R. v. Edwards, 2022 ONCA 78

COURT OF APPEAL FOR ONTARIO

DATE: 20220128 DOCKET: C65250

Paciocco, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Kawayne Edwards Appellant

Counsel: Eric Neubauer, for the appellant Anna Martin, for the respondent

Heard: January 13, 2022 by video conference

On appeal from the conviction entered by Justice David Salmers of the Superior Court of Justice, sitting with a jury, on August 27, 2017.

Sossin J.A.:

[1] After a seven-day trial, a jury found the appellant guilty of drug trafficking, possession of the proceeds of crime, and possession of drugs for the purpose of trafficking.

[2] The appellant appeals his conviction on the basis that the trial judge gave deficient jury instructions.

[3] For the reasons that follow, I would dismiss the appeal. While the trial judge failed to appropriately caution the jury, the evidence against the accused was overwhelming. As a result, the curative proviso applies.

FACTS

[4] On September 2, 2015, an undercover officer contacted a person known as “Tony” to arrange to buy crack cocaine. The officer was directed to an apartment window on Bloor Street in Oshawa, where he received 2.6 grams of cocaine for $240. None of the surveillance officers saw the actual purchase. However, a video recording of the initial meeting between the suspected drug dealer and the undercover officer allowed police to identify him as the appellant that same day.

[5] Six days later, the undercover officer arranged to buy more crack cocaine. He was let into the same apartment building and bought drugs from the same suspected drug dealer.

[6] Later that day, the appellant, along with two other individuals, exited the apartment building and got into a taxi. Police followed. One of the other individuals exited the taxi before it reached its final destination, but police continued to trail the taxi, eventually surrounding it, and arresting the appellant. Police seized a phone found near the appellant with the same phone number used by the undercover officer to coordinate the two drug transactions. The arresting officers also found a pair of Ray-Ban sunglasses.

[7] A search of the appellant’s person revealed the money used to purchase the drugs, and a subsequent search of the apartment where the drugs were bought discovered 56.5 grams of cocaine and an empty Ray-Ban sunglasses case in a backpack. Certain documents were found at the apartment with the name of the individual later identified as the person who exited the taxi before it reached its final destination.

TRIAL

[8] In addition to the undercover officer’s eyewitness testimony, the prosecution presented a range of circumstantial evidence, including items recovered from the taxi (such as the appellant’s phone, which had the undercover officer’s number saved in its contacts), and items recovered from the house (such as a backpack, and drug paraphernalia which the undercover officer recognized from the drug purchase).

[9] The prosecution also relied on utterances made by the appellant to the undercover officer at the meeting caught on video, including that the phone number the officer had called was his, and that he had told the undercover officer he was “good for a B.”

[10] The appellant elected not to testify. He conceded he was the “greeter” who met with the undercover officer to set up the drug purchase in the encounter captured on video, but alleged that he was not the individual who subsequently participated in the drug purchase upon which the prosecution based its allegation.

[11] The defence called the appellant’s mother, who testified that her son lived with her in Scarborough during the period of his arrest, and that she did not know what business he had in Oshawa that night. She did not recognize the backpack containing the crack cocaine nor remember her son wearing Ray-Ban sunglasses. Moreover, she did not recall contacting the appellant with the number used to arrange the drug transactions.

[12] The trial judge charged the jury according to Watt’s Manual for Criminal Jury Instructions. Beyond the role of the jury and the governing burdens and standards, the trial judge outlined the key issues as the drug trafficker’s identity and whether the appellant trafficked crack cocaine to the undercover officer on the dates in question. He also summarized the defence’s theory that the Crown had failed to link the apartment and, accordingly, the drug trafficking to the appellant. Defence counsel argued that the evidence actually incriminated the individual seen exiting the taxi before the appellant’s arrest.

[13] Neither the defence nor the Crown sought any significant amendment to the trial judge’s proposed instructions. In particular, neither party sought an instruction regarding eyewitness identification, voice recognition evidence, or circumstantial evidence in accordance with R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

ANALYSIS

[14] A trial judge is entitled to significant deference in any review of a charge to the jury. A trial judge’s instructions are considered as a whole, and are not held to a standard of perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R., at para. 31.

[15] The appellant contends that the trial judge made three errors in his charge to the jury:

1. The trial judge failed to provide a caution on eyewitness identification evidence;
2. The trial judge failed to provide a caution on voice identification evidence; and
3. The trial judge failed to provide a Villaroman caution on the circumstantial evidence in the case.

[16] I will address each issue in turn. As I conclude the trial judge did make errors in the charge to the jury, I also consider the application of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

(1) The trial judge failed to caution the jury on eyewitness evidence

[17] The identification of the appellant as the suspected drug dealer turned, in large part, on the eyewitness evidence of the undercover officer. He identified the appellant as the person who sold him drugs based both on his recollection and on the basis of video surveillance evidence of his meeting with the greeter, which the appellant conceded was him. The undercover officer also made an in-dock identification of the appellant during the trial.

[18] In his charge, the trial judge stated that the jury had to be convinced beyond a reasonable doubt that the appellant was the person who sold the drugs to the undercover officer, but did not provide any specific caution with respect to the frailties of eyewitness identification evidence.

[19] The jury would have been alerted to the importance of the eyewitness identification evidence as concerns over the reliability of this evidence featured prominently in the closing address of defence counsel, who identified a number of features he claimed cast doubt on the accuracy of the identification evidence.

[20] Not only was the testimony of the undercover officer identifying the appellant the only direct identification presented by the Crown, it was clearly of significance to the jury. Indeed, after deliberations began, the jury asked for the portion of the undercover officer’s testimony and cross-examination regarding his identification of and interaction with the appellant during the first drug purchase to be replayed. This was the only question posed by the jury during deliberations.

[21] Given the significance of this eyewitness identification evidence to the question of the appellant’s guilt and the attention paid by the appellant to difficulties he perceived in the manner in which the identification was made, in my view, more attention to this evidence was required in the trial judge’s charge.

[22] Concerns over the reliability of eyewitness identification evidence have been recognized in a number of cases. As Epstein J.A. stated in R. v. Jack, 2013 ONCA 80, 302 O.A.C. 137:

[13] The dangers inherent in eyewitness identification evidence and the risk of a miscarriage of justice through wrongful conviction have been the subject of much comment. Such evidence, being notoriously unreliable, calls for considerable caution by a trier of fact.

[14] It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness' identification that must be established. The danger is an honest but inaccurate identification.

[15] The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating to the following areas of inquiry. Was the suspect known to the witness? What were the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? Was the sighting by the witness in circumstances of stress? [Citations omitted.]

[23] I am mindful that a caution on eyewitness evidence would require the trial judge to examine the evidence in his charge in greater detail and that this additional focus may not have benefitted the defence: R. v. Oswald, 2016 ONCA 147, at para. 5. For example, in this case, had the trial judge provided a caution on the eyewitness identification evidence, he may have drawn attention to the fact that the undercover officer’s opportunity to observe the person he testified was the appellant was not unexpected or fleeting, and that the officer’s identification of the appellant was bolstered by surrounding circumstantial evidence.

[24] Even though much of what the trial judge would have said would have favoured the Crown case, this is not a case where it is appropriate to infer that defence counsel refrained from objecting to the absence of a charge relating to identification evidence because of concerns that a charge on the dangers of identification evidence would not serve the appellant’s interest. As indicated, defence counsel sought to defend this case based on perceived deficiencies in the identification. In those circumstances, it was important for the trial judge to give a direction relating to the dangers of eyewitness identification so that the jury could make its decision with the benefit of judicial experience about the challenges that eyewitness identification evidence can present.

[25] While an eyewitness identification caution may not have benefitted the defence, it was an error by the trial judge not to provide such a caution in the circumstances of this case.

(2) The trial judge failed to caution the jury on the voice identification evidence

[26] Similar concerns apply to the trial judge’s failure to caution the jury on the voice identification evidence.

[27] The undercover officer’s evidence linking the appellant as the person who provided instructions to him over the phone with the person who sold him the drugs relied on voice recognition. The undercover officer had not met the appellant prior to this interaction and testified that the voice he recognized had no distinguishing accent or other identifying features.

[28] It is particularly important to caution juries about the frailties of voice identification evidence where there is no pre-existing relationship between the person speaking and the person purporting to identify their voice: see R. v. Brown, [2003] O.J. No. 4592 (C.A.) at para. 4; R. v. Portillo, [1999] O.J. No. 2435 (S.C.), at para. 36.

[29] The Crown relies on R. v. Deol, 2017 ONCA 221, 352 C.C.C. (3d) 343, at paras. 10-12, where this court confirmed a voice identification caution will not always be required. However, Deol involved three witnesses who were already familiar with the accused and his voice. This case involves a single voice identification witness with no prior contact with the appellant.

[30] While not as significant as the error in failing to provide a caution on the eyewitness identification evidence, in the circumstances of this case, a voice identification caution was warranted as well.

(3) The trial judge failed to caution the jury on circumstantial evidence

[31] The appellant argues that the trial judge also was obliged to provide a Villaroman caution in light of the Crown’s strong reliance on circumstantial evidence in the case.

[32] The Crown placed significant reliance on circumstantial evidence in relation to the possession charge against the appellant, particularly the items recovered from the taxi and the apartment. The trial judge made clear the difference between direct and circumstantial evidence in his charge, and the fact that the circumstantial evidence had to be proven beyond a reasonable doubt. These instructions, while important, do not take the place of a Villaroman instruction where there is real risk that the jury may infer guilt based on circumstantial inferences.

[33] The jury could not convict the appellant unless the only reasonable inference available on all of the evidence was that the drugs seized were his: see Villaroman, at paras. 30-42. Other plausible theories or other reasonable possibilities must also be applied to the evidence or the absence of evidence: see Villaroman, at para. 37; R. v. Anderson, 2020 ONCA 780, at para. 24. For example, in this case, some of the circumstantial evidence, such as the backpack allegedly belonging to the appellant, was challenged by his mother’s testimony.

[34] In my view, a Villaroman instruction was required in this case.

Does the curative proviso apply in this case?

[35] In light of my conclusion that the trial judge erred in failing to provide the cautions set out above, I must now consider whether the curative proviso in s. 686(1)(b)(iii) of the Criminal Code applies in this case.

[36] The curative proviso applies in two circumstances: first, where there is an error so harmless or minor that it could not have had any impact on the verdict; and second, where there are serious errors that would otherwise justify a new trial or an acquittal, but where the evidence against the accused was so overwhelming that a conviction was inevitable.

[37] The Crown has the burden of establishing that the curative proviso is applicable, and that the conviction should be upheld notwithstanding the legal error: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.

[38] The Crown argues that either branch of the curative proviso is applicable here, as the errors, if any, were minor, and as the evidence against the appellant was overwhelming. According to the Crown, the appellant was “enveloped in a web of circumstantial evidence that he could not escape”.

[39] In my view, it cannot be said that the cumulative impact of the errors in the charge to the jury were harmless or minor. The trial judge’s failure to instruct the jury on eyewitness, voice, and circumstantial evidence impacted virtually all the Crown’s case against the appellant. Therefore, the question is whether the curative proviso applies because the evidence against the appellant was so overwhelming that his guilt was inevitable.

[40] In R. v. Khan, 2001 SCC 86, [2001] 3 SCR 823, the Supreme Court elaborated on the situations where the curative proviso applies because the evidence is so overwhelming that a trier of fact would inevitably convict:

31. In addition to cases where only a minor error or an error with minor effects is committed, there is another class of situations in which s. 686(1)(b)(iii) may be applied. This was described in the case of R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916, where, after stating the rule that an accused is entitled to a new trial or an acquittal if errors of law are made, Sopinka J. wrote:

There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction.

Therefore, it is possible to apply the curative proviso even in cases where errors are not minor and cannot be said to have had only a minor effect on the trial, but only if it is clear that the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible. [Citations omitted.]

[41] In this case, the evidence of guilt was indeed overwhelming. The appellant conceded that he was at the scene of the drug deal and served as the greeter, and extensive evidence pointed to his involvement in the drug deals.

[42] Therefore, I find that the trial judge erred in failing to provide specific cautions in his charge to the jury as set out in these reasons, but that the curative proviso applies so that the conviction is upheld notwithstanding these errors.

[43] Accordingly, the appeal is dismissed.

Released: January 28, 2022 “David M. Paciocco J.A.”

“L. Sossin J.A.”

“I agree. David M. Paciocco J.A.”

“I agree. I.V.B. Nordheimer J.A.”