- DATE:20020422 DOCKET: C34938
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) -and- CALVIN MAURICE (Appellant)
BEFORE:
LASKIN, ROSENBERG and GOUDGE JJ.A.
COUNSEL:
Peter Copeland,
for the appellant
Andrew Sabbadini,
for the respondent
HEARD:
April 3, 2002
RELEASED ORALLY:
April 3, 2002
On appeal from conviction imposed by Justice Patricia C. Hennessy dated June 8, 2000, and from the sentence imposed by Justice Hennessy dated September 7, 2000.
E N D O R S E M E N T
[1] There were a number of serious errors in this trial. The Crown relied upon constructive possession to prove the charge. It was therefore required to prove control as an element of the offence. Control was a live issue in this case given the timing of the events, the circumstances of the police stop and the place where the drugs were found in the car. In answering the jury’s question about the definition of possession, the trial judge merely gave the jury excerpts from the Criminal Code, which make no reference to the element of control. The trial judge also failed to instruct the jury to take into account her earlier instructions on possession in which she had mentioned the element of control. The importance of correctly and fully answering jury questions has been repeatedly stressed by the Supreme Court of Canada. See for example R. v. S. (W.D) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 S.C.C.
[2] The trial judge also erred with respect to the procedure for answering the jury’s questions. The trial judge should have followed the procedure set out in R. v. Dunbar and Logan (1982), 1982 3324 (ON CA), 68 C.C.C (2d) 13 (Ont. C.A.) and heard submissions in open court in the presence of the appellant.
[3] Over objection by the defence the crown was permitted to lead evidence from an intelligence officer that the appellant’s car was briefly seen at a house occupied by persons suspected by the police, based on informer information, of being drug traffickers and associated with the motorcycle gang suspected of controlling drug trafficking in the Sudbury area. This evidence was inadmissible opinion based on inadmissible hearsay and was nothing less than an attempt to establish guilt by association. See R. v. Ejiofor, [2002] O.J 891 (C.A.). This evidence was highly prejudicial and yet was left to the jury as evidence from which they could infer knowledge. There were no legitimate inferences that could be drawn from this evidence on the issues in this case.
[4] Accordingly, the conviction cannot stand. The appellant argues that an acquittal should be entered as the verdict was unreasonable. In our view, there was evidence upon which a jury properly instructed could easily convict. The drugs were in a fairly large clear plastic package and were found in plain view in the back seat of the appellant’s car. It would be open to a jury to find that the appellant had the requisite knowledge and control.
[5] Accordingly, the appeal is allowed, the conviction set aside a new trial ordered.
“Laskin J.A.”
“Rosenberg J.A.”
“Goudge J.A.”