was your share of the cocaine going to be.
A. I don’t know. I’ve never done this before.
Q. This fellow in Jamaica did he tell you the value of the drugs was [sic].
A. No, I don’t know why I did.
Q. Where were you going to sell it at was there a place.
A. No.
Q. Why did you go to Jamaica.
A. My grandmother died.
Q. What’s her name.
A. Silvia Bennett.
Q. When did she die.
A. Its [sic] on the telegram.
Q. Whos [sic] mother is it.
A. My Dads [sic].
Q. Why did you stay three weeks.
A. I have a daughter who lives there.
Q. How did you meet this fellow that gave you the cocaine.
A. He sells sugar cane and I met him twice.
Q. Whos [sic] idea was this.
A. He told me about it and I told him I never did this before and all he told me is if I brought it back he would share the money even.
Q. Was there anyone else on the flight that brought back cocaine.
A. No.
Q. Did you meet anyone else in Jamaica who was to bring back cocaine.
A. No.
Q. Do you want to tell me this guys [sic]name.
A. No. My lawyer told me not too [sic].
Q. Is there anything else you wish to add.
A. No.
[9] After he completed the statement, Constable Mitchell gave it to the appellant and the appellant signed it. He finished the statement taking process at 10:49 p.m.
[10] Constable Mitchell testified that at the time the R.C.M.P. policy did not require that statements be audio or videotaped but he thought this policy had changed at some time in the year before he was testifying (2004).
[11] The appellant testified that the conversation with Constable Mitchell lasted for 45 minutes to an hour. Although he was asked several questions about the cocaine he denied knowing about it. Moreover, he had been advised by duty counsel to remain silent. He saw Mitchell taking notes and assumed he was accurately taking down what he said. He is nearly illiterate and was unable to read the statement before he signed it.
[12] The appellant denied any knowledge about the cocaine and explained the reason for the trip to Jamaica and how he ended up with the suitcase and the luggage trolley. In short, he lent his own suitcase to a family friend, but when it was not returned to him and he was ready to return to Canada, the family friend arranged to lend him another suitcase and luggage trolley. He was to return the suitcase and trolley to a person in Toronto.
The Corbett application
[13] Prior to testifying the appellant applied for an order that Crown counsel not cross-examine him on his criminal record. By the time of trial, the appellant had the following convictions:
September 2001 Possession of cocaine for the purpose of trafficking
August 2003 Assault
January 2004 Possession of cocaine
[14] It will be seen that all convictions post-date the appellant’s arrest on the importing charge. For reasons that I will set out below when discussing this ground of appeal, the trial judge ruled that the appellant could be cross-examined on the two drug convictions but that the jury would be told that the first conviction involved only possession of cocaine.
ANALYSIS
The charge to the jury on the confession
[15] In pre-charge discussions, trial counsel for the appellant asked that the trial judge instruct the jury in accordance with this court’s decision in R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 at para. 65 that where “the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect”. The trial judge held that Moore-McFarlane applies only at the admissibility stage and since she had held that the statement was admissible, the special instruction was not required. Unfortunately, the trial judge did not have the benefit of this court’s later decision in R. v. Swanek (2005), 28 C.R. (6th) 93, which I will discuss later.
[16] In the result, the trial judge gave the following instruction concerning the reliability of the appellant’s statement to the police:
When Constable Mitchell says what Rohan Wilson said to him, you have to decide whether you believe Rohan Wilson made the statement or any part of it. Regardless of who the witness is, it is still up to you to decide whether you believe him. In deciding whether Rohan Wilson actually said these things or any of them, you should use your common sense. Take into account the condition of Mr. Wilson and of Constable Mitchell at the time of the interview. Consider the circumstances in which the interview took place. Bear in mind anything else that may make Constable Mitchell’s story more or less reliable.
Whether a witness has recorded a conversation or taken notes about it does not itself determine how reliable that witness’ testimony may be. It is, however, one of the things that you may consider in deciding whether or how much of the witness’ testimony to believe.
Unless you decide that Rohan Wilson made a particular remark or statement, you must not consider it in deciding this case. Some or all of the statements may help Mr. Wilson in his defence. You must consider those remarks that may help Mr. Wilson along with all of the other evidence unless you are satisfied that he did not make them. In other words, you must consider all the remarks that might help Mr. Wilson even if you cannot decide whether he said them.
[17] In my view, for the following reasons, this was not an adequate instruction. This court briefly dealt with this issue in R. v. Swanek. In that case, the accused argued, for the first time on appeal, that the trial judge should have directed the jury that it was dangerous to rely upon an unrecorded inculpatory statement that was not confirmed by other evidence. Doherty J.A. at para. 12, noted the concern with unrecorded oral statements:
Counsel makes the valid point that while those who are regularly involved in the criminal process are familiar with the historical unreliability of oral confessions attributed to persons in custody, a jury may well not appreciate that unreliability.
[18] Thus, he held at para. 13 that in a proper case a special instruction should be given to the jury:
If the police failure to make a proper recording of an alleged inculpatory statement is in issue at trial, I think a trial judge should tell the jury that the failure to make a proper recording is an important factor for the jury to consider in deciding whether to rely on the police version of the alleged statement.
[19] In Swanek, the court held that there was no error in failing to give the instruction since the failure to make a proper recording was not an issue at trial and no special instruction had been requested by the accused. That is not the case here: defence counsel raised the failure to videotape in his examination of the officers and asked the trial judge to give a special instruction. I note that in Swanek the concern was with an oral statement that was not signed by the accused and only reduced to writing in the officers’ notebooks. However, given the uncontested evidence that the appellant was all but illiterate, nothing turns on the fact the statement in this case was signed. The point remains that because of the failure to audio or video record the circumstances or manner of obtaining the statement cannot be objectively assessed.
[20] Most of the cases that have considered the issue of videotaping of statements have been concerned with the impact of the failure to videotape on admissibility. However, in my view, and for the reasons set out in Swanek, in appropriate circumstances, a special instruction should be given to the jury where the accused contests the accuracy of the non-recorded statement. Over a decade ago, Carthy J.A. in his concurring reasons in R. v. Barrett (1993), 82 C.C.C. (3d) 266 (Ont. C.A.) at 270, noted the central feature a confession can play in a criminal case and the importance of having an accurate record of what occurred: and he said this: “On this determinative issue of conviction the police force has, by its own choice in this case, denied the court the opportunity of an undeniable record of what led to the "conviction". Given the modest cost of videotape equipment, such critical evidence should not, in fairness, be restricted to sworn recollection of two contesting individuals as to what occurred in stressful conditions months or years ago. The evidence is admissible under our present rules, but everyone involved in the criminal justice system should make reasonable efforts to better serve its ultimate ends.”
[21] These concerns do not relate solely to voluntariness; they also relate to the jury’s task in attempting to decide whether the accused confessed as alleged by the police. Barrett was overturned on appeal to the Supreme Court of Canada (1995), 96 C.C.C. (3d) 319, on the basis that the failure of the trial judge to give reasons for admitting the statement did not amount to an error of law. That decision does not take away from the common sense identified by Carthy J.A.’s reasons.
[22] In R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.) at para. 46, Iacobucci J. held that a video or audio recording “can greatly assist the trier of fact in assessing the confession”. The trier of fact, of course is concerned not solely with voluntariness but whether the statement was made and the truth of the contents of the statement. It must also be said that at the present time the failure to electronically record the statement does not itself render the statement inherently suspect. Iacobucci J. made that clear in Oickle at para. 46. To the same effect is the decision of the Manitoba Court of Appeal in R. v. Ducharme (2004), 2004 MBCA 29, 182 C.C.C. (3d) 243 at para. 46:
The difficulty is that until either the Supreme Court articulates or Parliament legislates the duties of the police and lays out a protocol to be followed, the common law definition of voluntariness will remain in effect. That being the case, it cannot be said that the failure to videotape or electronically record will automatically mean the exclusion of the evidence on a voir dire.[^2]
[23] Thus, there must be other circumstances before a trial judge would be entitled to give the special instruction sought in this case. One set of circumstances was identified in R. v Moore-McFarlane at para. 65: “where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect”. Admittedly, in that case, Charron J.A. was concerned with voluntariness, but for the reasons set out above the concern for accuracy that arises at the voluntariness stage also applies at the guilt or innocence stage.
[24] In my view, it was open to the jury to find that the police deliberately set out to interrogate the appellant without giving any thought to the making of a reliable video or audio record. The jury should therefore have been instructed along the lines suggested in R. v. Swanek that this was an important factor to consider in deciding whether to rely on the officer’s version of the statement.
[25] The respondent submits that the jury would have understood the concern with the reliability of the written statement because both counsel in their jury addresses acknowledged the problem stemming from the lack of an audio or video recording. I do not accept that position. While defence counsel in his address did review the circumstances of the taking of the statement and pointed out that Constable Mitchell could have used the pocket recorder, he expressly told the jury that the legal effect of those circumstances would be explained by the trial judge:
So he’s in a room specifically designed to audio and video-record a confession or a statement generally and he chose not to use that. Now, why is that important? Now, Her Honour will suggest what the law says about that but the logical reason why, over time, we’ve moved from having them written to having them video, doesn’t take a lawyer to explain that. Obviously a video statement is much more trustworthy than having to take someone’s word for how this all happened and that wasn’t utilized.
[26] Unfortunately, after the jury addresses, the trial judge ruled that she would not give this special instruction. While Crown counsel also gave a fair recitation of the facts in her jury address, she invited the jury to draw the inference that had their been a recording it would simply have confirmed Constable Mitchell’s version:
It is trite to say that given the accused’s version of events, it would be very nice at this trial to have a perfect video or audio record. Obviously we may not even have been here.
[27] In any event, counsel’s views on the law are no substitute for a proper legal direction from the trial judge. Given the central role played by the statement, I cannot be satisfied that the absence of a proper instruction did not prejudice the appellant’s defence.
[28] Further, it seems to me that the instruction the trial judge gave could have had the effect of bolstering the officer’s credibility, because he, unlike the appellant, had taken notes of the conversation. For convenience, I set out a portion of the instruction set out more fully above:
Whether a witness has recorded a conversation or taken notes about it does not itself determine how reliable that witness’ testimony may be. It is, however, one of the things that you may consider in deciding whether or how much of the witness’ testimony to believe.
[29] Thus, the instruction far from attracting the jury’s attention to the potential unreliability of the officer’s evidence may well have had the effect of giving it added credit.
The Corbett application
[30] As I have indicated, the trial judge held that the appellant could not be cross-examined on the assault conviction but could be cross-examined pursuant to s. 12 of the Canada Evidence Act on the two drug convictions, although the possession for the purpose of trafficking conviction would be referred to only as possession of cocaine. The trial judge gave the following reasons:
In reviewing the criminal record of the accused and the relevant authorities, I am satisfied that the probative value of the two drug convictions, as edited, outweigh the prejudice to the accused, particularly in this case where the defence is lack of knowledge.
I also find that they are sufficiently proximate in time.
I further find that the assault conviction of January 2004, while not prejudicial to the accused, is not probative either.
In summary, the accused can be cross-examined of the two charges of simple possession.
[31] In my view, the trial judge erred in permitting cross-examination on the two drug convictions. The fact that the appellant’s defence was lack of knowledge did not make the prior drug convictions either more probative or less prejudicial on the sole issue for which they were admissible, the appellant’s credibility. To the contrary, to use the convictions as evidence of knowledge would engage the prohibited line of reasoning that because the appellant had drug convictions he would have a propensity to commit the offence.
[32] In view of the trial judge’s error in principle, her decision is not entitled to the considerable deference normally accorded to discretionary decisions.
[33] In at least two decisions, this court has held that drug convictions are of little probative value on the issue of credibility. In R. v. Brand (1995), 98 C.C.C. (3d) 477 (Ont. C.A.)[^3], the trial judge held that on his trial for trafficking in drugs, the accused could be cross-examined on his entire record including three prior convictions for trafficking in narcotics. This court held, at p. 480, that this was an error:
We think the learned trial judge erred and applied the wrong test in the exercise of his discretion. He was obliged to weigh and balance the risks for and against exclusion, bearing in mind the evidentiary value of previous convictions admitted pursuant to s. 12, and the fair trial of the accused. The three convictions in question had no probative value with respect to the appellant's credibility but were highly prejudicial. [Emphasis added.]
[34] In my view, there is no principled distinction between the trafficking charge in Brand and the importing charge in this case. Further, while convictions for simple possession of cocaine are less prejudicial than trafficking convictions, they involve the same concern, that the jury will misuse the evidence and, as did the trial judge, use the convictions for similar offences as evidence of knowledge. As LaForest J. said in R. v. Corbett (1988), 41 C.C.C. (3d) 385 (S.C.C.) at 436:
Clearly, too, the more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater the prejudice harboured by its admission. I agree fully with the opinion of the court in Gordon, supra, at p. 940, that:
A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time". As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. [Emphasis added.]
I think that a court should be very chary of admitting evidence of a previous conviction for a similar crime, especially when the rationale for the stringent test for admitting "similar fact" evidence is kept in mind.
[35] Although he was speaking in dissent, the factors identified by LaForest J. for excluding a prior criminal record were approved by Dickson C.J.C. at pp. 404-5 speaking for the majority. Because the trial judge misapprehended the probative value of the evidence, she never engaged in the proper weighing of probative value versus prejudicial effect. In my view, the prejudicial effect of the drug convictions outweighed whatever limited probative value they might have had with respect to the appellant’s credibility. I would take a different view if the appellant had put his character in issue or adopted the stance that he did not know what cocaine looked like but counsel for the respondent fairly conceded that the appellant did not do so and that the convictions could not be admitted on that footing.
[36] Crown counsel does, however, submit that this would be a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. He points out that the trial judge attempted to minimize the prejudice by having the parties refer to the trafficking offence solely as a possession offence. She also gave the correct instructions to the jury as to the limited use of the evidence and told the jury that offences involving dishonesty would be more important than others with respect to credibility and that possession of cocaine was not an offence of dishonesty. There is considerable merit to this submission and if this error stood alone, this might be an appropriate case for applying s. 686(1)(b)(iii). However, given the cumulative effect of the two errors, it is my view that we should not exercise our discretion in favour of dismissing the appeal.
DISPOSITION
[37] Accordingly, I would allow the appeal, set aside the conviction and order a new trial.
Signed: “Marc Rosenberg J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree Paul S. Rouleau J.A.”
RELEASED: “MR” June 21, 2006
[^1]: Although it seems that the camera was operating since Constable Armstrong could see what was happening in the room on the monitor. [^2]: In R. v. Bunn, 2001 MBCA 12, [2001] 7 W.W.R. 32 (Man. C.A.) at para. 14 Twaddle J.A. held that “A police officer who questions an accused person without keeping a contemporaneous record of the interrogation risks an adverse finding on the accuracy of what he or she recalls.” Bunn was a more egregious case as the police officer only made notes after the interview. [^3]: Also, see R. v. Brown (2002), 166 C.C.C. (3d) 570 (C.A.).