



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Edwards, 2022 ONCA 78

DATE: 20220128

DOCKET: C65250

Paciocco, Nordheimer and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kawayne Edwards

Appellant

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 appellants 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 officers
    eyewitness testimony, the prosecution presented a range of circumstantial
    evidence, including items recovered from the taxi (such as the appellants
    phone, which had the undercover officers 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 appellants 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
Watts
    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 traffickers identity and whether the appellant trafficked crack cocaine
    to the undercover officer on the dates in question. He also summarized the
    defences 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
    appellants arrest.

[13]

Neither the defence nor the Crown sought any
    significant amendment to the trial judges 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 judges 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 officers
    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 appellants 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 judges 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 officers
    opportunity to observe the person he testified was the appellant was not
    unexpected or fleeting, and that the officers 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 appellants
    interest. As indicated, defence counsel sought to defend this case based on
    percevied 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 judges
    failure to caution the jury on the voice identification evidence.

[27]

The undercover officers 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 Crowns
    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 mothers 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 judges failure to instruct the jury on eyewitness, voice, and
    circumstantial evidence impacted virtually all the Crowns 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 CanLII 103 (SCC), [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.


