



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2018 ONCA 1064

DATE: 20181220

DOCKET: C63267

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rohan Brown

Appellant

Breana Vandebeek, for the appellant

Kevin Wilson, for the respondent

Heard: December 19, 2018

On appeal from the conviction entered by Justice Susan E.
    Healey of the Superior Court of Justice on June 11, 2016.

REASONS FOR DECISION

OVERVIEW

[1]

Following a trial before judge and jury, the appellant, Rohan Brown, was
    convicted of four counts of possession of Schedule 1 substances for the purpose
    of trafficking, specifically: heroin; oxycodone; fentanyl; and cocaine.

[2]

The appellant appeals his conviction. He advances three grounds of
    appeal: (i) the Crowns closing address improperly urged the jury to shift the
    burden of proof onto the appellant; (ii) the trial judge erred in her
    instructions on reasonable doubt; and (iii) the trial judge erred in dismissing
    the defence application for a post-conviction mistrial based on a communication
    from a juror about a week after the conclusion of the trial.

[3]

At the hearing of the appeal, after hearing submissions only on the
    first two grounds of appeal, we allowed the appeal and directed a new trial,
    with reasons to follow. These are those reasons.

FACTS

[4]

The Barrie police had received information that a drug deal would occur
    in a certain area and the dealer would be operating a new Ford Fusion. The
    police located the suspected vehicle, followed it, and observed three suspected
    drug transactions.

[5]

At the final location, the police surrounded the Ford Fusion and
    arrested the three occupants in the vehicle. Andrew Simms was in the drivers
    seat; Glen Mason was in the rear drivers side passenger seat; and the
    appellant was sitting in the front passenger seat. The appellant owned the
    vehicle.

[6]

An orange bag was found on the passenger side floor near the appellants
    feet. The bag contained Percocets and fentanyl patches. A search of the car
    located a Ziploc bag hanging down from the underneath of the centre console. It
    contained crack cocaine and heroin.

[7]

The appellant testified that when the police surrounded the car, Simms
    yelled out cops, cops, cops and began pulling out items from the orange bag.
    Simms leaned over the appellant and began shoving items under the console. The
    appellant denied possessing the orange bag or drugs.

[8]

The sole issue at trial was whether the appellant had possession of the
    Schedule I drugs.

THE TRIAL

[9]

Two of the witnesses at trial were Officer Jackson, one of the officers
    involved in surrounding the car, and Mason, the occupant of the rear passenger
    seat.

[10]

During
    his closing to the jury, Crown counsel referred several times to the failure of
    the defence to ask either Officer Jackson or Mason whether they had seen Simms
    lean over and place the orange bag near the appellants feet or shove items
    from the bag under the console. For example, Crown counsel stated in respect of
    the defence theory:

You might ask yourself  what we have is a person who was in
    the back seat of the car who could have saw this happen. Why didnt you ask
    them?  You saw Officer Jackson approaching the car through a clear windshield
    with two headlights in there. He didnt see, or he wasnt asked about the
    driver lunging over, tucking things under. Two eye-witnesses  not asked about
    it. Not a single question on the defence, about this possibility happening.



Were talking about Mr. Mason, right here in the back seat.
    Theres two bucket seats. Why, why not ask him, Hey, when the police  what
    did the driver do, right?  [W]hat a great time to help out one for his friend
    here. Oh, I saw that guy, yeah, he planted it, not, not the  I, I saw him
    plant it. He didnt have any evidence. And that theory wasnt even shared
    with him and I dont understand why.



[H]ow is Officer Jackson, the first officer whos coming to the
    front of the car with the headlights, not in a position to exactly see that
    before they get to the door? Thats exactly the kind of thing he would have
    seen and been alerted to, right? Again, why wasnt he asked about that stuff?
    So when you look at all these improbabilities in this story, combined with the
    record and issues about truthfulness, I ask you not to put any weight on Mr.
    Browns story.

[11]

In
    her charge to the jury on reasonable doubt, the trial judge adopted several
    portions of the standard charge found in
Watts Manual of Criminal Jury
    Instructions, Second Edition
. However, the opening portions of her charge
    departed from the standard instruction. The trial judge instructed the jury as
    follows:

A reasonable doubt is a real doubt that logically arises from
    the evidence, or the lack of evidence. It is a doubt based on reason and common
    sense after considering all of the evidence as a whole. It may be a doubt
    created by an inference or conclusion that you have drawn from the facts as you
    find them, provided that that inference or conclusion is not a speculation or a
    guess,
but a much stronger conclusion arising from the
    proven facts and based on the evidence alone
. [emphasis added]



ANALYSIS

[12]

The
    appellant submits the charge is legally incorrect by requiring that inferences
    or conclusions that raise a reasonable doubt be premised on proven facts. As
    well, the effect of the Crowns closing was to shift the burden of proof onto
    the defence. Combined, the closing and charge on reasonable doubt shifted the
    burden onto the appellant and encouraged the jury to engage in speculation.

[13]

The
    respondent acknowledges that Crown counsel at trial should not have asked the
    jury why defence counsel had not examined Mason and Jackson about Simms
    movements. By so doing, he created a risk that the jury would engage in
    improper speculation or would reverse the onus of proof. As well, the
    respondent acknowledges that trial judges should not instruct juries that
    reasonable doubt must be based on proven facts. However, the respondent submits
    that in neither instance was the appellant prejudiced, especially when the
    charge is read as a whole.

[14]

We
    do not agree.

[15]

If
    the jury does not clearly understand the basic and fundamental concept of the
    burden of proof, including the meaning of the term reasonable doubt, no
    matter how exemplary the directions to the jury may be in every other respect,
    if they are wanting in this aspect the trial must be lacking in fairness:
R.
    v. Lifchus
, [1997] 3 S.C.R. 320, at para. 14. In the present case, the
    charge on reasonable doubt contained legal error. It was incorrect for the
    trial judge to link the creation of reasonable doubt with the need for proven
    facts. Reasonable doubt is logically linked not only to the evidence but also
    the absence of evidence:
Lifchus
, at para. 36.

[16]

Although
    elsewhere in her charge the trial judge stated that determining whether
    reasonable doubt existed required a consideration of all of the evidence or
    the lack of evidence and instructed the jury that the appellant did not have
    to prove anything, in the circumstances of this case those references did not
    overcome the prejudicial effect of the incorrect portion of the trial judges
    charge on reasonable doubt.

[17]

As
    acknowledged by the respondent, the Crowns closing to the jury created the
    risk of reversing the burden of proof by inviting the jury to speculate about
    why the defence had not posed questions to Officer Jackson and Mason about
    Simms movements in the car. That problem was compounded by the trial judge
    repeating that position in her review of the Crowns case when she stated:
    Also consider Officer Jackson did not testify that he saw bags or any other
    items being tossed around the front of the vehicle.

[18]

The
    jury could well have been left with the impression that the appellant had some
    obligation to prove that Officer Jackson or Mason saw Simms place the orange
    bag at the appellants feet and stuff a bag into the console. Coupled with the
    suggestion in the charge that conclusions on proven facts were required to raise
    a reasonable doubt, a serious risk existed that the jury might think the
    appellants failure to prove those facts through Officer Jackson and Mason
    demonstrated that no reasonable doubt existed about his guilt. Accordingly, in
    the circumstances of this case, even when the charge is read as a whole, we are
    of the view that it gives rise to the reasonable likelihood that the jury could
    well have been under a misapprehension as to the correct burden and standard of
    proof:
Lifchus
, at para. 41.

DISPOSITION

[19]

Accordingly,
    the appeal is allowed and a new trial directed.

G.
    Pardu J.A.
David Brown J.A.
Grant Huscroft J.A.


