COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lapps, 2016 ONCA 142

DATE: 20160223

DOCKET: C59288

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Lapps

Appellant

Daniel C. Santoro, for the appellant

Roger A. Pinnock, for the respondent

Heard: February 18, 2016

On appeal from the convictions entered by Justice E. Ewaschuk of the Superior Court of Justice, sitting with a jury, dated October 14, 2013.

By the Court:

[1] The appellant was charged with possession of cocaine for the purpose of trafficking, importing and trafficking cocaine. His first trial by judge and jury ended in a mistrial when the jury could not arrive at a verdict. The Crown re-prosecuted, again before a judge and jury. At the second trial, the jury convicted the appellant on the possession and importing charges but failed to arrive at a verdict on the trafficking charge. The appellant was sentenced to eight years' imprisonment.

[2] The appellant appeals against his convictions. His main ground of appeal is that the trial judge fatally erred by failing to correctly and comprehensively respond to a critical question from the jury, at a time when the jury was clearly struggling in its deliberations. This error, the appellant says, invited unreasonable verdicts and gave rise to the real risk that, without proper assistance from the trial judge, the jury would engage in impermissible compromise regarding its verdicts.

[3] In the particular circumstances of this case, we agree that the trial judge’s incomplete and unhelpful response to the jury’s question compromised trial fairness and may well have led to unsafe verdicts. As a result, the convictions cannot stand.

[4] It was the Crown’s theory at trial that the appellant, a cross-border truck driver, had hidden cocaine in his commercial vehicle while in the United States, imported it into Canada in his vehicle, and provided it to his friend Kenneth Jackson, a known drug dealer, shortly after returning to Canada at a direct, person-to-person meeting between the appellant and Mr. Jackson conducted at an industrial complex.

[5] The appellant denied that he had ever been in possession of the cocaine or that he had transferred, given or delivered any cocaine to Mr. Jackson. He maintained that the police officers who claimed to have seen him give a teal bag to Mr. Jackson were not telling the truth, that police surveillance evidence was fabricated, and that customs officials had falsified their records regarding the appellant’s movements in his vehicle.

[6] In this context, three aspects of the trial judge’s jury charge are particularly relevant.

[7] First, early in his charge, the trial judge addressed what he described as “contradictory evidence.” He pointed out that there was contradictory evidence as to whether the appellant “had possession of a teal bag containing cocaine which he handed over to Kenneth Jackson at the industrial complex.” The trial judge then explained the requirements of R. v. W.(D.), [1991] I SCR 742. In so doing, he repeatedly described the evidentiary conflict on this question as the “essential matter” for the jury’s determination.

[8] Shortly thereafter, the trial judge stated:

THE KEY ISSUE

It seems to me that the key factual issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused, Dale Lapps, transferred cocaine to Kenneth Jackson at the industrial complex.

If so satisfied, you should have little difficulty in convicting the accused, Dale Lapps, of all three charges he faces.

However, if not so satisfied, you must acquit the accused of all three charges.

[9] The trial judge returned to this theme in his charge, for a third time, when describing the appropriate approach for the jury’s consideration of the case. At this point, the trial judge again said:

It seems to me that, as I have already stated, that the key factual issue in this case is whether the accused, Dale Lapps, physically delivered the cocaine to Kenneth Jackson at the industrial complex.

[10] The trial judge then added:

In determining that issue, you must assess all of the evidence, including the wiretaps, the numerous references to “Uncle” on the wiretaps, the surveillance evidence, the customs’ documents and the accused Lapps’ own testimony.

Assuming you find as fact beyond a reasonable doubt that the accused Lapps handed over the cocaine to Kenneth Jackson at the industrial complex, you should have little difficulty in convicting the accused Lapps of all three charges before the court.

However, if you have a reasonable doubt as to whether the accused Lapps handed Kenneth Jackson the cocaine, you should acquit the accused, Lapps, outright of all three charges before the Court.

[11] Thus, at three different points in his charge, the trial judge identified a “key” or “essential” factual issue for determination by the jury – whether the appellant handed or transferred cocaine to Mr. Jackson – and explained the legal consequences of an affirmative finding that the hand-off or transfer had occurred. The case therefore went to the jury on the basis that the pivotal issue was whether the appellant had transferred the cocaine to Mr. Jackson when they met at the industrial complex. The jury was told expressly that if it had a reasonable doubt on “this essential matter”, that is, unless they were satisfied that the appellant made the transfer of the cocaine, it should acquit the appellant of all charges.

[12] Neither the Crown nor the defence objected to these instructions. Indeed, these instructions were entirely consistent with the way the Crown ran the case.

[13] The jury deliberated for three days without reaching any verdicts. At about noon on the third day, it asked the following question:

If we find [the appellant] guilty of importing the cocaine, must we find him guilty of trafficking?

[14] The trial judge canvassed an appropriate response to this question with both counsel. In so doing, he said: “The answer is no, obviously, right? They are entitled to take different views of the evidence.”

[15] Both counsel agreed. However, defence counsel did express concern that the jurors were under pressure and that, as a result, “they may start making compromises that really don’t reflect how they truly feel about the evidence.”

[16] The jury was then recalled and instructed as follows:

THE COURT: Thank you, Exhibit “H”: If we find Lapps guilty of importing the cocaine, must we find him guilty of trafficking? The answer to your question is “no”. You are entitled to take different views of the evidence so that you may convict the accused on one charge but not on the other charge.

[17] The effect of this response was to tell the jury, for the first time, that the evidence could support different verdicts on the importing and trafficking charges. This directly conflicted with the trial judge’s earlier repeated instructions regarding the central issue in the case, and the legal consequences that would flow from the jury’s determination of that issue.

[18] The trial judge provided no elaboration nor any guidance to the jury on this alternate and late-breaking theory of the case. Nor did he relate it to the evidence or the parties’ positions at trial. The trial judge also failed to caution the jury against engaging in impermissible verdict compromise based on expediency, frustration or a desire to simply resolve the case and complete their deliberations.

[19] As we have said, the suggestion that the jury could return different verdicts on the importing and trafficking charges was put to the jury mid-day on the third day of its deliberations. Jury deliberations continued for another day. At about noon on the fourth day, the jury returned verdicts of guilty on the possession and importing charges. It was unable to reach a verdict on the trafficking charge.

[20] In the circumstances of this case, it was dangerous and inappropriate to leave the jury entirely adrift to assess alternate and conflicting bases of culpability on its own, without any reference to the evidence and the positions of the parties. Of particular concern, the trial judge failed to provide any explanation to the jury for the conflict between his earlier instructions, described above, and his response to their query concerning the importing and trafficking charges.

[21] There is a strong argument on this record that the evidence at trial did not support a finding of guilt on the importing charge without a finding of guilt on the trafficking charge. Even if some evidentiary basis for disparate verdicts on these charges could be teased from the trial record, it was incumbent on the trial judge to provide the jury with assistance on the evidence bearing on each charge. This was especially so where, as here, the jury was clearly struggling with the concept of reasonable doubt and appeared to be deadlocked on the trafficking charge.

[22] On this ground alone, we conclude that the appeal must be allowed. It is therefore unnecessary to address the appellant’s other grounds of appeal.

[23] For the reasons given, the appeal is allowed and a new trial is ordered.

Released:

“FEB 23 2016” “Doherty J.A.”

“DD” “E.A. Cronk J.A.”

“H.S. LaForme J.A.”