DATE: 20010126

DOCKET: C32616

COURT OF APPEAL FOR ONTARIO

LASKIN, CHARRON JJ.A. and BLAIR R.S.J. (ad hoc)

BETWEEN:

HER MAJESTY THE QUEEN ) Iona Jaffe, for the respondent

(Respondent) )

–and– )

DAISY DIANNE BRYCE ) David M. Tanovich, for the appellant

(Appellant) )

) Heard: October 19, 2000

On appeal from the conviction imposed by Justice Lynda C. Templeton, sitting with a jury, dated March 16, 1999 and from the sentence imposed by Justice Templeton dated May 20, 1999.

LASKIN J.A.:

[1] On June 15, 1997 the appellant Daisy Bryce returned to Toronto from a one-week trip to Jamaica. On her arrival at Lester B. Pearson International Airport, she was stopped by Canada Customs officers, who, on inspection, discovered a package of cocaine hidden in her purse.

[2] Ms. Bryce was arrested and charged with importing cocaine. She pleaded not guilty and was tried by a judge and jury. Knowledge was the only issue at trial. Ms. Bryce testified that she did not know she was carrying cocaine. She claimed that she was an “unknowing mule”, that someone in Jamaica put the cocaine in her purse.

[3] The jury, however, found Ms. Bryce guilty of importing, and the trial judge sentenced her to 3½ years in jail. Ms. Bryce appeals her conviction and her sentence. On her conviction appeal, she makes two submissions: first, the trial judge committed a reversible error by instructing the jury that a reasonable doubt could not arise from the absence of evidence; and second, the Crown’s closing address was improper and caused a miscarriage of justice. I agree with Ms. Bryce’s first submission. I would therefore order a new trial.

Background facts

[4] Ms. Bryce was born in Kingston, Jamaica in 1967. She moved to Toronto when she was 9 years old and became a Canadian citizen in 1991. At the time of the incident, she lived with her 6 year-old daughter in a rented apartment in Newmarket and was on family benefits. She had no criminal record.

[5] Ms. Bryce testified that early in June she decided to go to Jamaica. She was 2½ months pregnant and wanted to take a vacation to think about her future and visit her father. Before she left, she received a call from a person she had met and befriended on a previous trip to Jamaica. She knew this person as “Marie”, but did not know her last name. Marie offered Ms. Bryce a free place to stay in Montego Bay. Ms. Bryce accepted the offer. She bought her airline ticket three or four days before her departure at a cost of $300, which she paid in cash. She departed for Jamaica on June 8, 1997, leaving her daughter in the care of her daughter’s godmother, “Dee”.

[6] While in Montego Bay, Ms. Bryce stayed with Marie, who rented a bedroom in a house. Several other persons also rented rooms in this house.

[7] Ms. Bryce testified that she bought the purse later found to contain cocaine in Toronto, and brought it with her to Jamaica. She said that while in Jamaica she mostly left the purse in a closet in Marie’s room; the door to the room was not locked.

[8] Ms. Bryce spent most of her trip with Marie as she could not locate her father. On the last night of her trip, Ms. Bryce was at a party from the late afternoon until 8 or 9 p.m. During that time, she left her purse in Marie’s room.

[9] On June 15, Ms. Bryce returned to Toronto. On her arrival at Pearson Airport, Customs officers inspected her bag. During a secondary inspection they found the cocaine, which was hidden in a false bottom sewn inside her purse. The cocaine weighed 1,417 grams and had a street value of about $212,000. Neither of two fingerprints found on the cocaine packages matched Ms. Bryce’s fingerprints.

[10] Ms. Bryce said that Dee was to pick her up at the airport. However, she did not see Dee when she got off the plane. Dee testified that she waited at the airport for about an hour and left when she did not see Ms. Bryce.

[11] After her arrest, Ms. Bryce asked to telephone Dee. She gave Dee’s pager number to a police officer who called the number twice between 11:05 and 11:30 p.m. but got no answer. Ms. Bryce left a message that she had been arrested and had a bail hearing the next day. Dee testified that before going to bed she checked her messages and had none from Ms. Bryce.

[12] In support of her defence that she was an “unknowing mule”, her trial counsel relied on the following evidence:

• Because Ms. Bryce mostly left her purse in an unlocked room in Jamaica, someone could have put the cocaine in it without her knowledge;

• Dee was from Jamaica, had travelled there many times herself and acted suspiciously the night Ms. Bryce returned home;

• Ms. Bryce showed a calm demeanour when first questioned by Customs officers;

• On an earlier trip to Jamaica, Ms. Bryce had been stopped at Customs because an officer believed that she had swallowed narcotics. No narcotics were found. Ms. Bryce testified that this was a horrible experience and her trial counsel argued that because of it she would not have agreed to import cocaine.

Discussion

[13] The trial judge misdirected the jury on reasonable doubt by telling them that a reasonable doubt cannot arise from the absence of evidence. She did so in her charge to the jury and she repeated her error in answering a question from the jury.

[14] Initially in her charge the trial judge did explain the concept of reasonable doubt in accordance with the model instruction set out by the Supreme Court of Canada in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320; (1998), 118 C.C.C. (3d) 1 (S.C.C.). She told the jury: “A reasonable doubt is logically derived from the evidence tendered at a trial or from a lack of evidence tendered at a trial.” This was a correct instruction.

[15] Unfortunately, however, later in her charge the trial judge retracted her correct instruction and substituted an incorrect one. She told the jury that her earlier instruction had been wrong, and that a reasonable doubt is only “logically derived from the evidence tendered at trial”:

I indicated to you earlier reasonable doubt is logically derived from the evidence tendered at a trial, or from a lack of evidence tendered at a trial. I realized in saying that to you, I was in error. A reasonable doubt is logically derived from the evidence tendered at a trial. I will stop there and I will repeat that. A reasonable doubt is logically derived from the evidence tendered at a trial. The law has since changed regarding the lack of evidence. So to make it clear, a reasonable doubt is logically derived from the evidence tendered at a trial.

[16] In saying to the jury “the law has since changed”, the trial judge was undoubtedly referring to the amendment the Supreme Court of Canada had itself made to its model charge in Lifchus, following a rehearing of that case. However, the trial judge misunderstood that amendment. The Supreme Court of Canada did not delete the words “or lack of evidence” from its model definition of reasonable doubt; it deleted these words from its explanation of proof beyond a reasonable doubt.

[17] Formerly, the relevant paragraphs of the Supreme Court of Canada’s model charge read:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

In short if, based upon the evidence or lack of evidence before the court you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [118 C.C.C. (3d) at 14).] [Emphasis added.]

[18] As corrected, those paragraphs now state:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [Emphasis added.]

[19] Unquestionably, a reasonable doubt can arise from an absence of evidence. Lifchus makes this clear, as have several decisions of this court. For example, in R. v. Lynch, 1978 2347 (ON CA), [1978] O.J. No. 614 at p. 8 (Q.L.), Justice Martin wrote that “reasonable doubt, of course, may be founded on the evidence, or the absence of evidence with respect to a material issue required to be proved”. See also R. v. A.(S.) (1992), 1992 7517 (ON CA), 76 C.C.C. (3d) 522 at 526 (Ont. C.A.).

[20] Thus, in saying that a reasonable doubt cannot arise from a lack of evidence the trial judge misdirected the jury. She repeated this misdirection in answering a question from the jury. After her charge, the jury asked the trial judge to repeat her “description of reasonable doubt, its scope and definition”. In response, the trial judge failed to correct her earlier misdirection. Instead, she simply told the jury that “a reasonable doubt is logically derived from the evidence tendered at trial.”

[21] The question on this appeal is whether the trial judge’s misdirection on reasonable doubt amounts to a reversible error. Failure to comply with the model instruction in Lifchus does not necessarily invalidate a charge. In its recent quartet of cases on reasonable doubt – R. v. Avetysan (2000), S.C.C. 56, R. v. Russell (2000), S.C.C. 55, R. v. Beauchamp (2000), S.C.C. 54 and R. v. Starr (2000), S.C.C. 40 – the Supreme Court has said that a jury charge on reasonable doubt should be upheld if it substantially complies with the principles in Lifchus. See Starr, at para. 237. Exact compliance is not required. Instead, an appellate court must test a charge against the following standard: “Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof? If not the charge is adequate.” See Avetysan at para. 12. Conversely, if the jury likely misapprehended the correct standard of proof, the reliability of its verdict is suspect and the court cannot be satisfied that the accused had a fair trial.

[22] In its earlier decisions, this court has applied a standard similar to the standard set out by the Supreme Court of Canada in its quartet of cases on reasonable doubt. Indeed this court has refused to invalidate a pre-Lifchus charge because the trial judge failed to instruct the jury that a reasonable doubt can arise from the absence of evidence. For example, in R. v. Brooks (1998), 1998 5686 (ON CA), 129 C.C.C. (3d) 227 at 259-60, rev’d on other grounds (1999), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.), the majority judgment held:

In Lifchus, Cory J. said at p. 12 that a jury should be instructed that “a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence” [emphasis added]. The trial judge’s charge did not conform to the suggested instruction in Lifchus but, in my view, his failure to explain that a reasonable doubt might be based on the lack of evidence does not amount to a reversible error. The trial judge told the jury not to speculate and, unlike the jury in Lifchus, this jury could not have misapprehended the applicable burden and standard of proof.

In each appeal, the reviewing court must consider the error in the charge in the light of the rest of the instructions on reasonable doubt, the issues in the case and any questions from the jury. As Iacobucci J. said in Russell at para. 17:

This assessment of the sufficiency of the charge is a function primarily exercised by courts of appeal and requires a detailed review of the charge as a whole in the full context of the trial: the complexity of the factual issues to be resolved, their degree of contentiousness, the nature and quality of the evidence tendered by the parties, their respective positions at trial, as well as any concerns that may have been expressed by the jury in its questions after the charge.

The bottom line question remains whether the reviewing court considers it reasonably likely that the jury misapprehended the standard of proof.

[23] I would answer that question “yes” in this appeal. I would do so for two reasons. First, in her main charge the trial judge did not merely fail to tell the jury that a reasonable doubt could arise from an absence of evidence. She expressly told them that a reasonable doubt could not arise from an absence of evidence. The court must assume that the jury applied this erroneous instruction to the only live issue at the trial, Ms. Bryce’s knowledge.

[24] Ms. Bryce’s sole defence was that while in Jamaica someone put the cocaine in her purse and she neither knew it was there nor how it got there. Yet there was a lack of evidence at the trial about what took place in Jamaica. The Crown did not lead any direct evidence of Ms. Bryce’s knowledge. Indeed in her closing address, Crown counsel pointed out that importing cases are difficult to prosecute because of the absence of direct evidence.

Now the Crown doesn’t have a videotape to show you that --- what --- to show you who was packing the cocaine, who sewed up that purse, what Ms. Bryce did in Jamaica. We don’t have that. If we did, we probably wouldn’t be having a trial. In --- I would submit to you that --- that it’s almost impossible. How is it possible for a Crown to have that kind of evidence? Ms. --- the Crown doesn’t have a confession. The Crown only has the statement which Ms. Bryce gave, which may have some inconsistencies in it, but which basically denies her knowing that the cocaine was in her purse. So --- my friend, Mr. Rusonik [defence counsel], indicated well the --- Crown hasn’t called any direct evidence to --- to show that Ms. Bryce had this cocaine in her purse. But I would suggest to you that the Crown barely ever has any evidence like that. The case unfolds at the airport once somebody is caught with the drugs. How is the Crown to get evidence of how it got there, unless it’s a statement or there is some kind of other evidence to --- to indicate how it got there?

[25] The trial judge’s misdirection may well have led the jury to conclude that the lack of evidence about what occurred in Jamaica could not raise a reasonable doubt about Ms. Bryce’s knowledge.

[26] The Crown contends however that because Ms. Bryce testified, the trial judge’s misdirection was immaterial. I disagree with this contention. Admittedly, the jury must have rejected Ms. Bryce’s evidence that she did not know how the cocaine got into her purse. However, a jury can reject an accused’s explanation and still have a reasonable doubt. Because of the trial judge’s misdirection, the jury likely did not appreciate that a reasonable doubt could arise as much from a lack of evidence as from the evidence itself.

[27] The second reason why I would not uphold the trial judge’s charge is the trial judge’s answer to the jury’s question. The record suggests that the jury struggled with the trial judge’s instruction on reasonable doubt. After deliberating for 2½ hours, the jury asked the trial judge to repeat her description of reasonable doubt, including its “scope and definition”. Although in answering the question the trial judge did not expressly tell the jury that a reasonable doubt could not arise from the absence of evidence, she did not tell them that a reasonable doubt could arise in that way. Instead, as I have already said, she simply told them that a “reasonable doubt is logically derived from the evidence tendered at trial”. This instruction was incomplete.

[28] The Supreme Court of Canada has repeatedly emphasized the importance of answering a jury’s questions completely and correctly, especially a question concerning something as fundamental as the standard of proof. Thus Lamer C.J.C. wrote in R. v. Brydon (1995), 1995 48 (SCC), 101 C.C.C. (3d) 481 at 490 (S.C.C.):

I am of the opinion that there is a greater risk that the jury may be misled when the erroneous instructions are found in a recharge which was in response to a jury question concerning the burden of proof and/or reasonable doubt.

[29] I consider this appeal to be a close decision because the rest of the trial judge’s instructions on the burden and standard of proof were unimpeachable. But the trial judge’s initial misdirection on whether a lack of evidence could give rise to a reasonable doubt, a misdirection which she compounded by her incomplete answer to the jury’s question, together are sufficiently serious in the context of this case to warrant a new trial. Because of the trial judge’s errors, it is reasonably likely that the jury misapprehended how a reasonable doubt could arise on the only material issue in the case, Ms. Bryce’s knowledge. I am, therefore, not satisfied that Ms. Bryce had a fair trial.

[30] I would allow the appeal, set aside the conviction and order a new trial. It is therefore unnecessary to consider Ms. Bryce’s other ground of appeal against her conviction.

Released: JAN 26 2001 Signed: “John Laskin J.A.”

JIL “I agree Louise Charron J.A.”

“I agree R.A. Blair R.S.J. (ad hoc)”