Court of Appeal for Ontario

Date: 20220506 Docket: C66675 & C66676

Strathy C.J.O., Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Djamila Panzo Appellant

AND BETWEEN

Her Majesty the Queen Respondent

and

Jeremy Bailey Appellant

Counsel: Nathan Gorham and Breana Vandebeek, for the appellants Sarah Shaikh and Jonathan Geiger, for the respondent

Heard: April 13, 2022

On appeal from the convictions entered by Justice Cynthia Petersen of the Superior Court of Justice, sitting with a jury, on December 20, 2018.

Nordheimer J.A.:

[1] Djamila Panzo appeals from her convictions for importing heroin, conspiracy to import heroin, possession of heroin for the purpose of trafficking, and conspiracy to possess heroin for the purpose of trafficking. Jeremy Bailey appeals from his convictions for conspiracy to import heroin, possession of heroin for the purpose of trafficking, and conspiracy to possess heroin for the purpose of trafficking. Mr. Bailey was acquitted of importing heroin.

[2] For the following reasons, I would dismiss Ms. Panzo’s appeal, but I would allow Mr. Bailey’s appeal, set aside his convictions, and enter acquittals.

Background

[3] On July 10, 2016, Canada Border Services Agency (“CBSA”) officers intercepted a shipment from Malaysia. It consisted of two boxes — one contained a small disassembled table; the other, household items. Inside the hollow tabletop, the officers found a package containing 347 grams of heroin. The boxes were turned over to the Royal Canadian Mounted Police (“RCMP”) later that same day.

[4] The shipment was addressed to “Lacey Braxton” at 2590 Rugby Road, Unit 606, in Mississauga, Ontario. It had been sent by Ms. Pamela Ranjini, from a shopping mall in Kuala Lumpur, Malaysia. A few weeks prior, the CBSA had intercepted another package sent by Ms. Ranjini that also contained heroin. However, the previous package was not addressed to Lacey Braxton or the apartment building at 2590 Rugby Road. That previous interception was also not public knowledge.

[5] The next day, July 11, two RCMP officers attended 2590 Rugby Road to investigate the building’s list of occupants, which was located inside the front door. There was no name associated with Unit 606, and the name Lacey Braxton did not appear on the list at all. The officers did not follow up with anyone from the building for more information on Ms. Braxton or the occupant(s) of Unit 606.

[6] RCMP officers then organized a controlled delivery of a small, sample portion of the heroin to Unit 606. First, they had to repair the tabletop, as CBSA officers had made a hole in the bottom of it to extract the drugs. RCMP officers took the packages to a forensic identification officer who photographed the packages and heroin. The next morning, two officers repaired the hole in the tabletop by hot gluing together a pressed board that they had purchased and the underside of the tabletop.

[7] The cardboard box containing the tabletop had also been damaged during the search. An officer re-taped parts of the box so it would appear not to have been tampered with. In cross-examination, another officer was directed to his testimony at the preliminary inquiry, in which he had stated, “We rewrapped [the box] with new brown paper but reused the stickers to give it the same look.” At trial, he admitted there was no fresh brown paper used to rewrap the box.

[8] The controlled delivery took place on the afternoon of July 13, 2016. Nine officers were involved. Sgt. Singh, disguised as a delivery person, brought the packages to Unit 606. At 2:13 p.m., he knocked on the door. Ms. Panzo answered. He said he had a delivery for Lacey Braxton. Ms. Panzo signed for the packages. During the delivery, Sgt. Singh did not observe anyone else in the apartment. After he delivered the packages, he took the elevator back to the ground floor, where he called Cst. Stroud and relayed the details of his conversation with Ms. Panzo.

[9] Sgt. Singh described his conversation with Ms. Panzo when he delivered the packages. He said that Ms. Panzo looked at both boxes. Sgt. Singh said that both packages were for Lacey Braxton. At that point, Ms. Panzo smiled and said, “that’s my cousin, tell me where I need to sign.” Sgt. Singh said that he asked her again whether Lacey Braxton lived at Unit 606 and Ms. Panzo said, “yes, that’s my cousin. I will take the packages on her behalf.” Sgt. Singh did not record the conversation, but he made notes of it later in the day.

[10] There is some corroboration of this conversation from Cst. MacIntyre, who could see part of the door to Unit 606 through a small window in the door of the stairwell where he was positioned with Cpl. Dequanne. Cst. MacIntyre testified that he heard Ms. Panzo say that Lacey Braxton was her cousin and that she could sign for the packages. Cpl. Dequanne gave similar evidence.

[11] Cst. MacIntyre, Cpl. Dequanne, and Cpl. Stewart kept watch on the door to Unit 606 after the packages were delivered. After about 15 minutes, Mr. Bailey exited Unit 606 and began walking down the hallway in the direction of the elevator. After a “quick discussion” amongst themselves, the officers decided to arrest him. By then, Mr. Bailey was “quite a distance away”. The officers stepped into the hallway and began quietly following him.

[12] Mr. Bailey looked over his shoulder and saw the officers, who were dressed in plainclothes. Cpl. Dequanne said, “Sir”, and Mr. Bailey began to run. Cpl. Dequanne yelled again, “‘Stop, police’, or something to that effect”, and Mr. Bailey ran into the far stairwell and down to the ground floor.

[13] Cst. MacIntyre and Cpl. Dequanne gave chase. Cpl. Stewart stayed behind. When they reached the stairwell, Cpl. Dequanne ran upstairs and Cst. MacIntyre ran down. Cst. MacIntyre could not see Mr. Bailey in the stairwell but could hear footsteps. When he exited the building on the ground floor, Cst. MacIntyre saw Csts. Wong and Croft chasing Mr. Bailey across a busy Dundas Street, so he joined the pursuit.

[14] Cst. Wong and Cst. Croft had been stationed outside the building in an unmarked van during the controlled delivery. They were in plainclothes but wore police vests with an RCMP crest and the word “Police” written on the back. Cst. Croft testified that Cst. Wong was actually wearing a takedown jacket which covered her police vest; otherwise, she would not have been sitting in the front seat of the van. When they saw Mr. Bailey running out of the side door, Cst. Wong exited the vehicle and said, “Police, stop.”

[15] Cst. Croft chased Mr. Bailey over a fence and through a field toward an outbuilding. The officers eventually reached Mr. Bailey, who held his cell phone out and yelled, “Police, don’t shoot me, don’t shoot me, police”. On cross‑examination, counsel for Mr. Bailey suggested he may have been saying “please don’t shoot me”. Cst. MacIntyre reiterated that his recollection was that Mr. Bailey said “police”, not “please”. Cst. Croft drew his pistol. He then realized Mr. Bailey was holding a cell phone, so he holstered his weapon. Mr. Bailey was arrested without further incident. Among other things, he had $690 in cash, two cell phones, car keys, other keys, a driver’s licence, a credit card, and an RBC client card on his person.

[16] Meanwhile, Cpl. Dequanne and Cpl. Stewart knocked on the door to Unit 606 to execute a search warrant. Ms. Panzo opened it. She was placed under arrest. Shortly after, Cst. Ryder arrived and entered the apartment. During her initial observations, Cpl. Dequanne became concerned that the sample of heroin contained inside the controlled delivery tabletop was missing (although in fact it was still there). She observed that “one package was open and it had the tabletop exposed and in fact, the, the bottom side of that table had been taken off.” She said the entire tabletop was exposed. It appeared to Cpl. Dequanne that the pressed board “had been taken off and kind of left, just dropped on top of … that table.” She did not touch the package herself, but she explained that, while she did not know whether the pressed board had been completely removed, “it was open enough for me to be able to see that … the substitute shipment [was] not … in there.”

[17] Cst. Ryder observed that the cardboard package was “open enough that you could see a bit of the table” and the pressed board “was just up” about two centimetres. The board seemed to be “still in line” with the table, but it was raised a couple of centimetres “away from the table itself.” She did not touch the package, nor did she observe any other officers do so. She also did not recall anyone mentioning that the heroin was missing.

[18] After arresting Mr. Bailey, Cst. McIntyre returned to Unit 606 and the officers began searching the apartment. They located the following items: a purse containing $12,040, a bank statement bearing Mr. Bailey’s name, two traffic tickets in Ms. Panzo’s name, and a letter to Ms. Panzo from November 2015 that her rent was overdue. According to Cst. McIntyre, the cardboard box containing the tabletop “had been opened and the false bottom that we had put on [the tabletop] had been removed.” He could not recall whether the bottom had been “completely removed or pried up.” The sample amount of heroin was found, still inside the tabletop where it had been placed.

[19] The search of the apartment did not reveal any correspondence, phone records or documentation connecting the appellants to the drug trade, Malaysia, or any other suspicious countries. Further investigation related to the packages in Malaysia and the packages’ sender also provided no link to either of the appellants.

[20] The only defence witness called was Ms. Gracelyn Symister, Mr. Bailey’s mother. She explained that Ms. Panzo and Mr. Bailey were living together in Unit 606. She testified that 2590 Rugby Road was in “a high crime neighbourhood” and that, for a long time, she had been “telling [Mr. Bailey and Ms. Panzo] they need to get out of there”. She also explained that Mr. Bailey worked at his father’s tailoring business and that Ms. Panzo was attending York University and had two jobs, working both as a security guard and a bartender.

[21] Ms. Symister knew Mr. Bailey and Ms. Panzo were saving money to buy a condominium unit, though she was unaware of where they kept their savings or how much they had been able to save. She had no concerns that the couple were experiencing financial problems or involved in illegal activity.

[22] Ms. Symister also testified that Mr. Bailey was supposed to pick her up from work at 3:00 p.m. on the date of the controlled delivery.

Grounds of Appeal

[23] The appellants raise five grounds of appeal:

1. The trial judge erred in her instructions on party liability.
2. The trial judge erred in her instruction on the co-conspirators’ exception to the hearsay rule.
3. The trial judge erred in her instruction on motive.
4. The verdicts are unreasonable.
5. The verdicts for Mr. Bailey are inconsistent.

[24] I will deal with each of the grounds in turn.

A. Party liability

[25] At a pre-charge conference, the trial judge raised the issue of instructing the jury on party liability. She asked Crown counsel whether he wished for such an instruction and, if so, what the instruction should be. Crown counsel responded that he did want such an instruction, but he was not ready to set out the instruction that he wanted. It was agreed that the issue would be discussed further at a later point. That never happened.

[26] Very early in her instructions to the jury, the trial judge explained that there were “different modes of participation in criminal activity”. She then went on to explain liability as a principal, which she followed with an instruction on aiding. No issue is taken with the legal correctness of these instructions. The trial judge then told the jury that the Crown was “entitled to rely on these different ways of committing an offence.”

[27] That was the only substantive reference to aiding in the jury instructions. The only other reference was at the conclusion of her instructions regarding count #1, the importing offence, where the trial judge concluded, in respect of Mr. Bailey, by saying “if you are not satisfied beyond a reasonable doubt that he was responsible for importing or aiding someone to import the package”, then Mr. Bailey must be found not guilty. The trial judge made the same reference to aiding if the jury reached the opposite conclusion. The trial judge made a similar reference in discussing count #1 as it related to Ms. Panzo, except that in that instance, she used the word “assisting” rather than the word “aiding”.

[28] As I explained earlier, Crown counsel never enunciated the party liability instruction that he was seeking. It appears the trial judge decided on the aiding instruction on her own. Generally, there is nothing wrong with a trial judge providing an instruction to the jury that counsel do not seek. What is important, however, is that there is evidence in the particular case that justifies the instruction given. In this case, there was an absence of evidence relating to Mr. Bailey that would sustain aiding as a proper route to liability. Indeed, the trial judge never told the jury what evidence they could rely upon to find that Mr. Bailey aided in the commission of count #1, or any of the other counts for that matter.

[29] It is the obligation of a trial judge when instructing a jury to relate the evidence to the issues raised: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 11. The reason for this obligation was expressed by Watt J.A. in R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 44: “Judicial relation of the evidence to the issues improves jurors’ understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case” (emphasis in original).

[30] Without telling the jury what evidence there was to support aiding in relation to Mr. Bailey, the jury was left without any guidance as to what they should consider. Moreover, since the trial judge had told them at the outset of the instructions that the Crown could rely on this route to liability, it left the distinct possibility that the jury would indiscriminately use this as an alternative route to liability if they could not agree on whether Mr. Bailey was a principal.

[31] An aiding instruction was not appropriate. All that the evidence did regarding Mr. Bailey was establish that he lived at the apartment and was inside when the packages were delivered. It did not establish where he was in the apartment. He then left the apartment. He was approached from behind by plainclothes officers in the hallway of the building whereupon he ran. Once outside, he was chased by officers who wore police identification. He eventually stopped and was arrested. It would be difficult to see, on that evidence, how aiding could have been established.

[32] Nor was there evidence in support of the theory that Ms. Panzo was aiding Mr. Bailey in the importation of the drugs. Certainly, that was never suggested to be the case. The Crown had led expert evidence about the drug trade and the importation of drugs. It would have been open to the jury to draw the inference, if they were satisfied that Ms. Panzo had imported the drugs, that she was merely one link in the importing chain. The jury could then have concluded that she aided unknown others in the importation. In other words, if Ms. Panzo was not the ultimate intended recipient of the drugs, but rather was just responsible for receiving them and then passing them on to others, she could be found guilty of being an aider to the importing by unknown others. However, the trial judge never fully explained that possible route to the jury nor did she relate the evidence to it. As such, the jury was left without assistance on how aiding might apply to the offences that they were considering.

[33] Where a trial judge leaves different routes of liability with a jury, they have an obligation to relate the evidence to each possible route of liability so that the jury understands how each route might apply to each accused. The trial judge did not do that in this case. Without that assistance, the jury may have improperly applied aiding to the facts against Mr. Bailey, thus rendering the verdict of party liability as against him unsafe.

B. Co-conspirators’ exception to the hearsay rule

[34] It is well-known that instructing a jury on the co-conspirators’ exception to the hearsay rule is one of the most difficult instructions to give properly.

[35] It has also been made clear that this instruction should be avoided unless the evidence clearly requires it to be given. As this court said in R. v. Hall, 2010 ONCA 421, 267 O.A.C. 35, at para. 21: “The so-called Carter instruction on the co‑conspirator’s exception of the hearsay rule is universally acknowledged to be a complicated instruction and a difficult instruction to absorb and apply. Wherever possible, it is best avoided.”

[36] In this case, the instruction was not necessary. The trial judge should have resisted Crown counsel’s request to include it. Two reasons support this conclusion. One is that the factual foundation for the conspiracy theory differed between Mr. Bailey and Ms. Panzo in much the same way that the party liability issue differed between the two. On the facts of this case, it is difficult to see how a conspiracy could have been established that involved Mr. Bailey. There was no direct evidence of an agreement involving Mr. Bailey and the circumstantial evidence did not exclusively lead to a conclusion that one existed.

[37] While Ms. Panzo’s participation in the importation of the drugs as a principal might suggest the presence of an agreement with others to undertake the importation, and thus potentially establish a conspiracy involving her, that evidence did not apply to Mr. Bailey.

[38] Having decided to give the instruction, the trial judge failed to relate the evidence to the instruction. The trial judge also did not point out to the jury that they might conclude that there was an agreement that could support a conspiracy conclusion that involved Ms. Panzo, but that had nothing to do with Mr. Bailey. As the decision in R. v. Carter, [1982] 1 S.C.R. 938, at pp. 946-47, outlines, the first step in a conspiracy instruction is to tell the jury that it is only if there is some evidence of the accused’s membership in the conspiracy, directly admissible against them, that use of the co-conspirators’ exception to the hearsay rule can be made. It then becomes incumbent on the trial judge to outline the evidence that is directly admissible for that accused person. This point is made clear in Carter where McIntyre J. said, at pp. 947-48: “The trial judge should point out to the jury, as well, the evidence directly admissible against the accused on the threshold issue of his membership in the conspiracy to assist them in that determination.”

[39] The inclusion of the instruction gives rise to another problem in this case. In giving the instruction, the trial judge opened a door for the jury to receive and consider Mr. Bailey’s running from the police as part of the evidence in furtherance of the conspiracy. Indeed, the trial judge told the jury, in instructing them on the second stage of the conspiracy determination as it related to Ms. Panzo, that the jury could consider things that Mr. Bailey had said or done. She then added more specifically a reference to Mr. Bailey’s flight. She told the jury: “It would be open for you to conclude that Mr. Bailey’s conduct after he exited Unit 606 was not conduct in furtherance of the object of the conspiracy to import heroin or was not conduct that occurred while the conspiracy was still ongoing.”

[40] The respondent fairly concedes that this evidence should not have been considered by the jury in deciding the conspiracy issue as it related to Ms. Panzo. However, the respondent says that it did not cause any prejudice to Ms. Panzo because it would have been clear to the jury that Mr. Bailey’s flight from the apartment did not implicate her. Even accepting that to be the case, the inclusion of this evidence demonstrates the problem that arose from giving the instruction and the ever-present prospect of prejudice resulting from it.

[41] The failure of the trial judge to relate the evidence to the elements of the conspiracy offences once again left the jury without the assistance that they needed. Had the trial judge set out the evidence as it related to both accused, it would have become clear that there was no direct evidence of Mr. Bailey’s involvement in any agreement that could found the conspiracy count. Further, the failure to clearly identify that there might be a conspiracy that involved Ms. Panzo and unknown others, but that did not involve Mr. Bailey, failed to equip the jury with the necessary assistance to ensure that they considered each accused separately – as they had to do. Further still, had the trial judge so instructed the jury, she would have realized that, with respect to a conspiracy that involved Ms. Panzo and others but did not involve Mr. Bailey, there was no evidence to which the co‑conspirators’ exception to the hearsay rule could apply. The instruction was not necessary.

[42] All of this should have made it clear to the trial judge why the instruction should not have been given.

C. The motive instruction

[43] The appellants object to the trial judge’s inclusion of an instruction on motive. The expressed motive was financial gain. The defence had called Mr. Bailey’s mother as their only witness. She gave some evidence relating to the appellants’ financial condition, including their employment and their intended goal of buying a condominium unit. There was also some other evidence relating to a bank account balance and an alleged small overdue amount for rent.

[44] The trial judge gave the proper legal instruction relating to motive, including that the prosecution has no obligation to prove a motive. Whether to include such an instruction is a judgment call for the trial judge to make. She might well have not included such an instruction, on the assumption that any juror would recognize that there is a financial gain to be achieved from dealing in drugs. At the same time, given that some evidence had been led on the subject, the trial judge was entitled to include it. The discretion that the trial judge exercised in including the instruction is not a matter that this court should interfere with on appeal. I would also note, on this point, that the trial judge downplayed the evidence on motive when she told the jury that there was “not a lot of evidence” for the jury to consider on this issue. I do not see any error in the manner in which the trial judge dealt with this issue.

D. Unreasonable verdicts

[45] The appellants contend that the verdicts are unreasonable. They submit that there was almost no evidence that could implicate Mr. Bailey in the offences and that the evidence of knowledge on the part of Ms. Panzo was “scant”.

[46] The test for determining whether verdicts are unreasonable was expressed by Doherty J.A. in R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 3:

Where the reasonableness of the verdict is raised, the appellate court must review the entirety of the evidence using its accumulated training and experience to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier‑of-fact properly instructed and acting judicially could have convicted. [Citation omitted.]

[47] In my view, no reasonable jury properly instructed could have convicted Mr. Bailey of these offences on the evidence that was presented. There was almost no evidence upon which a jury could reach a conclusion of guilt beyond a reasonable doubt. The only evidence that directly involved Mr. Bailey was with respect to what he did after he left the apartment. That post-offence conduct was insufficient, on its own, to lead to a conclusion of guilt beyond a reasonable doubt. Further, and as I shall explain shortly, the fact that the jury acquitted Mr. Bailey of the importing charge, but convicted him of the other charges, demonstrates the obvious confusion under which the jury was labouring.

[48] I reach a different conclusion with respect to Ms. Panzo, however. There was a good deal of evidence that would support findings of guilt with respect to her. This includes that the packages that were delivered to the residence were accepted by her; that she said that it was her cousin to whom the packages were addressed; that she was in direct proximity to the packages after the delivery was completed; and that the packages had been opened, particularly in the false bottom where the drugs were hidden, when the police entered the apartment to arrest Ms. Panzo. The finding of guilt with respect to Ms. Panzo on that evidence is not unreasonable.

E. Inconsistent verdicts relating to Mr. Bailey

[49] I have already mentioned that the jury acquitted Mr. Bailey of the importing charge but convicted him of conspiracy to import, possession for the purpose of trafficking, and conspiracy for the purpose of trafficking.

[50] I agree with the appellants that there is no rational way of reconciling these verdicts as they relate to Mr. Bailey. The most striking inconsistency is how the jury could have been satisfied beyond a reasonable doubt that Mr. Bailey had possession of the drugs for the purpose of trafficking, but yet not be satisfied that he was involved in the importing of the drugs. Given the brief period between the delivery of the packages and Mr. Bailey’s departure from the apartment – approximately 15 minutes – those conclusions are hard to reconcile. A similar point can be made regarding the acquittal on the importing offence but conviction on the conspiracy to import offence. The verdicts appear to represent what Martin J.A. described in R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56:

Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise.

[51] Given what I have already said about the trial judge’s failure to relate the evidence to the elements of the offences, a conclusion that the jury was confused regarding what the evidence established becomes an easy one to reach.

F. Summary

[52] Before turning to my summary, I should mention one other matter. During the course of the oral submissions, the appellants raised what appears to be a new and separate argument: that is, that there was insufficient evidence to support a conviction of importing because there was no evidence that the appellants, especially Ms. Panzo, knew that the packages were coming from outside Canada.

[53] I reject that argument, both because it is not properly raised on appeal when it was not raised at trial, and also because it does not accord with the evidence. Ms. Panzo signed for the packages. Directly to the left of her signature is the address of the sender in Malaysia. Further, the packages bore bright tape indicating that they had been opened by customs. There was therefore some evidence upon which the jury could be satisfied that the drugs had arrived from outside Canada and thus had been imported.

[54] The appellants also raised the argument in oral submissions that Mr. Bailey’s flight from police may have been related to the fact that he was a young Black man. Given my conclusions with respect to the convictions for Mr. Bailey, I do not need to address this argument.

[55] Turning then to the summary of my conclusions, the errors in the jury instructions led to unreasonable, and inconsistent, convictions for Mr. Bailey. His convictions cannot be sustained on any proper view of the evidence and must be set aside.

[56] I do not reach the same conclusion regarding Ms. Panzo. The errors in the jury charge do not impact her directly. The problems with the party liability instructions do not change the fact that there was sufficient evidence that would have permitted a conviction of Ms. Panzo as a principal – evidence that the trial judge reviewed in detail. No reference to aiding was necessary in order to convict her. The error regarding the co-conspirators’ exception to the hearsay rule did not prejudice her as there was no evidence to which it could apply. The fact that the trial judge did not delineate the very real possibility that Ms. Panzo could have been found to be a party to an agreement with unknown others that gave rise to the importation of the drugs worked to her benefit. But it did not mean that the jury could not reach that conclusion. To the degree that the failure to delineate the evidence on this point in relation to Ms. Panzo constitutes an error, I would apply the proviso contained in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C‑46, on the basis that the error did not give rise to any substantial wrong or miscarriage of justice.

[57] I rejected the argument that the motive instruction was an error and I rejected that the verdicts were unreasonable as they relate to Ms. Panzo. The inconsistent verdicts argument does not apply to her. There is, therefore, no basis to interfere with the verdicts as they relate to Ms. Panzo.

CONCLUSION

[58] The appeal by Mr. Bailey is allowed and the convictions against him are set aside. Given that there is a lack of an evidentiary foundation for the offences against Mr. Bailey, I would enter acquittals. The appeal by Ms. Panzo is dismissed.

Released: May 6, 2022 “G.R.S.” “I.V.B. Nordheimer J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. J.A. Thorburn J.A.”