R. v. Erez, 2010 ONCA 776
CITATION: R. v. Erez, 2010 ONCA 776
DATE: 20101116
DOCKET: C49821 C49755
COURT OF APPEAL FOR ONTARIO
Sharpe, MacFarland and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Sean Opher Erez
Appellant
James Lockyer and Brian Snell, for the appellant (C49821)
Jason Wakely, for the respondent (C49821)
Heard: October 26, 2010
On appeal from the conviction imposed by Justice Frances P. Kiteley of the Superior Court of Justice, dated October 1, 2008.
AND BETWEEN
Her Majesty the Queen
Applicant/Appellant
and
Sean Opher Erez
Respondent
Jason Wakely, for the appellant (C49755)
James Lockyer and Brian Snell, for the respondent (C49755)
Heard: October 26, 2010
On appeal from the sentenced entered by Justice Frances P. Kiteley of the Superior Court of Justice, dated November 21, 2008.
ENDORSEMENT
[1] The appellant appeals his conviction for the offence of possession of cocaine for the purpose of trafficking. He says a series of errors on the part of the trial judge have resulted in a miscarriage of justice. With his usual candour, Mr. Lockyer concedes that none of the errors of which complaint is made, standing alone, would be sufficient to permit this court to allow the appeal but, when taken together, the cumulative result is a miscarriage of justice.
[2] The first issue relates to the evidence of the witness, Ms. Atiban. The witness was originally charged along with the appellant and his co-accused. She was the ex-girlfriend of the appellant. In exchange for giving evidence against the appellant, her charges were stayed. Her animus toward the appellant was evident throughout her evidence. Difficulties with her evidence were anticipated from the outset.
[3] First when Ms. Atiban was asked whether the appellant was employed she responded to the effect that he earned his living by gambling, both legal and illegal, borrowing money from friends and pawning jewellery. The trial judge permitted the Crown to lead evidence about the legal activities in which the appellant engaged that earned him income including gambling in the casino, borrowing money from friends and pawning jewellery.
[4] The appellant argues that these activities and in particular the gambling reflect badly on the appellant’s character and amount to what is in essence bad character evidence. We do not accept this submission. We do not agree this evidence can amount to bad character evidence. The trial judge ruled that the witness could not, however, testify about any illegal gambling activities in which she claims the appellant was involved. In our view, the ruling was correct and fair.
[5] Next the appellant argues that Ms. Atiban, on several occasions mentioned that the appellant was in jail and once that he’d been on parole.
[6] On the first occasion, the trial judge asked defence counsel if he wanted a mid-trial instruction to be given to the jury on that point and he declined.
[7] On the subsequent occasions when jail was mentioned, no objection was made by defence counsel and again when asked, he declined the trial judge’s offer to give a mid-trial instruction.
[8] During cross-examination, the witness again mentioned jail when she was asked about a telephone conversation she’d had with the appellant. Defence counsel tried to have Atiban agree with his suggestion that the appellant may have indicated a willingness to plead guilty out of devotion to her. When defence counsel pushed Ms. Atiban suggesting that in that telephone conversation the appellant had never confessed his guilt to her she responded that he was unlikely to do that when he was talking on a phone from the jail. Once again, no objection by defence counsel and no request for a mid-trial instruction.
[9] As the respondent states at para. 68 of its factum:
In short, not only did defence counsel oppose any instruction to the jury about the appellant’s detention, but he actively elicited additional evidence about the very subject. This was a tactical decision aimed at neutralizing the very damning effect of the recorded conversation. This tactical decision should not be revisited on appeal.
[10] The sole reference to the appellant being on parole was elicited by defence counsel when he asked Ms. Atiban why the appellant would use her cell phone instead of his own. She responded that he did so because he had to provide his cell phones to a parole officer.
[11] Again defence counsel did not request any mid-trial instruction. The trial judge in her charge did, however, instruct the jury to disregard such evidence.
[12] Ms. Atiban, during cross-examination, also responded to a question about her own use of drugs by asking counsel if he wanted to discuss the appellant’s extensive use of drugs. The appellant moved for a mis-trail which motion was dismissed by the trial judge. She did however, at that point direct the jury to disregard Ms. Atiban’s evidence about the appellant’s drug use.
[13] Counsel suggests that the language used by the trial judge in her mid-trial instruction on this point was unfortunate, prejudiced the defence and was incapable of remedy. It ought to have provided a sufficient basis for a mis-trial. We do not agree. In our view, the instruction was appropriate at the time. The trial judge said:
… At this point in the trial, the character of Mr. Erez is not in issue. I am instructing you to disregard the evidence that Ms. Atiban just gave before the recess about Mr. Erez’s drug use.
[14] The appellant suggests that this language left the jury with the inference that he had a bad character but they were not going to hear about it NOW. We do not agree. At that point in time, the trial judge had no way of knowing if at some future point in the trial the appellant’s character may be put in issue. The instruction was appropriate in all the circumstances and she repeated it in her charge to the jury when she told them to disregard the evidence because Erez’s character was not in issue.
[15] The next complaint concerns the closing submissions of the co-accused Mr. Starchik who was not represented by counsel at trial. The appellant submits that Mr. Starchik, who did not testify, gave evidence in his submissions to the jury. His “evidence” of which complaint is made may be grouped into three categories:
that he was a poor man, with no money and could not afford to pay the hotel bill or a lawyer;
he was “commanded” to do what he did and had to leave Montreal so quickly he did not have time to pack;
he lied to the police, telling them Ms. Atiban was his girlfriend to protect someone else in the hotel.
[16] The effect of this evidence it is argued, would have the jury conclude:
that Starchik would not have had the financial ability to acquire the drugs in question therefore the drugs had to belong to the appellant;
that the appellant “commanded” him and was the ringleader. Starchik was just following orders;
he lied to police to protect the appellant.
[17] Immediately following Mr. Starchik’s address to the jury, the trial judge told the jury to disregard what he had said about coming from Montreal to Toronto in such a hurry he didn’t have time to pack and that he’d been commanded to go to Toronto. She told the jury there was no evidence to support his statements nor any evidence from which any such inference could be drawn.
[18] Further, she told them there was no evidence he was protecting anyone and no evidence from which they could make such an inference. She did not give any direction in relation to his comments about his impecuniosity. In our view, no harm was done as the result of this omission. It would have been apparent to the jury, that in all likelihood, Starchik would have been represented by counsel if he were able to afford it, particularly in view of the very serious charge he faced. The comment regarding the payment of the hotel bill, viewed in context, was of little significance.
[19] The next motion for mistrial followed the Crown’s closing remarks. In his closing submissions the Crown referred to the appellant as an “overseer” in relation to the events in question. In his opening remarks, the Crown took the position that the appellant and his co-accused were engaged in a joint venture.
[20] In response to defence counsel’s motion for a mis-trial on the basis of Mr. Starchik’s closing submissions to the effect that he had been “commanded” and Crown’s “overseer” theory, the trial judge said she had already ruled on Starchik’s remarks and instructed the jury accordingly. In relation to the Crown’s closing submissions, she ruled that provided there was an independent basis in the evidence to support the theory – independent of Starchik’s assertions – then the theory could go to the jury. We agree.
[21] This was a difficult trial, with two accused where only one of whom was represented by counsel. Ms. Atiban was a difficult and volatile witness.
[22] In our view, the trial judge did an admirable job in all the circumstances. Her mid-trial instructions to the jury were clear and to the point. In addition to her mid-trial instructions, the trial judge cautioned the jury in relation to Ms. Atiban’s evidence and provided a Vetrovec warning. She re-iterated her instruction to disregard any evidence of the appellant’s bad character. She repeated her instruction in relation to Mr. Starchik’s closing comments that were without evidentiary foundation. They jury would not have been left in any doubt about how they were to go about their task.
[23] In all the circumstances, we are of the view that the complaints made by the appellant, whether considered alone or cumulatively, would not support a motion for a mis-trial or rendered the trial unfair.
Sentence Appeal
[24] The Crown appeals the sentence imposed on the appellant. The Crown submits that the sentence was not within the range for this quantity of drugs and this offender. The Crown submits that the range for this offender is 5 to 12 years and not 5 to 9 years as the trial judge found.
[25] Secondly, the Crown argues that the trial judge ought to have ordered that the appellant be required to serve half of his sentence before being eligible for parole.
[26] Lastly, it is argued that the trial judge erred in failing to order that the appellant provide a DNA sample.
[27] We called on the appellant to respond only to the argument in relation to the DNA order.
[28] The trial judge in her careful reasons on sentence considered all the factors and concluded that a proper sentence for this offender was 8 years. While the sentence could have been higher, we see no error in principle that would permit this court to interfere.
[29] As for the parole eligibility order, the trial judge concluded that the Crown had not persuaded her that this exceptional measure was required in this case. In our view, even accepting the Crown’s submission that R. v. Zinck modified or refined the approach set out in R. v. Goulet applied by the trial judge, it is apparent that the result would have been the same. We would not give effect to this ground of appeal.
[30] Finally, as for the DNA order we note that in her written reasons the trial judge ordered that the appellant provide a DNA sample. At the time of sentencing however, after objection by defence counsel she appears to have changed her mind.
[31] In our view, violence is not a necessary pre-condition for making a DNA order. Possession for the purpose of trafficking is a secondary designated offence under s. 487.04 of the Code and accordingly it was open to the trial judge to impose a DNA order and she ought to have done so. As Rosenberg J.A. of this court noted in R. v. Hendy “in the vast majority of cases” it would be in the best interests of the administration of justice to make the order. This was a serious offence and not the appellant’s first conviction for trafficking in drugs.
[32] Accordingly, we would allow the sentence appeal in part to include an order that the appellant provide a DNA sample.
[33] In all other respects, the sentence appeal is dismissed.
“Robert J. Sharpe J.A.”
“J. MacFarland J.A.”
“Paul S. Rouleau J.A.”