



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
    judges incomplete and unhelpful response to the jurys question compromised
    trial fairness and may well have led to unsafe verdicts.  As a result, the
    convictions cannot stand.

[4]

It was the Crowns 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 appellants movements in his vehicle.

[6]

In this context, three aspects of the trial judges 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 jurys
    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 jurys 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 dont 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 judges earlier repeated
    instructions regarding the central issue in the case, and the legal
    consequences that would flow from the jurys 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 appellants 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.


