R. v. Geddes, 2011 MBCA 44

Citation: R. v. Geddes, 2011 MBCA 44 Date: 20110526 Docket: AR 10-30-07461 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Michel A. Monnin Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) E. J. Roitenberg ) for the Appellant Respondent ) ) S. A. Bond ) for the Respondent - and - ) ) Appeal heard: ) May 9, 2011 JOEL GARY JEFFREY GEDDES ) ) Judgment delivered: (Accused) Appellant ) May 26, 2011 MONNIN J.A. 1 This is an appeal from a conviction of trafficking in cocaine. 2 The trial evidence is uncomplicated.

It consisted of three witnesses: two police officers, one of whom made a purchase of cocaine from a person whom he identified in court as the accused, and the accused himself, who denied selling cocaine. 3 The issues raised by the appeal are, however, more complex than this simple recitation of the evidence might indicate. They deal with the sufficiency of the identification evidence in the context of an unreasonable verdict and the sufficiency of the judge’s reasons in convicting the accused. 4 The police were targeting a dial-a-dealer operation.

Arrangements were made for an undercover police officer to make a purchase that had been arranged by calling a telephone number that the police believed was connected to a dial-a-dealer operation run by the accused. When the undercover police officer and the drug dealer met at the pre-arranged location, the officer testified that he recognized the dealer (now the accused). He testified that he recognized him because he had dealt with him on at least two prior occasions when he was a general duty officer and had spot-checked him. In addition, he testified that he had previously seen a picture of the accused.

Finally, he provided a brief physical description of the accused. 5 The Crown also tendered evidence that the car used by the individual who sold the drugs to the undercover officer was owned by the accused’s girlfriend. However, there was also evidence that, on another occasion, in the same ongoing undercover operation, drugs had been purchased from a vendor using that same car and that the driver on that occasion had not been the accused. 6 In his reasons, the judge initially acknowledged the frailties of identification evidence and the benefit of distinctive descriptors of an individual.

He then went on to say: But there are certain aspects that I am left with that really, to me, turn the case. First of all, you have an officer whose job is organized crime, I assume that he is a trained officer with respect to knowing the players in the game, if I can put it that way. They said on this particular occasion, and the second officer also indicated this, they talked about the Geddes line and at that point this is the number and they wanted a number of calls to be made in order to try and ascertain who was using that particular line.

The first officer also indicated not only did he recognize the person and under cross-examination he explained why he recognized theperson, two occasions, one on the street and one on a stop. As I say, I assume organized crime people, and I cannot assume this, but theyknow the players in the sense of dealings and things along this line. He was surprised that the man that he knew as Geddes was there,this was Geddes’ line but he did not expect Geddes to be there, and even said to the effect that he was fairly fearful that Mr.

Geddesmight recognize him and, of course, that again would be up with respect to this particular buy. But he not only said he recognized himright away, and this is why, this makes sense to me, that if you recognize somebody you would not necessarily go back and -- thequestion that I would ask, if I was defence counsel, you went back to look at photos, is why are you looking at photos if you knew who itwas? I mean, you cannot have it both ways.

He indicated why he recognized the man, the occasions why he remembered him, the twooccasions, and he was surprised to see him there and somewhat fearful that he would be recognized. He also indicated the phone that he phoned, the Geddes’ line, the voice, he said in his evidence that he recognized the voice when hesaw the person that showed up there at the time.

So under, you know, very extensive cross-examination he was a hundred percent sureand he explained why he was a hundred percent sure and why he did not do other things that I think a person who was not a hundredpercent sure might have done but he did not in the circumstances of this case. 7 He then continued: And the final point which I, you know, from not putting too much on the docket, identification, but they get the licence number, not justthis officer, the other officer gets the licence number and low and behold it is, according to the accused, it is his girlfriend’s car.

So ifthat is not some -- is this a coincidence, that his girlfriend’s car is by two other people that are selling drugs or does it make a lot of sensethat the boyfriend of the girlfriend is in her car in the circumstances that are described. Does that confirm the identification by the policeofficer that, in fact, it was Geddes.

It seems, to me, to come to any other conclusion with respect to that kind of coincidence, linking thelicence to the girlfriend, to being a girlfriend of the accused seems, to me, beyond the realm of speculation or coincident [sic] or howeveryou want to put it. 8 Because of the fact that the accused called evidence by testifying on his own behalf, the judge had to deal with theprinciple set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

He did so in the following terms: I am of the view that on the basis of the officer’s testimony, on his description that he gave us, on the reasons why he identified theaccused with respect to the Geddes’ line, recognizing the voice and the car licence number linkage, that that evidence makes a strongcase for the Crown to such an extent that I have heard the testimony of Mr. Geddes, he was not terribly shaken but he did not remembercertain things, which I am not surprised at because this happened a long time ago, this is the dangers or the problems with not making thearrest right at the time.

But he does not remember certain aspects, all he does remember, it was not him. And that’s his testimony,however, I do not believe him and even if I do not believe him, I do not have a reasonable doubt, in the circumstances, and I am not left inany doubt with respect to the evidence presented by the Crown that they have proven the case beyond a reasonable doubt with respect tothe identification of the accused as being the person that sold the drug on the day in question.

I so find and I find him guilty. 9 On the issue of the identification evidence, the accused argues that the basis to accept the officer’s evidence of recognitionis flawed because there is little independent verification of that knowledge. He argues that the evidence is akin to that of opinionevidence, that the foundation on which to base that opinion is lacking, and that the judge erred in basing a conviction on it.

Finally, heargues that the judge further erred in relying on the girlfriend’s car as confirmatory evidence of identification of the accused. 10 The issue of the proper application of the W.(D.) principle and the sufficiency of reasons are, according to the accused,intertwined.

On the one hand, he argues that the judge reversed the W.(D.) onus and, on the other hand, he argues that the judge’sreasons fail to clearly set out why he was not left in a reasonable doubt about the Crown’s case. 11 The Crown argued that this was not a typical identification issue, but one of recognition, where the judge believed the policewitness and that this court should not question the judge’s credibility finding.

The Crown further argues on this point that there was noneed for independent evidence to confirm the identity of the accused because the officer recognized the accused from past dealings withhim. 12 As to the matter of the sufficiency of the judge’s reasons and his treatment of the W.(D.) principle, the Crown reminds thecourt that there is no requirement for perfection in judges’ reasons and that in the present case the reasons were sufficient.

The Crownargues that the judge properly dealt with the substantial issue before him, which was the identification evidence, and that he then wenton, in an admittedly unhelpful manner, to reject the accused’s evidence. It argues that the reasons comply with the dictates of theSupreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, where McLachlin C.J.C. wrote (at para. 53):

However, the Court in Sheppard [2002 SCC 26, [2002] 1 S.C.R. 869] also stated: “The appellate court is not given the power tointervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26). To justify appellate intervention, theCourt makes clear, there must be a functional failing in the reasons.

More precisely, the reasons, read in the context of the evidentiaryrecord and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable of permittingmeaningful appellate review. 13 Because the issue of the sufficiency of the reasons and the W.(D.) analysis by the judge will be dispositive of this appeal Imake little comment on the issue of identification save to say that the judge was in error when he relied on the evidence of thegirlfriend’s car to confirm the identification of the accused.

The inference that the accused was the driver simply because it was a carowned by his girlfriend was not an assumption or an inference that the judge could make in this case, in light of the fact that there wasevidence that the same car had in the past been driven by another individual while making a similar sale to another undercover officer. 14 I am, however, more troubled by the manner in which the judge conducted his W.(D.) analysis. The manner in which he didso, in my view, resulted in a shifting of the onus from the Crown to the accused. 15 What occurred here is similar to what occurred in R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5. That was a sexual assaultcase in which both the complainant and the accused testified. In conducting her W.(D.) analysis, the trial judge first considered theevidence of the complainant ([2005] M.J. No. 552 (Q.B.) (QL)). This court upheld the conviction (2006 MBCA 124, 208 Man.R. (2d)202), but it was set aside by the Supreme Court of Canada and a new trial ordered. In one set of reasons, Fish J. stated (at paras. 24-27): Unlike Justice Abella, I find little comfort in the trial judge’s allusion to the analytical framework recommended by R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742. And I find less comfort still in the explanation she gave for departing from that framework here.The trial judge felt bound to assess the credibility of the complainant before considering the evidence of the accused because, in herwords, the complainant’s credibility was “the cornerstone of the Crown’s case” (2005 CarswellMan 562, at para. 4).

It seems to me, on the contrary, that this is precisely the kind of case where a departure from W. (D.) is fraught with particular danger.The very purpose of adhering to the procedure set out in W. (D.) is to foreclose an inadvertent shifting of the burden of proof where thecomplainant and the accused have both testified and the outcome of the trial turns on their credibility as witnesses. That was the case here. And the risk of an inadvertent shift in the burden of proof materialized, as the reasons of the trial judge makeplain.

The trial judge accepted the evidence of the complainant without taking into account at all the contrary evidence of the appellant. Before even considering the appellant’s evidence, the trial judge had concluded not only that the complainant’s evidence was “credible”,but that it was in fact true: “I believe the complainant”, she stated (at para. 6). This conclusion, premature at best, amounted to a finding that the appellant was guilty as charged.

As a matter of law, the appellant waspresumed innocent; as a matter of fact, his fate had been sealed without any consideration at all of his evidence under oath at trial. 16 In the present case, the judge, in my view, erred when he proceeded to assess the accused’s evidence in light of the Crown’sevidence, as was done in C.L.Y.

In my view, this led, first, to an inadvertent shifting of the burden from the Crown to the accused and,second, to the judge’s failure to apply the principle of reasonable doubt to all of the evidence, including the accused’s. 17 Added to this problem is the fact that, in my view, taken as a whole, I consider the judge’s reasons to be insufficient. Forsuch a short and uncomplicated evidentiary basis, the analysis is unnecessarily protracted and tortuous, making it virtuallyincomprehensible.

There is also a complete lack of reasons for disbelieving the accused’s evidence other than his earlier conclusion thathe believed the evidence of the key police officer. 18 I am well aware that perfection is not the standard to be achieved in the providing of reasons, and also of the fact that thereasons are to be read as a whole with the evidence and submissions of counsel. One, however, must appreciate why reasons are to beprovided. The following comes from R.E.M. (at para. 11): … 1. Reasons tell the parties affected by the decision why the decision was made.

As Lord Denning remarked, on the desirability of givingreasons, “by so doing, [the judge] gives proof that he has heard and considered the evidence and arguments that have been adducedbefore him on each side: and also that he has not taken extraneous considerations into account”: The Road to Justice (1955), at p. 29. Inthis way, they attend to the dignity interest of the accused, an interest at the heart of post-World War II jurisprudence: M. Liston,“‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law”, in D.

Dyzenhaus,ed., The Unity of Public Law (2004), 113, at p. 121. No less important is the function of explaining to the Crown and to the victims ofcrime why a conviction was or was not entered.

2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus, it has been said that the main object of a judgment “is not only to do but to seem to do justice”: Lord Macmillan, “The Writing of Judgments” (1948), 26 Can. Bar Rev. 491, at p. 491. 3. Reasons permit effective appellate review.

A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations “from the lifeless transcript of evidence, with the increased risk of factual error”: M. Taggart, “Should Canadian judges be legally required to give reasoned decisions in civil cases” (1983), 33 U.T.L.J. 1, at p. 7.

Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case. Moreover, parties and lawyers rely on reasons in order to decide whether an appeal is warranted and, if so, on what grounds. 19 The reasons in this case do not meet the first and third criteria referred to above. 20 When the incorrect analysis under W.(D.) is coupled with the inadequacy of the reasons, the only conclusion available to this court is that the judge erred in convicting the accused. I would therefore allow the appeal.

That, however, is not to say that the verdict was unreasonable so as to warrant an acquittal. The proper relief in this appeal is to set aside the conviction and order a new trial. J.A. I agree: C.J.M. I agree: J.A.