James Lockyer was able to secure a new trial for his client from the Ontario Court of Appeal. But the veteran Toronto criminal defence lawyer wished the court had the power to acquit Miguel Chacon-Perez in his appeal of the second-degree murder conviction he received at a jury trial in 2018.
In R. v. Chacon-Perez 2022 ONCA 3, released on Jan. 7, the appellate court held that Ontario Superior Court Justice Michael McArthur erred when he denied the jury’s request for testimony from four witnesses.
The trial judge told the jury that no transcripts were available and that playing audio recordings of their evidence could take “some hours and maybe some days,” according to the summary in the Court of Appeal ruling.
“When a jury asks a question during their deliberations they are entitled to a timely, correct, and comprehensive answer. This is because, by their question, the jury has identified an area or subject about which they require assistance,” wrote now-former justice David Watt in his reasons, agreed to by Justices Lois Roberts and Benjamin Zarnett.
“Where a jury question requests a read back or replaying of evidence, they are entitled to receive it.”
Justice Watt said that Justice McArthur “should have invited the jury to be more specific about the portions of the evidence they wished to have read out or replayed. The trial judge’s failure to seek a more specific description of what was required meant that the jury got no assistance at all. To make matters worse, the nature of the response eliminated the prospect of any further questions from the jury.”
Jurors returned their verdict the next day, “almost 24 hours after they had asked their only question.”
Justice Watt noted the appellant’s argument that “the substance of the information required by the jury’s question aggravated the prejudice inherent in the trial judge’s failure to answer it.”
“The witnesses whose evidence the jury sought were those whose testimony related to the identity of the person who stabbed the deceased. This included Jaimini Panday, the defence witness who identified [Miguel] Chicas [a friend of Chacon-Perez since high school], not the appellant, as the killer. Identity was the only contested issue at trial. As a result, a new trial is required.”
It’s a small victory for Lockyer, who had hoped that the Court of Appeal had the power to consider whether Chacon-Perez’s conviction was “unsafe.”
James Lockyer, Lockyer Posner Craig
In his reasons, Justice Watt wrote that section 686(1) (a) (i) of the Criminal Code “permits a court of appeal to allow an appeal from conviction on the basis that the conviction is unreasonable or cannot be supported by the evidence adduced at trial. The question framed by s. 686(1) (a) (i) is whether the verdict is unreasonable on the evidence received at trial, not whether the verdict is unjustified.”
He reiterated that point when he wrote that “the issue that requires determination is whether the jury’s verdict was unreasonable … not whether the verdict is unjustified.”
It’s the last word that bothers Lockyer, founding partner of Lockyer Posner Craig.
“Essentially, it means that verdicts are upheld, even though an appeal court is concerned that the person convicted may well be innocent,” he explained.
In his reasons, Justice Watt cited R. v. Yebes [1987] 2 S.C.R. 168 in which the Supreme Court of Canada, relied on one of its previous rulings, Corbett v. R., [1975] 2 S.C.R. 275 that said an appeal court “must satisfy itself not only that there was evidence requiring [a] case to be submitted to the jury, but also that the weight of such evidence is not so weak that a verdict of guilty is unreasonable.”
“This cannot be taken to mean that the Court of Appeal is to substitute its opinion for that of the jury. The word of the enactment is ‘unreasonable,’ not ‘unjustified,’” the country’s high court held in Corbett.
Tomas Yebes was convicted in 1983 of second-degree murder in a case in which his two adopted sons were found dead a year earlier after a fire broke out in the family’s townhouse.
Following a ministerial review as to whether Yebes’s case involved a miscarriage of justice, federal Justice Minister David Lametti announced on Nov. 5, 2020, that he was exercising his greatest power under the Criminal Code and quashing the convictions and ordering a new trial for the Spanish-born father of two daughters.
The proceedings began, nine days later, in British Columbia’s Supreme Court, and lasted 20 minutes after the Crown called no evidence and the judge declared Yebes not guilty of both charges for which he was convicted 37 years earlier.
“We continue to rely on a case [Yebes] where the Supreme Court of Canada in 1987 upheld a wrongful conviction for murder,” said Lockyer. “Under it, you can’t quash a conviction unless it’s one that no reasonable jury, properly instructed, could have come to — and that’s a technical test.”
“The fact that evidence is highly suspect is irrelevant to the test. You could have the most lying individual, who gives evidence that forms a basis for the elements of the offence charged — and a conviction entered at trial stands, even if it’s an ‘unjustified’ verdict,” he said.
However, Lockyer was heartened by Lametti’s announcement last March that the federal government planned to establish an independent commission to address cases of wrongful conviction.
Harry LaForme, a former justice of the Ontario Court of Appeal, and Juanita Westmoreland-Traoré, a former Quebec Court judge, were named to lead public consultations on the creation of the Miscarriages of Justice Commission.
Lockyer participated in that process and highlighted to the two retired judges that appeal courts should be allowed to quash convictions — as they do in his native United Kingdom — when they have “a lurking doubt” or “a sense of unease” that the person found guilty was wrongly convicted.
Last December, LaForme and Westmoreland-Traoré released their recommendations.
Among the recommendations was that in addition to the existing grounds for appeal under Criminal Code s. 686, appeal courts should be allowed to quash convictions on the basis that they were “unsafe.”
The “technical test” for whether a verdict is “unreasonable,” as reflected in Yebes, “will not always achieve justice in all cases,” said Lockyer. “It’s not a test as to whether a case is a wrongful conviction.”
“If an appeal court upholds a conviction, it means someone was convicted with proper process. It doesn’t always mean the conviction is sound — and that’s the problem.”
He said that while the Criminal Code empowers appellate courts to allow an appeal of a case involving a miscarriage of justice, “it has not been interpreted by the Supreme Court of Canada and appeal courts to include cases where the appellate court has a sense of unease about the verdict.”
“This means that a wrongful conviction can be upheld in an appeal court, even though the court has a sense of unease. In my opinion, the law needs to be changed. If the law were otherwise, a number of Canada’s celebrated wrongful convictions, such as those involving David Milgaard, Donald Marshall and Tomas Yebes, could have been caught much earlier,” Lockyer said.
Lockyer said that in R. v. Biniaris 2000 SCC 15, a case in which he appeared on behalf of intervener AIDWYC, the Supreme Court said, in its ruling, that “the test set out in Yebes continues to be the binding test that appellate courts must apply in determining whether the verdict of the jury is unreasonable or cannot be supported by the evidence.”
He believes that Chacon-Perez had a strong defence. “There was a witness who didn’t know the deceased or the accused, and who testified that he saw a stabbing and that the person who did it was not Chacon-Perez. And no one said that they saw Chacon-Perez commit the murder,” as Lockyer argued.
“I wanted the Court of Appeal to reflect on whether it had a sense of unease about the conviction. But the court doesn’t have the power to do that.”
“I have always found that to be very troubling for our justice system,” he said. “I believe we need to adopt the proposal that the two retired judges have made to the justice minister that will allow appeal courts to quash ‘unsafe’ convictions.”
Crown counsel Roger Pinnock, who represented the respondent in the Chacon-Perez appeal, did not respond to a request for comment on the ruling.
Lockyer highlighted that Criminal Code s. 686.1 (a) (iii) allows a court of appeal to quash a conviction on any ground that was a miscarriage of justice, but “that has not been interpreted to include a potential wrongful conviction.”
He said that AIDWYC had three goals when it was formed nearly 30 years ago.
“We wanted the creation of a commission to investigate claims of wrongful convictions; a broadening of court of appeal powers to include a lurking doubt; and systemic changes made to prevent wrongful convictions in the future,” Lockyer explained.
“If you look at the jurisprudence over the past 20 years and the number of murder verdicts that have been found to be unreasonable, I’d be surprised if it’s as many as 10 across Canada.”
“How many wrongful convictions in murders have been discovered over that time? I don’t know — 20, 25 — most of which have been missed by appeal courts, including the Supreme Court of Canada.”