CITATION: R. v. Palmer, 2008 ONCA 797
DATE: 20081127
DOCKET: C46379
COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Keisha Palmer
Appellant
Brian Snell for the appellant
Maureen McGuire for the respondent
Heard and released orally: November 12, 2008
On appeal from the conviction entered by Justice B. J. Frazer of the Ontario Court of Justice dated May 30, 2006 and the sentence imposed by Justice Frazer dated November 17, 2006.
ENDORSEMENT
[1] The appellant was charged with possession of crack cocaine for the purpose of trafficking, possession of the proceeds of crime and possession of stolen property valued at less than $5,000. The appellant offered to plead guilty to simple possession of cocaine but that proposed plea was rejected by the Crown. Following a trial before Frazer J., the appellant was convicted on all counts and sentenced to a total of 15 months imprisonment. The appellant appeals her convictions and seeks leave to appeal sentence.
Background
[2] The appellant was initially arrested as the result of police surveillance on January 17, 2005. A passenger in the appellant's car got out of the car, was followed into a liquor store and was observed stealing four bottles of liquor. Both the passenger and the appellant were arrested after the passenger returned to the appellant's car and placed the liquor bottles, which were not in a bag, in the back seat. On searching the car and conducting an initial search of the appellant's person, police found a .7 gram piece of crack cocaine on the floor of the passenger side of the car, four bundles of cash totalling $1750 in the appellant's coat pocket and $230 in her wallet.
[3] Once at the police station, the appellant was searched again. Police found two more pieces of crack cocaine, weighing a total of 22.2 grams, secreted in the appellant's wig.
[4] At trial, the appellant claimed that she did not know that the passenger stole the liquor. She also claimed that the passenger handed her the cocaine because he was afraid of being arrested when the police stopped them. The appellant explained that she and the passenger had previously had a fling and that she just put the cocaine in her wig not knowing what else to do with it. The appellant also explained that her sister gave her $2000 on January 17, 2005 to pay bills and that she spent $20 on phone cards that day.
[5] During her examination-in-chief, the appellant's counsel asked her why she did not tell the officer who searched her that she had the drugs. The appellant responded that she did not think the police would believe her.
[6] The appellant's sister also testified at trial and produced a bank transaction record confirming a $2000 withdrawal.
[7] In rejecting the appellant's explanation for possessing the cocaine, the trial judge said, among other things, the following:
At the time of her arrest, Ms. Palmer attempted to physically dissuade Constable Wyrzykowska from searching her wig. Those actions may be seen as consistent with her explanation that she was simply hiding these drugs for [the passenger] having been handed them in a frantic moment of panic and placing them under her wig. Her actions in attempting to dissuade Constable Wyrzykowksa may be consistent with that explanation. But having chosen to speak to Constable Wyrzykowksa and Constable Wyrzykowska refers to a conversation with the accused in her evidence during the course of this search, there was no reference made to the explanation of her possession now offered by her in her evidence in this trial. If her explanation as to her possession was so simple and obvious to give, in her first opportunity to do so, she failed to offer it.
This is not a case of the Court being critical of someone not speaking. That of course is their inalienable right not to speak to police, but having chosen to do so, she failed to avail herself of the opportunity to offer an explanation which she now advances was so simple and obvious to give.
In my view, that failure to do so serves to diminish any weight to be given to her explanation now offered and her explanation is rejected based on these reasons. Having rejected her evidence, neither am I left in any doubt by it when considered together with the evidence as a whole.
Conviction Appeal
[8] The appellant raised two issues on her conviction appeal, but in oral argument acknowledged that the second ground would not constitute a free-standing ground of appeal. The appellant's main ground of appeal is that trial judge's reasons for rejecting her innocent explanation for possession of the drugs infringed her right to silence.
[9] We agree. Although the Crown argues, in effect, that defence counsel's (not Mr. Snell) examination-in-chief amounted to an implicit waiver of the appellant's right to silence, we cannot accept that submission. Defence counsel's examination did no more than invite an explanation from the appellant about why she did not advance an explanation to the police. It was open to the trial judge to reject the appellant’s explanation given at trial because it was not believable and to use that finding in assessing the appellant’s overall credibility. However, the trial judge went further and used the appellant's silence as a basis for finding her incredible. That he was not entitled to do.
[10] The Crown, very fairly, does not contend that the proviso should be applied in these circumstances. The appeal is therefore allowed, the convictions are set aside and a new trial is ordered.
“Janet Simmons J.A.”
“E. A. Cronk J.A.”
“David Watt J.A.”