Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20200210 DOCKET: C64170 & C66470
Judges: Rouleau, Benotto and Harvison Young JJ.A.
BETWEEN Her Majesty the Queen Respondent
and Zachary Torcaso and Dereck Maione Appellants
Counsel: Michael Lacy and Bryan Badali, for the appellant Zachary Torcaso Philip Norton, for the appellant Dereck Maione Katie Doherty, for the respondent
Heard and released orally: February 5, 2020
On appeal from the convictions entered on January 26, 2017 (C64170 & C66470), and the sentence imposed on June 28, 2017 (C64170), by Justice Michael Varpio of the Superior Court of Justice.
Reasons for Decision
[1] The charges arose out of a home invasion. The two appellants were convicted of break and enter. The appellant Torcaso was also convicted of assault.
[2] Both appellants submit that a letter sent to the trial judge apparently by a juror during the trial compromised the fairness of the trial. Torcaso argues that the trial judge erred his charge as to the identity issue.
The Reasonable Apprehension of Bias Issue
[3] First, with respect to the letter sent to the judge, the appellants argue that the letter raised a reasonable apprehension of bias. We disagree.
[4] The juror denied authoring the letter or having ever seen it. From our review of the evidence, the circumstances and the denial that she wrote the letter, we see no reason to look behind her denial. We note that nothing in the letter bears on the merits of the case. It complimented the Crown on his appearance and conduct during the case “so far” and indicated that she knew someone who would be a good match for him.
[5] Moreover, even if she wrote the letter, it does not meet the high standard required to raise a reasonable apprehension of bias. Nothing in the letter suggested that she would not respect her oath and decide the case on the evidence.
[6] The appellant also argues that the entire sequence of events, including the judge’s inadvertent delay in discovering the letter, the manner in which the inquiry was conducted and the treatment of the juror’s communication with the Crown office just after the post-verdict inquiry, affects the appearance of fairness and risks bringing the administration of justice into disrepute.
[7] We do not agree that the cumulative effects of these steps rose to the level that the fairness of the entire process was compromised. Nor do we find error with the inquiry process. The trial judge reviewed each step of the inquiry with counsel, and we see no basis for concluding that any of these steps compromised the appearance of fairness.
The Identity Issue
[8] Identity was the central issue at trial. The appellant Torcaso submits that the trial judge failed to instruct the jury adequately on the identification evidence, in failing to include a separate section of his charge independently reviewing the evidence and pointing to specific weaknesses in the identity evidence. Again, we disagree.
[9] This was a one issue trial. The trial judge directed the jury to be cautious regarding eye-witness testimony including the usual cautions about the frailties of eye-witness identification. In the circumstances of this case, the jury was given the tools they needed to do their job. The structure of the trial judge’s charge and the manner in which he set out the evidence discloses no legal error. Based on the totality of the instructions in the context of the entirety of this case, the jury would have understood that identity was really the issue they had to resolve. They were provided with the law that applied to that issue, the positions of the parties and the evidence relevant to the positions of the parties on the central issue of identity. Even if the charge could have been organized differently or more could have been said that does not indicate the instructions were flawed.
[10] As conceded by the Crown, the sentence appeal of Torcaso is allowed to the extent of striking the victim’s surcharge. The appeals are otherwise dismissed.
“Paul Rouleau J.A.”
“M.L. Benotto J.A.”
“A. Harvison Young J.A.”