



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rockey, 2018 ONCA 646

DATE: 20180717

DOCKET: C64699

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Willimore Joseph Rockey

Appellant

David Willmore Rockey, acting in person

Erin Dann, duty counsel

Lorna Bolton, for the respondent

Heard and released orally: July 12, 2018

On appeal from the conviction entered on November 3, 2017
    and the sentence imposed on February 14, 2018 by Justice Patrick Hurley of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Mr. Rockey was convicted after a trial by jury of driving while
    disqualified and failing to stop for the police. He was sentenced to 2 ½ years
    in custody on each offence, to be served concurrently. He has effectively
    served 18 months of that sentence. He appeals both his conviction and his
    sentence.

[2]

Mr. Rockeys conviction appeal is based on the trial judges charge to
    the jury. He takes issue with three aspects of the charge.

[3]

First, he argues that the trial judge erred by failing to direct the
    jury that they cannot use Mr. Rockeys silence as evidence of his guilt. This
    ground of appeal relates to the testimony of two police officers and Mr.
    Rockeys partner, Ms. Theobald, that when the police arrived at Mr. Rockeys
    home shortly after the alleged offence, Mr. Rockey was on the phone with his
    lawyer and refused to come to the door.

[4]

In the circumstances the trial judge was not compelled to direct the
    jury on the prohibited use of silence. Defence counsel did not object to this
    evidence or to the jury charge relating to this event. It would appear that Defence
    counsel chose to use evidence about this event tactically to suggest that it
    tainted the officers identification evidence because they assumed Mr. Rockey
    was guilty because he had called his lawyer. We view the failure of counsel to
    request a direction about Mr. Rockeys silence as reflecting his recognition
    that this charge was not required in the circumstances. The focus of this event
    was clearly on the fact that Mr. Rockey had called a lawyer, not that he failed
    to speak to the police.

[5]

Second, Mr. Rockey argues that the trial judge erred in his direction
    relating to the proper use of prior inconsistent statements made by Ms.
    Theobald. We disagree. The trial judge gave a proper limiting direction on the
    use of prior inconsistent statements. It was not necessary for him to remind
    the jury of the prohibited use of prior inconsistent statements when, shortly
    after giving this limiting direction he reviewed Ms. Theobalds evidence in his
    charge. The jury charge was brief and the direction on the prohibited use of
    prior inconsistent statements was clear.

[6]

Third, Mr. Rockey urges that the trial judge erred by telling the jury
    that they may draw an adverse inference against alibi evidence offered by Ms.
    Theobald, because of her refusal to speak to the police. In her able
    submissions on Mr. Rockeys behalf, duty counsel submits that such a direction
    was inappropriate, given that Ms. Theobald explained during cross-examination
    that she would not speak to the police on the advice of counsel. The jury was
    not required to accept that evidence. It was appropriate for the trial judge to
    explain to the jury that they were permitted to consider Ms. Theobalds refusal
    to be interviewed in evaluating her alibi evidence. We would therefore reject
    Mr. Rockeys conviction appeal.

[7]

We would, however, grant him leave to appeal from sentence and allow his
    sentencing appeal. The trial judge did not take the principle of totality into
    account. He determined an appropriate sentence for each offence separately, and
    then added the sentences together. Although referred to during submissions, his
    analysis does not make reference to the principle of totality.

[8]

The trial judge did not give effect to evidence relating to the hardship
    that custody represents for Mr. Rockey, given that, for security reasons, he
    serves his time in segregated custody.

[9]

Finally, the trial judge failed to analyse the impact that should be
    given to evidence about Mr. Rockeys mental health and rehabilitative efforts.

[10]

We
    therefore set aside the sentence and substitute a sentence of time served.

M.L.
    Benotto J.A.

G.T.
    Trotter J.A.

David M.
    Paciocco J.A.


