DATE: 20020313 DOCKET: C31566
COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., ROSENBERG AND MACPHERSON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Moiz Rahman, for the respondent
Respondent
- and -
WANDA TSE
Peter Bawden, for the appellant
Appellant
Heard: December 18, 2001
On appeal from the convictions by Justice Donald Cameron, sitting with a jury, on December 18, 1998.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The appellant, Wanda Tse (“Tse”), was charged with two counts of trafficking in a narcotic, one count of possession of heroin for the purpose of trafficking, one count of possession, and one count of conspiracy to traffic in a narcotic. At the jury trial, presided over by D. Cameron J., the trial judge dismissed on a directed verdict the possession and possession for the purpose of trafficking charges at the conclusion of the Crown’s case. He did so on the basis that there was insufficient evidence relating to the knowledge component of a possession charge to force Tse to respond to these charges.
[2] Tse was convicted of the conspiracy and one of the trafficking counts in the indictment. She was acquitted of the other trafficking count.
[3] Tse appeals her convictions. The principal issue raised by her appeal is whether the trial judge erred in his jury charge by instructing the jury that some of the evidence about the possession and possession for the purpose of trafficking charges could nevertheless be considered by the jury in its deliberations on the other counts in the indictment. Specifically, did the trial judge’s charge on this issue run afoul of the decision of the Supreme Court of Canada in R. v. Grdic (1985), 19 C.C.C. (3d) 289 ?
B. FACTS
[4] The appellant and her boyfriend, the co-accused Wai Hung Lau (“Lau”), were charged with unlawfully conspiring with Cho Feng Wu (“Jay”) and with a person or persons unknown, to traffic in heroin between October 24, 1996 and February 6, 1997. The appellant was also charged with trafficking in heroin on two occasions, November 11 and December 17, 1996. Lau was charged with trafficking in heroin on November 28, 1996. Finally, the appellant was charged with possession and possession for the purpose of trafficking on February 6, 1997.
[5] The November 11, 1996 drug transaction, which led to one trafficking charge against Tse, involved the purchase of heroin by an undercover officer from a man who identified himself as “Jay” and who the police believe was the unindicted co-conspirator Wu. Tse’s role was to deliver the heroin to Jay in a car. The undercover officer and a second officer who was conducting surveillance at the time both identified Tse as the person who delivered the heroin to Jay. The jury acquitted Tse of this charge.
[6] The December 17, 1996 drug transaction, which led to the other trafficking charge against Tse, involved the purchase of heroin by the same undercover officer from Jay. On this occasion, Jay went into a Dominion Store and returned with the heroin. An undercover officer saw Jay and a woman he identified as Tse exchange a small package and money in the aisles of the Dominion Store. He was about 10 to 15 feet from Jay and Tse at the time of the exchange. A second officer identified Tse as a woman he followed for about two hours, including to the plaza where the Dominion Store was located, on the evening in question. A third officer stopped the car being driven by the woman under surveillance shortly after the exchange in the Dominion Store. The driver identified herself as Wanda Tse. The jury found Tse guilty of the trafficking charge relating to the transaction on December 17, 1996.
[7] On February 6, 1997, Tse and Lau were arrested as they were leaving a house at 714 Ossington Street. When she was arrested, Tse was carrying a diaper bag. Inside the bag was a stuffed bear with a zippered compartment. The police found $440 in this compartment.
[8] The house at 714 Ossington Street was the residence of Jonathan Lung, Tse’s ex-husband. Tse admitted in her testimony that she came to this house often with her small daughter so that her ex-husband could maintain a close relationship with his daughter. Indeed, Tse would stay overnight at this house. In 1996, Lau moved into the house and Tse became romantically involved with him. She began to sleep in his bedroom.
[9] On February 6, 1997, the house at 714 Ossington Street was searched. A small quantity of heroin, wrapped in foil, was found in the master bedroom on the second floor. In the dining room area, the police found a small plastic container and two clear plastic baggies. The baggies contained heroin. In the same plastic container, the police found a partially filled bottle of dextrose, a pager and an electronic scale. At the trial, there was expert evidence that these items were commonly used in the heroin trafficking trade.
[10] The possession and possession for the purpose of trafficking charges against Tse related to the heroin found inside the house at 714 Ossington Street on February 6, 1997. At the trial, following the close of the Crown’s case, the trial judge directed the jury to acquit Tse of these charges.
[11] Later the same day, the jury sent this question to the trial judge:
Why were the charges relating to February the 6th eliminated? If the jury is supposed to judge the case, why are these charges suddenly off the table?
[12] The trial judge responded in this fashion:
I think I explained to you this morning when you came in that, as a matter of law, I decided there was insufficient evidence to justify forcing Wanda Tse to reply to the charges of possession of a narcotic or possession of a narcotic for the purpose of trafficking with respect to the narcotics found in the house.
And possession has a legal and technical meaning, but it could have been any number of people who possessed that drug, and it is not clear that there is sufficient evidence there to force Wanda Tse to reply to them. And it was for that reason that I withdrew those charges.
[13] However, the trial judge permitted the Crown, over the objection of Tse’s counsel, to ask questions in her cross-examination of Tse about Tse’s knowledge of the heroin and paraphernalia found inside the house at 714 Ossington Street. The matter was the subject of a fairly lengthy exchange between the trial judge and defence counsel, Mr. Bawden. The flavour of the exchange, and the trial judge’s ruling, are reflected in these passages:
Mr. Bawden: The Crown might otherwise have been inclined to cross-examine Miss Tse as to her knowledge of the existence of the heroin either in the bedroom or in the dining room.
And my position would be, inasmuch as she has been discharged on the basis that the jury could not reasonably find that she was in possession of either, then it would be an unfair line of cross-examination.
The Court: No, not on a charge of conspiracy. She’s still facing a charge of conspiracy. She’s still facing two charges of trafficking.
Mr. Bawden: Well, at best then, I would submit that . . . . .
The Court: I didn’t say she didn’t possess it. I am saying that the Crown has not presented sufficient evidence for her to be obliged to respond to the charge.
But, if she goes into the witness box, I think it’s perfectly proper for the Crown to examine her on that issue either with respect to the substantive offence of conspiracy, the substantive offence of trafficking on the 11th of November or the 17th of December, or with respect to credibility.
Mr. Bawden: Once you have concluded though that she should be discharged on those two counts, it constitutes a finding that there is no prima facie case against her, that she’s . . . . .
The Court: As of this moment.
Mr. Bawden: Right. How then would the Crown be justified in suggesting to her: “Wanda Tse, those drugs were yours and you knew that they were there all along.”, when the trial judge has that very morning made a finding that the jury could not reasonably make that finding.
The Court: Maybe the Crown is looking for an admission from Wanda Tse. If Wanda Tse says, “Yes, I admit I owned those drugs. They were mine. Nobody else knew about them. They were mine.” Well, it’s too late for the Crown now.
Mr. Bawden: True.
The Court: Too late on the possession charge. But the question is totally relevant to the issue of did they agree in some way with one other . . . one or more other people to traffic in heroin . . . . .
Mr. Bawden: Right.
The Court: . . . . . or did they, on the dates charged, traffic? And surely it’s relevant to either of those to determine who controlled that stuff, particularly the stuff downstairs in the dining room.
[14] The appellant testified at the trial. She admitted to visiting the house at 714 Ossington Street on many occasions, to leaving some of her clothing there, and to sleeping with Lau in the master bedroom about once a week. On cross-examination, Tse denied that the heroin and paraphernalia found inside the house belonged to her. She also said that she was unaware that these items were inside the house and that she did not know to whom they belonged.
[15] The main issue on the four counts that proceeded to the jury was identity. That is because another young Oriental woman, Amy Moy, testified that she was the person who worked with Jay and distributed heroin to the undercover officer on the dates in question. She also testified that on the second occasion she had been stopped driving Tse’s car and with Tse’s driver’s licence and identified herself to the police as “Wanda Tse”.
[16] The jury brought back guilty verdicts on the conspiracy to traffic charge and on the trafficking charge relating to the Dominion Store transaction. The jury acquitted the appellant on the trafficking charge relating to the delivery of heroin by a woman in a car to Jay in a parking lot. The probable reason for the different verdicts was the fact that the identification evidence relating to the woman in the Dominion Store (close range, clear view, coupled with surveillance evidence before and after the transaction, including stopping the car and obtaining the driver’s admission that she was Wanda Tse) was much stronger than the quick views the two officers had of the woman involved in the parking lot transaction.
[17] The appellant appeals against the convictions.
C. ISSUES
[18] The appeal raises three issues, all relating to the trial judge’s charge to the jury:
(1) Did the trial judge err by instructing the jury that it could use the facts relating to the counts that were the subject of directed verdicts as part of the evidence to be considered in relation to the other charges?
(2) Did the trial judge err in his instructions relating to the “in furtherance” component of statements made in furtherance of the conspiracy?
(3) Did the trial judge err by referring in his jury charge to $440 found inside a stuffed bear when the appellant was arrested?
D. ANALYSIS
(1) Effect of directed verdict
[19] In his jury charge, the trial judge dealt separately with the conspiracy and trafficking counts in the indictment. On the conspiracy count, he reviewed in some detail many of the events that had taken place between October 24, 1996 and February 6, 1997. He made a single reference to the heroin that had been found inside the house at 714 Ossington Street on February 6, 1997, the day Tse was arrested just outside the house. After describing the arrest, the trial judge continued:
Three hours later, the police, in execution of a search warrant, found a small amount of heroin and tinfoil on top of a bookcase in Lau’s bedroom. At the same time, another officer found a plastic container on a hutch in the dining room which contained two plastic baggies which in turn contained lumps of heroin. The combined weights of the two finds of heroin was 12.76 grams. The police found in or beside the plastic container a half-used bottle of dextrose, tinfoil, and electronic scales. Nearby was a pager. Lung, Lau and Tse denied ownership or knowledge of the heroin.
[20] The appellant contends that the trial judge erred by mentioning the drugs found inside the house because he had already directed a verdict of acquittal with respect to the two counts in the indictment relating to those drugs. The appellant submits that this component of the trial judge’s charge was contrary to the decision of the Supreme Court of Canada in Grdic, supra.
[21] In Grdic, the appellant Grdic was tried on charges that on June 23, 1979 he drove while impaired and with a blood alcohol level over .08. A police constable testified that he had stopped Grdic at approximately 6:30 p.m. A certificate of analysis was introduced to prove that Grdic had provided breath samples at 7:30 and 7:50 p.m. and that the samples indicated a blood alcohol level of .17.
[22] Grdic testified that he had been stopped for impaired driving on June 23, but he denied that he was stopped at the time given by the constable. His testimony was that he was stopped at approximately noon, gave samples of his breath at that time and was definitely home by 5:00 p.m. Grdic’s daughter gave evidence corroborating his testimony. The Crown did not attempt to call anyone in rebuttal. The trial judge dismissed the charges.
[23] In June 1980, the appellant was tried on a charge that he had perjured himself in his testimony at the previous trial. At the perjury trial, the Crown called the same police constable who had testified at the original trial and other witnesses, who had not testified at the original trial, to corroborate the constable’s version of the time at which Grdic had been stopped. The trial judge acquitted Grdic before he was required to elect whether to call evidence on the basis of issue estoppel. The British Columbia Court of Appeal allowed the appeal from this decision and ordered a new trial.
[24] The Supreme Court of Canada allowed the appeal from the decision of the British Columbia Court of Appeal and restored the acquittal. Speaking for a majority of the court, Lamer J. said, at pp. 293-94:
There are not different kinds of acquittal and, on that point, I share the view that “As a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence”: see Martin L. Friedland, Double Jeopardy (1969), Clarendon Press, Oxford, p. 129, also Chitty, i, 648; R. v. Plummer, [1902] 2 K.B. 339 at 349. To reach behind the acquittal, to qualify it, is, in effect, to introduce the verdict of “not proven”, which is not, has never been and should not be part of our law.
If the trial judge did not believe the accused, as he was entitled to, and his remarks might be construed as suggesting that he in fact did not believe the accused, he should have entered a conviction. Not having done so, Grdic is entitled to the full benefit of his acquittal.
However, this does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from relitigating all or any of the issues raised in the first trial. But it does mean that any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused. . . . [Emphasis added.]
[25] I do not agree that Grdic required the trial judge in the present case to make no mention of the drugs inside the house at 714 Ossington Street. An important feature of Grdic is that there were two trials, with the second being in effect an attempt to re-litigate the first. However, that is not the situation in this appeal. The trial in the present case involved two accused and a multi-count indictment. The evidence concerning those counts overlapped to some extent. The fact that the evidence could not sustain a conviction on some counts against the appellant does not mean that it was irrelevant on other counts relating to the appellant and her co-accused.
[26] The house at 714 Ossington Street was central to the conspiracy counts involving Tse and Lau. There was a good deal of surveillance evidence about activities at the house over the course of many months. It would have been strange and illogical for the jury to hear all of the evidence relating to that location until the day the accused were arrested outside the house, but hear nothing about what was found inside the house when the police conducted a lawful search on the same day.
[27] In my view, the inapplicability of Grdic in a single proceeding where there is overlapping evidence relating to multiple counts was clearly articulated and explained by Cory J., for a unanimous Supreme Court of Canada, in R. v. Arp (1998), 129 C.C.C. (3d) 321 at 355-56:
. . . I cannot accept the proposition that the principle set out in Grdic, supra, applies to verdicts rendered by the same trier of fact in respect of charges tried together in a single proceeding. There is nothing unfair or logically irreconcilable about a jury having reasonable doubt whether the accused committed an act while also finding that it is likely that he committed it. There may very well be good reasons to exclude similar fact evidence underlying a prior acquittal in a subsequent proceeding. However, the principle has no application where the alleged similar acts are the subject of a multi-count indictment. [Emphasis added.]
[28] Similar reasoning is found in this court’s decision in R. v. Gassyt (1998), 127 C.C.C.(3d) 546. In that case, two accused were charged with three counts of conspiracy to commit murder. At the close of the Crown’s case, the trial judge directed a verdict of acquittal on two of the counts. There was a good deal of overlapping evidence relating to the three counts. Charron J.A. said, at pp. 562-63:
I do not think it can seriously be maintained that any of the evidence which directly pertained to counts one and three was inadmissible on count two. Had the trial proceeded from the beginning on count two alone, I would expect that much the same evidence would have been called. Most of it was essential to provide the context for the evidence of the second meeting which, everyone agrees, forms the core of the evidence on count two.
[29] In my view, this reasoning applies in the present case. A good deal of the Crown case on the conspiracy charges against Tse and Lau centred on activities at the house at 714 Ossington Street. In her own testimony, Tse admitted and explained her regular visits to the house. The evidence of what the police found inside the house, pursuant to a lawful search, on the day Tse and Lau were arrested just outside the house was relevant evidence on the conspiracy charge. This becomes particularly clear if one removes from the analysis, as Charron J.A. suggested in Gassyt, the existence of the other charges. Applying her analysis to the present case, if Tse had not been charged with offences in relation to the drugs found inside the house on February 6, 1997, there could be no challenge to the use of that evidence at a trial on a single count of conspiracy to traffic. The existence of the other charges, including the verdicts of acquittal, does not change the situation; the evidence is still relevant and admissible on the conspiracy counts in the indictment.
[30] The appellant advances an alternative argument on this issue, namely, that the trial judge should have given a limiting instruction about how the evidence could be used. It is true that such an instruction has been suggested: see Arp at p. 356 and Gassyt at p. 563. However, I do not think that the absence of such an instruction is fatal in this case. I reach this conclusion for three reasons.
[31] First, the impugned portion of the trial judge’s charge was an exceedingly small component of the evidence reviewed by the trial judge on the conspiracy count. It was also descriptive in nature and mentioned Lau by name, not Tse. Second, unlike in Gassyt, there was not an almost complete overlap in the evidence between the different charges. There was no realistic possibility that the jury would seize upon this isolated paragraph, in which Tse is not mentioned, and embark on a forbidden line of reasoning. Third, trial counsel did not object to the trial judge’s charge on this issue: see Gassyt at p. 564.
(2) The “in furtherance” instruction
[32] The appellant contends that the trial judge erred in failing to direct the jury with respect to what constitutes a statement made in furtherance of the conspiracy.
[33] I disagree. The trial judge instructed the jury that it could only “consider J.’s statements made to Mancuso in furtherance of the conspiracy, that is, statements made to promote or bring about the object of the conspiracy to traffic in heroin”. [Emphasis added.] In my view, this instruction adequately conveyed the meaning of the “in furtherance” requirement. Moreover, defence counsel at trial did not object to any perceived deficiency in this instruction.
(3) The money in the stuffed bear
[34] In his charge to the jury, the trial judge said:
When Lau and Tse were arrested, they were in the Honda on Crawford Street having just left 714 Ossington. Tse’s seventeen-month old daughter was with them. Tse had a purse. She also had a separate carry-all bag with things for the child. In it was a stuffed bear which contained $440 in a zippered compartment.
[35] The appellant contends that in this passage the trial judge invited the jury to speculate as to the source of the money and the reasons for carrying it inside the stuffed animal.
[36] I disagree. The entire passage is descriptive of the circumstances relating to Tse’s arrest. I see no invitation about anything to the jury in this passage. Moreover, I note that Detective Chase, the drug squad officer who seized the money, testified that there was no reason to believe that the money came from the commission of any offence. Finally, again I observe that defence counsel at trial did not object to this component of the jury charge.
E. DISPOSITION
[37] I would dismiss the appeal.
RELEASED: March 13, 2002
“J. C. MacPherson J.A.”
“I agree R. Roy McMurtry C.J.O.”
“I agree M. Rosenberg J.A.”