COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. KAMIL ALKHOURI (Appellant)
BEFORE: DOHERTY, ABELLA and MOLDAVER JJ.A.
COUNSEL: Daniel Lawson
for the appellant
Catherine Galligan
for the respondent
HEARD: July 14, 2000
On appeal from the conviction imposed by Ouellette J., sitting
with a jury, dated June 15, 1998.
E N D O R S E M E N T
1The appellant was charged with trafficking in cocaine and
conspiracy to traffick in cocaine. He acknowledged that he
handed a bag containing a substantial amount of cocaine to a
person who then turned it over to an undercover officer. The
appellant claimed, however, that he did not know that the bag
contained cocaine. There was some evidence independent of the
appellant’s own testimony that supported his position. There was
also considerable evidence capable of supporting the inference
that he did know that the bag contained cocaine.
2The appellant’s lifestyle and his financial means took on
some significance at trial. The defence position was described
by the trial judge in the following terms:
Mr. Alkhouri as you have heard from the evidence has
no criminal record and according to the defense gave
believable evidence. He leads a modest domestic life
without any of the trappings which are laid to you by
the evidence of the expert police officer who gave
evidence on the trappings of a normal trafficker.
3The trial judge put the Crown’s position in this way:
The circumstantial evidence, according to the Crown,
portrays him to a person living beyond his means and
in possession of monies inconsistent with a person in
need of social assistance. It is also suggestive of
international travel, contact and communication. The
accused is streetwise and not stupid, according to the
Crown.
4Shortly after the jury retired, they sent the following
question to the trial judge:
Is the defence attorney appointed by the court?
5The trial judge, understandably, described this as a “most
unusual question.” Even if the nature of counsel’s retainer
could be admissible for some reason in some case, there had been
no evidence of the nature of his retainer in this case and no one
had suggested, before the jury asked this question, that the
nature of counsel’s retainer had any relevance.
6Counsel for the appellant at trial submitted that the jury
should be told that the answer to their question was irrelevant.
The trial judge replied “I’ve got to answer the question.” After
further submissions in which counsel for the appellant and
counsel for the Crown took the position that the jury should not
be told whether the appellant’s lawyer was appointed by the
court, the trial judge answered the question as follows:
Now the answer to that is no, but I am going to say
this to you. There is no evidence in that regard.
You should not be considering it. It is completely
irrelevant to anything that you should be looking at
to determine the guilt or innocence of Mr. Alkhouri.
Just get it out of your mind. You have to deal with
the issues as I have related them to you and the
evidence as you have heard – nothing else. Hopefully
that will help you out.
7The jury returned several hours after receiving the answer
to this question with a guilty verdict.
8On appeal, counsel for the appellant argued, and the Crown
conceded, that the trial judge should not have told the jury that
the appellant’s lawyer was not appointed by the court, but should
have told them that the nature of counsel’s retainer was totally
irrelevant. We agree. The trial judge should have told the jury
first, that there was no evidence of the nature of his
appointment, second, that it was totally irrelevant and third,
that they should not speculate as to the nature of his
appointment.
9Given the competing positions advanced at trial, we can
think of only one reason why the jury would be interested in the
nature of counsel’s appointment. It must have been that the
jury, or at least one of them, thought that if the lawyer was
court-appointed this offered some support for the appellant’s
claim that his means were very limited. On the other hand, if
the lawyer was not court-appointed, at least one of the jury must
have thought that this would indicate that the appellant had the
money needed to retain an out-of-town lawyer for a two-week trial
and, as the Crown had argued, had financial resources well beyond
those available from legitimate sources.* By answering the
question “no”, the trial judge may well have enhanced the Crown’s
position in respect of the appellant’s financial means.
10Unfortunately, the trial judge’s response gave the jury
irrelevant and potentially prejudicial information. It did so at
a time when the jury had already commenced their deliberations.
Given the theories advanced at trial, we cannot say that having
been given that information by the trial judge, the jury would
have then ignored it as they were instructed to do by the trial
judge. We are satisfied that the interjection of potentially
prejudicial information at this important point in the trial
process impaired the appearance of the fairness of the trial.
The curative proviso cannot be applied. The appeal is allowed,
the conviction is quashed and a new trial is ordered.
“Doherty J.A.”
“R.S. Abella J.A.”
“M.J. Moldaver J.A.”
- The jury was aware that appellant’s counsel was from Toronto.
The trial was in Windsor.