Court of Appeal for Ontario

CITATION: R. v. Myers, 2013 ONCA 716

DATE: 20131122

DOCKET: C54377

Weiler, MacFarland and Watt

BETWEEN

Her Majesty the Queen

Respondent

and

Jahdel Myers

Appellant

Counsel:

R. Craig Bottomley and Chris Sewrattan, for the appellant

Deborah Calderwood, for the respondent

Heard and released orally: November 7, 2013

On appeal from the conviction entered by Justice Alison Harvison Young of the Superior Court of Justice, sitting with a jury, dated May 26, 2011.

ENDORSEMENT

[1] In this case the central issue before the court was whether the appellant had been in possession of the recovered handgun just before his arrest. The handgun, the bullets and magazine had been examined for fingerprints by the Forensic Identification Service and none were found.

[2] The appellant raises one ground of appeal. In his closing submissions to the jury, defence counsel said:

I know if I touched a gun and threw it, I’d probably leave prints all over it, but there is no fingerprints found on this gun.

Also,

If he touched it, his prints would be all over it. Simple as that. That’s a hallmark of truth. If Mr. Myers touched that gun with no gloves his prints would be all over that gun or probably DNA as well, especially if it is tucked into your waist.

and finally

One thing we know for sure is, it wasn’t Mr. Myers because his prints aren’t on it and he wasn’t wearing any gloves.

[3] It is conceded that these comments were improper and, in effect, amounted to defence counsel giving evidence. A correcting instruction was required and the trial judge determined that the appropriate time to give that instruction was right after the defence counsel’s submission.

[4] It is not seriously argued that it was an error for her to do so at that time, however, it is submitted that the trial judge went too far. She said:

Members of the jury as you know we are about to hear the Crown’s closing submission. Before we do so however there is one matter arising from the defence closing from Mr. Da Silva that I wish to raise with you. In making his submission on fingerprints and other forensic evidence Mr. Da Silva said if Mr. Myers had held the gun, there would have been fingerprints.

As a matter of law I must tell you that you heard no evidence on this issue. There is no evidence before this court, before you, as to whether fingerprints are usually, always, or never found on a firearm handled by someone who is not wearing gloves.

Accordingly, you may not reason that because there were no prints on the gun, Mr. Myers couldn’t have handled it.

[5] Had the trial judge stopped before that last sentence, “accordingly, you may not reason that because there were no prints on the gun, Mr. Myers couldn’t have handled it.”, we are of the view that the instructions would have been unobjectionable. However, the effect of that final sentence was to take from the jury a defence open to the appellant to advance and the general instructions elsewhere in the charge to the jury did not overcome this error. This was a serious error and deprived the appellant of the ability to argue that the lack of fingerprint evidence raised a reasonable doubt.

[6] In our view, it cannot be said here that there is no reasonable possibility that this error would not have affected the verdict.

[7] Accordingly, the proviso cannot be applied. The appeal is allowed and a new trial is ordered.

“Karen Weiler J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”