CITATION: R. v. Brown, 2007 ONCA 71

DATE: 20070202

DOCKET: C45014

COURT OF APPEAL FOR ONTARIO

LABROSSE, CRONK and ARMSTRONG, JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Michael Dineen, for the appellant

Respondent

• and -

RORY BROWN

Steve Coroza and Shannon McPherson, for the respondent

Appellant

Heard: January 18, 2007

On appeal from the convictions entered by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a jury, on November 22, 2005.

CRONK J.A.:

1. Introduction

[1] As a result of a police drug investigation, the appellant was charged with two counts of trafficking cocaine. On September 8 and October 8, 2003, an undercover police officer purchased crack cocaine from a known dealer. Surveillance officers observed the supplier of the drugs to be the driver of a Honda motor vehicle with a licence plate registered to the appellant. They identified the appellant as the driver.

[2] On November 22, 2005, following a trial by judge and jury, the appellant was convicted on both trafficking counts and sentenced to two years less one day imprisonment on each count, to be served concurrently.

[3] The appellant appeals his convictions on four grounds arising from the trial judge’s charge to the jury. He argues that the trial judge erred by: (i) failing to instruct the jury that it was required to assess the Crown’s identification evidence on each count separately; (ii) providing the jury with an inadequate instruction concerning the identification evidence; (iii) failing to provide the jury with a correcting instruction regarding Crown counsel’s treatment of exculpatory evidence during his closing address to the jury; and (iv) failing to instruct the jury that the considerable hearsay evidence adduced at trial could not be relied upon for the truth of its contents.

[4] I agree that the jury charge was fatally deficient. Accordingly, I would allow the appeal and direct a new trial. I reach this conclusion for the following reasons.

2. Identification Evidence

[5] The only real issue at trial was the identification of the driver of the Honda – the supplier of the cocaine. The defence took the position that the police identification of the appellant was mistaken and that the driver of the vehicle was the appellant’s brother, Al Brown.

[6] The Crown relied on the evidence of three police officers to establish that the appellant was the driver of the Honda. Separate identification evidence was led by the Crown in respect of each offence.

[7] In connection with the September 8, 2003 drug transaction, a police officer testified that, while he was a passenger in a police surveillance vehicle, he observed the driver of the Honda from a distance of five or six feet for several seconds while both the police car and the Honda were stopped at a red light. Shortly thereafter, he identified the appellant as the driver of the Honda in a police photo line-up.

[8] This was the only identification evidence linking the appellant to the September 8 offence. The police officer’s description of the driver of the Honda, however, did not match the appellant’s appearance in all respects. Nor did it completely match the descriptions of the driver of the same Honda on October 8, 2003, as subsequently provided by two other police surveillance officers in respect of this second incident. In addition, the defence maintained at trial that the police photo line-up was improper in several respects and, hence, that the police officer’s identification of the appellant in the photo line-up was unreliable.

[9] The identification evidence concerning the October 8, 2003 drug transaction arguably was stronger. On that occasion, two police surveillance officers independently observed the driver of the same Honda. At the time of their observations, they identified the driver as the appellant from a photograph of the appellant that had been supplied to them earlier that day as part of a police briefing package.

[10] The identification by one of the officers was made from a distance of about fifty feet and was based on his observations made first with the naked eye and then with binoculars. The other police officer testified that he was able to identify the appellant as the driver of the Honda when he was stopped at an intersection and saw the Honda drive through the intersection. Although this occurred after dark, the officer said that the police vehicle’s headlights momentarily illuminated the interior of the Honda as it travelled through the intersection.

[11] The defence attacked the Crown’s identification evidence on several grounds. Defence counsel emphasized, among other matters: the discrepancies between the descriptions of the driver of the Honda provided by the three police officers; the discrepancies between the police officers’ descriptions of the driver and the appearance of the appellant; what the defence alleged were material defects in the police photo line-up; and the various police officers’ limited or impeded opportunities to visually observe the driver of the Honda. The defence also relied on evidence establishing that on September 13, 2003, within days of the occurrence of the predicate offences, the appellant’s brother had driven a Honda vehicle with a licence plate registered to the appellant in the same neighbourhood where the police claimed to have observed the appellant on the dates of the offences at issue. Finally, the defence relied on the trial testimony of a Crown witness who was directly involved in the sale of the drugs to the undercover police officer. She testified that she recognized the appellant’s brother, but not the appellant, as one of her drug suppliers. It is noteworthy, in this regard, that the appellant and his brother are markedly different in size. The jury had the opportunity to compare their appearances because the appellant’s brother was present in court during the appellant’s trial.

3. Trial Judge’s Jury Charge

[12] Given this identification evidence and the theory of the defence at trial, I conclude that the jury charge was flawed in two critical respects.

[13] First, the trial judge failed to instruct the jury that it was required to consider the evidence in respect of each trafficking count separately, and that it could not use the identification evidence relating to one count as evidence supporting identification on the other count. In R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 at para. 41, this court, in quoting the decision of the Supreme Court of Canada in R. v. Rarru (1996), 1996 CanLII 195 (SCC), 107 C.C.C. (3d) 53, stressed the importance of this type of instruction in a case involving a multi-count indictment:

Thus, in a case involving multiple counts and complainants, and where evidence is led of other uncharged misconduct, Sopinka J. identified two essential elements of a charge to the jury. First, when evidence of one count is not admissible as similar fact evidence on the other counts, jurors must be instructed to consider each charge separately and not to use evidence relating to one count as evidence on any of the other counts. In this case, the jury charge does not include this essential element. The charge does not clearly explain to the jurors that they could not use the evidence of all the counts to prove any one count.

The jury charge here suffers from the same non-direction identified in R. v. M.(B.). See also R. v. H. (F.J.) (2000), 2000 CanLII 5700 (ON CA), 145 C.C.C. (3d) 169 (Ont. C.A.) at paras. 13-19.

[14] Moreover, in this case, the potential prejudice arising from this non-direction was amplified by the trial judge’s repeated instruction to the jury that it was to base its decision on consideration of all the evidence and the “accumulated” evidence at trial. Of course, this type of instruction is often necessary and proper. However, in this case, there was a crucial distinction to be made between the identification evidence admissible on one count in contrast to the identification evidence admissible on the other. The trial judge’s instruction, coupled with the non-direction that I have described, therefore created a significant danger that the jury would not have understood that its task was to give separate consideration to the identification evidence relating to each count. Rather, the jury might improperly conclude that it could consider all the identification evidence on each of the counts.

[15] This danger was not attenuated by the Crown’s indication to the jury that it was open to the jury to return different verdicts on each count. In the end, the jury was deprived of necessary guidance on the permissible uses of the Crown’s identification evidence.

[16] Nor do I accept that the failure of defence counsel at trial to object to these aspects of the jury charge is determinative of this appeal. Not every defence failure to challenge a jury charge at trial will preclude a subsequent challenge on appeal: see R. v. Austin, 2006 CanLII 39077 (ON CA), [2006] O.J. No. 4660 (C.A.) at paras. 14 and 15. In this case, the requisite instruction was not discretionary. To the contrary, in my opinion, it was mandatory.

[17] A second and related flaw in the jury charge concerns the instruction given to the jury on the identification evidence. The trial judge provided the jury with a general caution on the frailties of eyewitness identification evidence, which substantially conformed to the recommended instruction on this topic set out in the Ontario Specimen Jury Instructions for criminal trials. The appellant submits, however, that the trial judge erred by failing to relate this caution to the specific weaknesses in the identification evidence asserted by the defence.

[18] I agree. In R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 191 C.C.C. (3d) 289, this court reviewed the need for a direction, in an eyewitness identification case, warning the jury of any specific weaknesses in the identification evidence. Baltovich confirms that, in such cases, the need for the jury to exercise caution in approaching the identification evidence must be related to the particular facts of the case, that is, the jury’s attention must be drawn to the issues regarding the Crown’s identification evidence.

[19] This did not occur here. While the trial judge summarized much of the evidence relating to each count in her charge in a sequential fashion, and outlined the theories of the Crown and the defence, to the extent that she mentioned any of the frailties in the Crown’s identification evidence, she failed to link these to the dangers of relying on eyewitness identification evidence or to her earlier general caution regarding such evidence. Although defence counsel objected to this part of the jury charge (indeed, he sought a mistrial), the trial judge declined to recharge the jury on this issue.

4. Disposition

[20] I agree with the appellant that this was not an overwhelming Crown case. There was circumstantial evidence at trial that supported the defence theory that the drugs were supplied on the occasions in question, not by the appellant, but by his brother. In these circumstances, it was essential that the jury be guided properly on the approach to be taken concerning the use of the Crown’s identification evidence.

[21] In view of the defects in the jury charge described above, the verdicts cannot stand. The Crown, quite properly, does not suggest that there is room in this case for the application of the proviso. As the identified defects in the jury charge necessitate a new trial, I need not address the appellant’s other grounds of appeal.

[22] For the reasons given, I would allow the appeal and direct a new trial.

RELEASED: FEB 2, 2007 “E.A. Cronk J.A.”

“EAC” “I agree J-M. Labrosse J.A.”

“I agree Robert P. Armstrong J.A.”