Court File and Parties

CITATION: R. v. Alphonso, 2008 ONCA 238

DATE: 20080404

DOCKET: C46288

COURT OF APPEAL FOR ONTARIO

DOHERTY, MOLDAVER and CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN Respondent

and

TOMIKEO ALPHONSO Appellant

Counsel: David E. Harris for the appellant Christopher Walsh for the respondent

Heard and orally released: March 31, 2008

On appeal from the convictions entered by Justice McGarry of the Superior Court of Justice, sitting with a jury, dated May 10, 2006.

ENDORSEMENT

[1] The appellant was convicted of selling crack cocaine to an undercover police officer. The officer who made the purchase testified that the appellant was the person who sold him the cocaine on June 4, 2003 in London, Ontario. The undercover officer had been shown a photograph of the appellant earlier that day. The undercover officer also testified to a chance encounter with the appellant the next day, June 5th. The officer testified that the person he saw on June 5th was the same person who sold him the cocaine on June 4th and the same person whose photograph he was shown earlier that day. The photograph was entered in evidence and was in fact a photograph of the appellant.

[2] A second police officer who was with the undercover officer on June 5th testified that he knew the appellant from prior encounters. When he saw the appellant, he addressed him by name and the appellant responded. The appellant was arrested a few months later, after the undercover operation was completed.

[3] The appellant testified that he was in Toronto on June 4th and 5th and was not the person who sold the cocaine to the undercover officer. The appellant’s mother testified that the appellant was living in her house in Toronto on June 4th and 5th and abiding by an 11:30 p.m. curfew.

[4] The first ground of appeal relates to the trial judge’s instruction to the jury on identification. Counsel for the appellant submits that the trial judge failed to draw the important distinction between the reliability of identification evidence and the credibility of the witness giving the identification evidence. Counsel for the appellant submits that the trial judge conflated the two and, in effect, invited the jury to infer reliability because of the police officer’s certainty with respect to his identification, particularly his identification on June 5th.

[5] Passages of the instruction suggest that the trial judge did fall into the error alleged by counsel for the appellant. Read in isolation, these passages would indicate that the trial judge suggested to the jury that factors demonstrating the certainty of the officer’s testimony could provide a basis to infer that the evidence was, therefore, reliable. Certainty cannot be equated with reliability in respect of identification evidence. The certainty or uncertainty of an eyewitness’s identification is a factor that a jury may consider in assessing the ultimate reliability of that evidence. Its importance as a factor for the jury will depend on the totality of the circumstances and the assessment of the particular jury.

[6] Despite the passages that we think give legitimacy to counsel for the appellant’s submission, the totality of the instruction on identification evidence satisfies us that the jury would clearly understand that the officer’s certainty with respect to his identification was but one of many factors that the jury could consider in making its ultimate assessment as to the reliability of the evidence. Both before and after the impugned passages, the trial judge expressly told the jury that the certainty of the identification could not be equated with its reliability and that witnesses who were certain in their identification evidence could well be shown to be wrong in that identification. We see no error in the instruction when it is considered as a whole.

[7] The second ground of appeal arises out of the Crown’s cross-examination of the appellant. The Crown cross-examined the appellant concerning the names of persons who, on the appellant’s version of events, could support his alibi.

[8] Counsel for the appellant submits that a jury can never be told that it can draw an adverse inference from the failure to call a witness who, according to the appellant, could support the appellant’s alibi. We need not decide that question of law and should not be taken as accepting the appellant’s submission.

[9] The Crown was entitled to explore the appellant’s alibi evidence on cross-examination and test that evidence for details or the absence of details as a means of challenging the appellant’s credibility. Details can include questions concerning the appellant’s whereabouts and the people the appellant was with at the relevant time. Crown counsel pursued this form of cross-examination.

[10] The trial judge specifically told the jury that it could not draw any adverse inference from the failure to call certain witnesses. This instruction effectively removes any need to consider the legal issue raised by counsel for the appellant. There was no objection to the instruction and, in our view, none could legitimately be taken. The cross-examination was not improper.

[11] The third ground of appeal also relates to the Crown’s cross-examination of the appellant. This part of the cross-examination related to the appellant’s prior conviction for breach of probation. The impugned cross-examination did no more than confirm the witness’s earlier evidence given in-chief that he had been convicted of breaching a probation order. In our view, no prejudice could flow to the appellant from this cross-examination. We also note that the trial judge gave a clear and accurate instruction as to the limited use that the jury could make of the appellant’s evidence concerning his prior criminal record. This ground of appeal cannot succeed.

[12] The appeal is dismissed.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“E.A. Cronk J.A.”