COURT OF APPEAL FOR ONTARIO

DATE: 20000727

DOCKET: C32499

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

[1] The 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.

[2] The 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.

[3] The 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.

[4] Shortly after the jury retired, they sent the following

question to the trial judge:

Is the defence attorney appointed by the court?

[5] The 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.

[6] Counsel 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.

[7] The jury returned several hours after receiving the answer

to this question with a guilty verdict.

[8] On 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.

[9] Given 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.

[10] Unfortunately, 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.