DATE: 20060120

DOCKET: C41632

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WINSTON PAUL DURANT (Appellant)

BEFORE:

LABROSSE, WEILER and MACFARLAND JJ.A.

COUNSEL:

Joseph Di Luca

for the appellant

Eliott Behar

for the respondent

HEARD & RELEASED ORALLY:

January 18, 2006

On appeal from the conviction entered on March 12, 2004 and the sentence imposed on March 26, 2004 by Justice Arthur C. Whealy of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] The appellant was charged with two counts of sexual assault against the complainant. He was tried before a judge and jury and was acquitted on one count and convicted on the other. He was sentenced to five years imprisonment less credit for two years pre trial custody. He appeals both his conviction and sentence.

[2] The appellant does not argue that the verdict was unreasonable or that the verdicts are inconsistent. The primary grounds of appeal in relation to conviction relate to the judge’s charge to the jury. The appellant’s submissions in relation to them are as follows:

The charge in relation to the appellant’s criminal record

[3] In the course of instructing the jury on the use that could be made of the appellant’s criminal record, the trial judge gave the following instructions:

I want to say a word about criminal records, because it is an acknowledged and agreed fact that this accused man has a serious and lengthy criminal record. My instruction to you on this subject are extremely important. When an accused person testifies, among other things, that he has a criminal record, then you hear about the nature of each offence and the date and the sentence, that testimony is no evidence whatsoever that the accused committed the offences for which he is on trial. Every person is entitled to be tried and judged upon the evidence pertaining to the particular offences before the court and only that evidence. The Crown must prove each offence on the facts of the event itself and you, as a jury, cannot take the view that because the accused has a record of criminal behaviour he must obviously have done these offences, nor can you take the attitude that a person with such a history is worth less consideration than someone who has no criminal background. The reason you have been told of the record is that, in judging the credibility of the accused as a witness, you are entitled to know whether he has some history of dishonesty. The record which shows only crimes of violence, however bad, is not a record of dishonesty, except in a very limited sense as being contrary to law; whereas a record that contains convictions for dishonesty offences is relevant material for you in deciding whether or not to believe that person as a witness before you.

Winston Durant’s criminal record is so persistent and continuous that we can say some things with a degree of certainty. Over the past 30 years he has come to the attention of the criminal justice system so often that we have a virtual diary of his activities. We know what he has been convicted of and his sentences and the length of time that has taken him out of the public stream of life. You probably did not count but there were 59 entries on that record and 58 convictions over that 30 year period. Now unless acquiring a criminal record can be considered an occupation of which one can be considered a success, Durant has demonstrated a positive talent in two areas: committing criminal acts and getting caught at it. It is hard to find such a litany of an unsuccessful career like this anywhere, legal or illegal. This man is a complete failure at both being a good citizen and being a petty criminal, but one thing we can glean from his criminal records he has never been convicted of a sexual crime. Drugs, theft, dangerous driving, drunkenness, disobeying court orders seem to be the mainstream of his illegal activities. None of us would be surprised to see him before a court charged with those kinds of misbehaviour.

One of the hallmarks of our criminal justice system is that as a society we do not convict people for simply being rotten citizens, and we are justifiably proud of our restraint. We convict people only for specific crimes proven beyond a reasonable doubt. Durant’s past criminal behaviour is no evidence of his guilt of these four charges. You must find such evidence, if it exists, in the testimony presented during this trial. He has the same right to be judged upon the testimony relevant only to these counts in this trial as a person without any prior record like you and me, subject only to being judged as to his credibility based on any dishonesty you find in his past.

[4] The appellant accepts that the first and third paragraphs contain appropriate instructions regarding the permissible and impermissible use of the appellant’s criminal record. The appellant submits, however, that the inclusion of the second paragraph, detailing the appellant’s “accomplishments” as a criminal, negated the earlier and subsequent instruction. While telling the jury not to engage in propensity reasoning, the appellant submits that the trial judge’s comments in the middle paragraph demeaned him as an individual and impacted on his credibility, which was a real issue in the case.

The flawed W. (D.) Instruction and the Miller Error

[5] At the end of his instructions, the trial judge told the jury:

Consider the whole, the totality of the evidence that you find credible, and then ask yourself if the Defence might reasonably be true. If the answer is “yes” or if you have a reasonable doubt about it, you will acquit the accused of that count. Even if you are unsure whether to believe the accused, it may still leave you in a state of reasonable doubt and, if so, the proper verdict is to acquit the accused [emphasis added].

[6] The appellant submits that this paragraph is also in error. It tells the jury to consider only the evidence that they find credible, that is, the evidence that they accept, in deciding whether to acquit the accused. The jury can only convict an accused on the basis of evidence that they accept as credible. An acquittal on the other hand, may be based upon the absence of evidence or evidence that the jury has not categorized. It is simply evidence that leaves them with a reasonable doubt as to whether the Crown has proven its case.

The reasonable doubt instruction

[7] In the course of instructing the jury on reasonable doubt, the trial judge told the jury:

After you have visited all of the evidence that you have heard in this trial and nothing else, and you have decided on those parts you accept as credible so that you know what facts you accept, you will apply the law to those facts as I instruct you….

The appellant submits this instruction again suggests that reasonable doubt must be based on evidence that the jury accepted as credible. It undermined the trial judge’s earlier and proper instruction that reasonable doubt could be based on a lack of evidence.

[8] The overarching question is whether the jury properly understood its task. While the jury’s acquittal suggests that it did, we cannot say that absent the cumulative effect of the errors, the verdict would have been the same.

[9] In relation to the s. 11(b) application, we are of the opinion that the application would not have succeeded and, as a result, the trial judge did not err in summarily dismissing it.

[10] The appeal is allowed, the conviction is quashed and a new trial is ordered on that count. In view of our conclusion, it is unnecessary to deal with the sentence appeal.

“J. M. Labrosse J.A.”

“K. M. Weiler J.A.”

“J. MacFarland J.A.”