COURT OF APPEAL FOR ONTARIO
Sharpe, Watt and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Abdul Matin Quazi
Appellant
Anida Chiodo, for the appellant
Howard Piafsky, for the respondent
Heard and released orally: January 30, 2014
On appeal from the convictions entered on March 2, 2012 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellant was convicted by a jury of importing opium and possession of opium for the purpose of trafficking. The circumstances giving rise to the charges may be stated briefly.
2The appellant was the consignee of a shipment of ten hydraulic jacks that originated in Iran. Since the shipment originated in a source country, investigators took some steps to carefully examine the cargo. Inside the jacks, police found about 114 pounds of opium valued at more than $1,000,000. The jacks were repackaged in their original shipping containers after the opium had been extracted.
3The appellant appeared at the airport to pick up the shipment. He paid the applicable fees, loaded the several crates into his vehicle and drove back to his home in London, Ontario. He unloaded the crates on the front porch of his friend’s ground floor unit in the same apartment building in which he (the appellant) lived. The shipment remained there covered but untouched, unguarded, unsecured and, it would appear, completely accessible to anyone walking past the building.
4The appellant was under constant physical surveillance for a week after he picked up the crates at the airport. An authorization was granted to intercept his private communications. He displayed no counter-surveillance tendencies, made no effort to pick up, move, or check on the crates. Nor did anyone else. On arrest, he provided a lengthy, exculpatory statement in which he denied any knowledge of the contraband secreted in the hydraulic jacks.
5On his appeal from conviction, the appellant raised several grounds of appeal. Among other errors, he alleged that the trial judge:
i. erred in permitting a police officer, qualified as an expert on the subjects of drug importation, jargon, methods of packaging, concealment and distribution, to proffer an opinion about the meaning of the word “things” in an intercepted communication - an opinion that went beyond his entitlement and usurped the function of the trier of fact; and
ii. erred in failing to provide a sufficiently detailed instruction on the standard of proof in this case that consisted entirely of circumstantial evidence.
6Counsel for the respondent acknowledges errors in both of these grounds of appeal and concedes that their cumulative effect, in the circumstances of this case, requires a new trial. We agree. We note that the trial judge did not provide any mid-trial or final instructions to the jury to attempt to eradicate or, at least, to contain any prejudice caused by the witness’ inadmissible evidence.
7We also observe that the trial judge permitted the jury to hear the opinion of another police officer who characterized the appellant’s demeanour during his police interview as indicative of guilt. Such an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant’s trial.
8For the appellant, Ms. Chiodo advanced argument in support of her further claim that the jury’s verdict was unreasonable. We do not agree.
9We note that among other features of this case, trial counsel for the appellant (who was not Ms. Chiodo) did not bring an application for a directed verdict of acquittal at the conclusion of the case for the Crown. Further, we point out, the appellant did not testify at trial - a factor we are entitled to consider when a claim is made that the verdict was unreasonable: R. v. Corbett (1973), 1973 199 (SCC), 14 C.C.C. (2d) 385 (SCC).
10In our view, the cumulative effect of the circumstantial evidence adduced at trial was such that a reasonable jury, properly instructed, could have found the requisite knowledge established at the very least on the basis of wilful blindness. Although we do not consider that the case for the Crown was an overwhelming one, it was, nonetheless, a case that required determination by a properly instructed trier of fact.
11The appeal is allowed, the convictions set aside and a new trial ordered.
“Robert J. Sharpe J.A.”
“David Watt J.A.”
“M.L. Benotto J.A.”