COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2013 ONCA 222

DATE: 20130408

DOCKET: C54740

Doherty, Rouleau and Epstein JJ.A.

Her Majesty the Queen

Respondent

and

Prinze Wilson

Appellant

Howard Cohen and Crystal Tomusiak, for the appellant

Brian G. Puddington, for the respondent

Heard and released orally: April 2, 2013

On appeal from the conviction entered by a jury presided over by Justice Faye McWatt of the Superior Court of Justice, dated April 12, 2011, and the sentence imposed on November 18, 2011.

ENDORSEMENT

[1] The appellant was convicted by a jury of trafficking in cocaine and possession of property obtained by crime. He received a conditional sentence.

[2] The appellant alleges five errors in the charge to the jury. None were raised at trial before the jury returned its verdict. In our view, none warrant reversal of the verdict.

[3] This was a straightforward case. The appellant was arrested in a stairwell of his apartment complex with 22 packages of crack cocaine in his hands weighing approximately 8 grams. At trial, the appellant claimed that he was only in the stairwell to purchase crack cocaine and that when the police entered the stairwell, the true dealer of the cocaine, Shane Whiting, threw the drugs down the stairs and fled the scene. In the confusion, the appellant said he picked up the discarded drugs and was immediately arrested. Mr. Whiting testified at the trial and his evidence was consistent with the appellant’s version of events.

[4] In his testimony, the appellant depicted himself as a desperate drug addict looking only to feed his cocaine addiction. As indicated above, Whiting testified that he was in fact the drug dealer and that he had come forward at the appellant’s trial to exonerate the appellant out of a sense of loyalty and duty to his clients.

ground of appeal #1 – The trial judge’s slip of the tongue

[5] In the course of explaining reasonable doubt to the jury, the trial judge said:

The presumption of innocence means that Mr. Wilson started the trial with a clean slate. The presumption stays with him throughout the case, including your deliberations at the end of the trial. It is only defeated if and when Crown counsel satisfied you, beyond a reasonable doubt, that Mr. Guilty, I’m sorry, Mr. Wilson is guilty of the crime charged. Mr. Wilson does not have to present evidence or prove anything in this case. In particular, that he is innocent of the crime charged. From start to finish, it is Crown counsel who must prove the person charged guilty beyond a reasonable doubt. It is Crown counsel who must prove Mr. Wilson’s guilt beyond a reasonable doubt and not Mr. Wilson who must prove his innocence. You must find Mr. Wilson not guilty of an offence unless Crown counsel satisfies you beyond a reasonable doubt that he is guilty of it. [Emphasis added.]

[6] Nothing was said about the trial judge’s obvious slip of the tongue until after the appellant’s conviction when the appellant moved for a mistrial based on an alleged reasonable apprehension of bias. The trial judge dismissed the application and explained how she came to make the misstatement.

[7] On appeal, counsel submits that there was a “powerful risk” that the jury would take the comment as an indication of the trial judge’s personal view of the merits of the case.

[8] We see no merit to this submission. The jury, as reasonable intelligent people, would take the comment for what it clearly was – an inadvertent misstatement quickly corrected, probably before it was even noticed. To suggest that the jury would take some expression of the trial judge’s personal opinion of the merits of the case from an obvious slip of the tongue is not only to speculate, but also to assume a degree of irresponsibility and irrationality incompatible with the important function of the jury in the criminal justice process.

ground #2 – the absence of a limiting instruction on the “bad character” evidence

[9] The appellant led evidence during his examination-in-chief of his addiction to cocaine and the very negative lifestyle he had as a result of that addiction. The evidence was led presumably to support the appellant’s position that he was a drug user and not a drug trafficker. On cross-examination, Crown counsel also elicited evidence about the appellant’s lifestyle in an effort to show that the appellant was a thoroughly dishonest and unreliable person whose evidence could not be believed. The cross-examination of the Crown did not invite propensity reasoning, but did invite the jury to disbelieve the appellant in part because of his habitual dishonesty which the appellant attributed to his addiction.

[10] Nor, in our view, was propensity reasoning based on the appellant’s acknowledged dishonesty a live concern on this record. An instruction against propensity reasoning was unnecessary and could potentially have introduced the risk of propensity reasoning into the process.

ground #3 – the trial judge’s answer to the jury’s question

[11] The jury asked a series of factual questions during its deliberations. The trial judge, with the assistance of counsel, answered each question. In one of the questions, the jury asked for a timeline between certain events. After reviewing the matter with counsel, the trial judge told the jury that none of the witnesses had provided such a timeline and she proceeded to summarize what counsel had agreed was the effect of the relevant evidence.

[12] Appellate counsel, armed with a transcript of the trial, has found a reference in one of the officer’s evidence to a time estimate. He argues that the failure to bring this evidence to the jury’s attention constitutes reversible error.

[13] The appellant must demonstrate that the failure to refer to this piece of evidence resulted in a miscarriage of justice. Clearly, the evidence was not regarded as significant by the defence at trial. Counsel apparently had no recollection of it. Nor, with the clarity of hindsight, can we see the significance of this evidence. In our view, there was no prejudice much less a miscarriage of justice occasioned by the trial judge’s response to the question.

ground #4 – the w.d. instruction

[14] Counsel submits that the trial judge failed to instruct the jury that the W.D. instruction applied to the exculpatory evidence of Mr. Whiting. The trial judge did not specifically tell the jury that it must acquit if the evidence of Mr. Whiting left it with a reasonable doubt. The trial judge could have given that instruction and might have given it had she been asked to do so.

[15] The trial judge did, however, make it clear to the jury that even if it totally rejected the appellant’s evidence, it could not convict unless it was satisfied of the appellant’s guilt beyond a reasonable doubt based on the rest of the evidence. Clearly, the jury could not have been so satisfied if Mr. Whiting’s exculpatory evidence left them with any doubt.

[16] We also accept Crown counsel’s submission that the outright rejection of the appellant’s evidence, a fair inference given the W.D. instruction, would, of necessity, lead to an outright rejection of Mr. Whiting’s evidence. Their evidence was, for all intents and purposes, the same on the crucial question of who as between the two of them was the drug trafficker.

ground #5 – the reference to “hearsay evidence” in the trial judge’s summary of the evidence

[17] The trial judge briefly summarized one of the officer’s evidence. In doing so, she made reference to what was arguably hearsay evidence given by the officer. No one had raised a hearsay objection at any point of the trial. In our view, it was unnecessary for the trial judge in the course of her instructions to the jury to introduce the concept of hearsay.

the sentence appeal

[18] The issues raised in the factum in respect of sentence were not pressed on appeal and we would dismiss the appeal from sentence.

“Doherty J.A.”

“Paul Rouleau J.A.”

“Gloria Epstein J.A.”