



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Torcaso, 2020 ONCA 100

DATE: 20200210

DOCKET: C64170 & C66470

Rouleau, Benotto and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zachary Torcaso and Dereck
    Maione

Appellants

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 judges inadvertent delay in discovering the
    letter, the manner in which the inquiry was conducted and the treatment of the
    jurors 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 judges 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 victims surcharge. The
    appeals are otherwise dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.


