DATE: 20020306 DOCKET: C34596
COURT OF APPEAL FOR ONTARIO
DOHERTY, WEILER and CHARRON JJ.A.
B E T W E E N :
Paul Calarco
HER MAJESTY THE QUEEN
for the appellant
Respondent
- and -
John North
for the respondent
ANTHONY EJIOFOR
Accused/Appellant
Heard: February 27, 2002
On appeal from the conviction entered and sentence imposed by Justice Thomas M. Dunn, sitting with a jury, on April 3, 2000.
DOHERTY J.A.:
I
[1] The appellant was convicted of one count of importing cocaine and one count of possession of cocaine for the purpose of trafficking.
[2] A package containing cocaine was mailed to Mr. Michael Charles, a friend of the appellant. The police intercepted the package before it reached Mr. Charles and decided to make a controlled delivery of the package. Mr. Charles picked up the package and drove away in his vehicle. He was under police surveillance. Mr. Charles parked his vehicle in a plaza. The package containing the cocaine was in the trunk. A few hours later, the appellant approached Mr. Charles’ vehicle, opened the trunk, looked in and then closed the trunk. A short time later, he drove away in Mr. Charles’ vehicle. He was followed for about an hour and, according to the police, was acting very suspiciously. After the appellant parked the car and left the vehicle, it became apparent to the police that the cocaine was no longer in the trunk. The appellant was arrested a short time later. The package containing the cocaine was never recovered.
[3] The issue at trial was whether the appellant knew that there was cocaine in the package in the trunk. He testified that he had no such knowledge. Mr. Charles who pled guilty prior to trial also testified that the appellant had no knowledge of the cocaine in the trunk. The case for the Crown was entirely circumstantial and while it could support the convictions, the case was far from overwhelming. The appellant raises several grounds of appeal. Two have merit.
II
The improper cross-examination of the appellant by Crown counsel
[4] In his examination-in-chief, the appellant described his first months in Canada as a refugee claimant. He testified that he was befriended by Mr. Charles who came from Nigeria as did the appellant. The appellant also met and was befriended by Mr. Okeke and Mr. Azukakwu. They were also from Nigeria and lived near the appellant. According to the appellant, these men helped him find a place to live, and introduced him to other people.
[5] The impugned cross-examination is set out below:
Q. Okay. So within the span of a few months you met Mr. Okeke, Mr. Azukakwu and Mr. Charles, right?
A. Yes.
Q. And you know Mr. Okeke has been convicted of drug importing?
A. Yes.
Q. And you know Mr. Azukakwu has been convicted of drug importing?
A. Yes.
Q. And you also know from the charges you’re facing today and from Mr. Charles’ evidence, he’s also been convicted of drug importing?
A. Yes.
Q. So here you find yourself in a new country, you’d never outside of your homeland in Nigeria, right?
A. Yes.
Q. You find yourself in a strange country, you don’t know much about the system, you’re talking to people at the shelter, learning about Legal Aid, learning about welfare, right?
A. Yes.
Q. And within the span of a few months, you become friends with three convicted drug importers, right?
A. What I will say to that is when I came in here, those were the three Africans that I met. Okeke was the first African that I really met almost from Nigeria. You know, when he was talking to me it was as if I was talking to a brother of mine. So what they were doing, dealing drugs, I never knew they were dealing drugs.
Q. So it’s just a mere coincidence that within the first three months of being in Canada, you associate yourself with three convicted drug importers?
A. Miss, you could go to 159 Wallace or Campbell Street, that was first house I live in Toronto, the landlord there is going to tell you opposite the room I was staying at, there was a Nigerian living there and that is where I met Okeke. I never … that was a coincidence. I came and I live there and I met him. The landlord can bear testimony to that.
Q. Okay. Coincidence that you met Mr. Okeke within the first couple of months?
A. Yes.
Q. Coincidence that you met Mr. Azukakwu?
A. Okeke introduced me to them.
Q. And that was just a coincidence that the two of them being friends were drug importers and you lived with both of them, right?
A. I don’t know what they were doing. I didn’t know what they were doing. He introduced me to somebody, how am I meant to know what the guy was doing.
Q. And a coincidence that you met Mr. Charles, right, another drug importer?
A. Yes.
Q. And you stay in all three of their homes?
A. Yes.
Q. You came to know many things about them?
A. I never … I knew, yes, I knew them. I knew they were living in Canada, I knew where they lived, but I can’t … I don’t really get into any of their business. I’m someone who mind my own business.
Q. Oh, I see. And they take you into their homes. They help you out. They help you find, not only did they let you stay in their homes, they help you find other places to live and they introduce you to fellow Nigerians, right?
A. Yes. [Emphasis added.]
[6] There was no suggestion that either Mr. Okeke or Mr. Azukakwu were connected in any way to the allegations made against the appellant. There was also no allegation that the appellant had any involvement in the drug dealings that had led to the convictions of Mr. Okeke or Mr. Azukakwu. There was no evidence of when these convictions occurred. The appellant also testified that he had no knowledge of the convictions when he was associating with Mr. Okeke and Mr. Azukakwu.
[7] There will be situations in which association with other drug dealers will be relevant to a fact in issue in the prosecution for the importation of narcotics. There will also be cases where that relevance is sufficiently significant to warrant the admissibility of such evidence despite its potential prejudicial effect. Crown counsel referred us to some of those cases, but conceded that evidence that Mr. Okeke and Mr. Azukakwu had been convicted of drug importation had no relevance to any issue raised in the appellant’s trial. I agree with Crown counsel’s assessment.
[8] Not only were the questions irrelevant, they were potentially very prejudicial. I can think of no reason for putting these questions to the appellant other than to suggest the inference that because the appellant associated with drug importers, he was a drug importer and, therefore, had to know that there was cocaine in the vehicle. Counsel for the appellant properly described this line of reasoning as suggesting guilt by association. It offends one of the most fundamental principles of the criminal law. People can only be convicted for what they do, not for the company they keep.
[9] Counsel for the appellant at trial did not make an immediate objection to these questions. The trial judge had previously cautioned both counsel against interrupting cross-examination with objections. Counsel for the appellant did, however, raise the issue prior to the trial judge’s charge to the jury. He indicated that the cross-examination implied “guilt by association” and asked the trial judge for “some rousing charge”. The trial judge acknowledged that the questions concerned him and indicated that he wanted to think about what, if anything, he would say to the jury.
[10] Ultimately, the trial judge made no reference to this cross-examination in his charge to the jury. Counsel for the appellant renewed his request that the jury be cautioned about the risk of improperly inferring guilt from the association with persons who had been convicted of similar offences. The trial judge declined to give the jury the instruction requested by counsel for the appellant.
[11] There was a real risk of significant prejudice to the appellant flowing from the improper questions put by Crown counsel. A firm instruction from the trial judge was required. He should have told the jury that it should never have heard the evidence concerning the convictions of Mr. Okeke and Mr. Azukakwu, and he should have specifically told them that they must guard against drawing any adverse inference against the appellant because of his association with these two persons.
[12] The appellant’s association with Mr. Charles, given that Mr. Charles was allegedly involved in this offence with the appellant, stands on a different footing than the appellant’s association with the other two men. The trial judge did deal to some extent with the evidence of Mr. Charles’ involvement in the importation of narcotics. I need not consider whether those instructions were adequate.
[13] I am satisfied that the improper cross-examination of the appellant by Crown counsel, combined with the trial judge’s failure to caution the jury against drawing the inference that the questions so strongly invited, resulted in a miscarriage of justice and necessitates the quashing of the convictions and the ordering a new trial.
III
The Crown’s cross-examination of Mr. Charles
[14] Although I would order a new trial for the reasons set out above, I will deal briefly with a second argument advanced by counsel for the appellant.
[15] During cross-examination of Mr. Charles, Crown counsel twice suggested that the appellant’s girlfriend would say something different than Mr. Charles had said in his evidence. The questions were framed so as to contain the substance of what the Crown alleged the appellant’s girlfriend would say. The girlfriend was not called as a witness.
[16] Appellant’s counsel argues that the questions were improper and contends that the trial judge should have cautioned the jury against acting on the assumed facts contained in the those questions. He concedes that only one of the two questions was potentially prejudicial to the appellant.
[17] While the format of the questions was not ideal, I do not think there was anything improper with the substance of the questions. I do agree, however, that the trial judge should have told the jury, as many trial judges do, that the evidence comes exclusively from the answers given to the questions by witnesses and not from the contents of the question. The trial judge should have reminded the jury that the appellant’s girlfriend had not testified and that no statements attributed to her by the Crown could have any evidentiary value.
IV
[18] I would allow the appeal, quash the convictions and order a new trial.
RELEASED:”D.D.” “Mar 6, 2002”
“Doherty J.A.” “I agree Karen M. Weiler J.A.” “I agree Louise Charron J.A.”