Court of Appeal for Ontario

Citation: R. v. Harris, 2010 ONCA 33

Date: 2010-01-20

Docket: C50160, C49648

Before: Winkler C.J.O., Goudge and Watt JJ.A.

Between: C50160 Her Majesty the Queen Respondent and Kevin Harris Appellant

And Between: C49648 Her Majesty the Queen Respondent and Jermaine Hylton Appellant

Counsel: Delmar Doucette, for the appellant Harris Michael Dineen, for the appellant Hylton Benita Wassenaar, for the respondent

Heard and released orally: January 12, 2010

On appeal from convictions entered by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury, on July 6, 2007.

Endorsement

[1] The case for the prosecution consisted entirely of circumstantial evidence.

[2] The appellant Harris advances two grounds of appeal. Both relate to what are said to be deficiencies in the trial judge's instructions to the jury.

[3] First, Harris says that the instructions given about the victim's references in his 911 call and police statement made shortly after the home invasion describing the accented speech of the invaders were incorrect. The witness had "hypothesized", as he put it at trial, that the invaders' accents were Sri Lankan or East Indian, not Caribbean or Jamaican. The appellants are said to have Jamaican accents.

[4] At the request of defence counsel, the trial judge framed her instructions principally as if these statements were prior inconsistent statements, which they were not. But the trial judge also told the jury that they could take the 911 call and statement as evidence of their truth, in other words, as evidence that the speakers were of a different ethnic origin than the persons charged. The jury could not have been under any misapprehension about the use they could make of this evidence in determining the adequacy of the prosecutor's proof of guilt.

[5] The second complaint is that the trial judge should have told the jury that the difference between a described trait of an alleged perpetrator and the known trait of an accused can undermine other evidence supportive of guilt. We are not persuaded that the charge was deficient in this respect. The issue was fairly put to the jury and left for their determination.

[6] Thirdly, the appellants argue that the trial judge erred in failing to bring to the jury's attention the evidence concerning continuity as it related to a second durag that the accused Hylton was wearing when he was arrested. We do not agree. The issue for the jury was not that, but the continuity of the durag found at the complainant's home on the night of the home invasion. The trial judge carefully and fairly reviewed for the jury the evidence relating to this issue. There was no need for her to go further. This ground of appeal also fails.

[7] The appeal therefore must be dismissed.

"Winkler C.J.O."

"S.T. Goudge J.A."

"David Watt J.A."