DATE: 20020530 DOCKET: C35751

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - ANDREA ANDERSON (Appellant)

BEFORE:

DOHERTY, GOUDGE AND MACPHERSON JJ.A.

COUNSEL:

David Midanik

for the appellant

Steve Coroza

for the respondent

HEARD:

May 27, 2002

On appeal from the conviction by Madam Justice Moira L. Caswell dated November 24, 2000.

E N D O R S E M E N T

[1] [1] The appellant, Andrea Anderson, with the co-accused, Tony Blair, was charged with the offence of importing cocaine into Canada on June 14, 1999. She was tried before Madam Justice Caswell of the Superior Court of Justice, sitting without a jury. On November 24, 2000, she was convicted and on February 6, 2001 she was sentenced to a term of imprisonment of three years. The appellant appeals against her conviction.

[2] [2] The appellant’s principal ground of appeal is that the trial judge’s verdict was unreasonable because of a number of errors she made. The appellant posits errors in the following categories – misapprehension of the evidence, reliance on improper factors in assessing the credibility of the appellant, and failure to consider the submissions of counsel for the appellant. We do not agree with these submissions.

[1] [3] With respect to the argument relating to misapprehension of evidence, the appellant asserts that the trial judge gave no or insufficient weight to several factors, including that the appellant declared on her customs declaration that she carried more than the legal limit of alcohol, that she carried film in her purse which would undercut her testimony at trial about her contact in Jamaica with John Parris, that she was not nervous at the customs secondary inspection area and that her fingerprints were not on the rum bottles containing the liquid cocaine.

[2] [4] The trial judge did mention the last two of these four factors. She noted, however, that the customs officer at the first inspection site had observed that the appellant had seemed nervous. As for the first two factors, we do not agree that they represent telling points in the appellant’s favour. An honest declaration about the amount of alcohol being imported into Canada is neutral in terms of provoking an inspection; it relates to custom duties, not inspection. The film taken during the week in Jamaica would probably not be connected in any way in the appellant’s mind with the cocaine she was carrying.

[3] [5] In any event, the trial judge carefully reviewed a wide range of factors before concluding that the appellant was guilty of importing cocaine. Crucial to her reasoning was her disbelief of the appellant’s testimony about the reason for her trip to Jamaica (to visit a relative/friend, James Smith) and about the extent of her contact with John Parris in Jamaica. She concluded that the appellant’s testimony on these matters “simply had an air of unreality”. We see no basis for disagreeing with this conclusion.

[4] [6] The appellant asserts that the trial judge relied on an improper factor in her assessment of the credibility of the appellant. In her reasons for judgment, the trial judge said:

Her criminal record, albeit not for crimes of dishonesty, is but one indicia of her inability to tell the truth. She was unable to give the details of her conviction and was even not prepared initially to tell the Court that she had a trial.

[5] [7] We agree with the appellant that the first sentence is, as a general proposition, incorrect and that the second sentence was in fact an erroneous statement of the evidence. However, the trial judge reviewed a great many factors before concluding that she did not believe the appellant’s testimony. Read in their entirety, those factors, especially the appellant’s testimony relating to the purpose of her trip and the extent of her contact in Jamaica with John Parris, amply supported the trial judge’s conclusion about the appellant’s credibility.

[6] [8] Finally, the appellant contends that the trial judge did not take defence counsel’s submissions into account when she rendered her judgment. Defence counsel made his submissions on October 25, 2000. Counsel for the co-accused, Tony Blair, made his submissions on November 3, 2000. On November 3, when court resumed, this exchange took place:

The Court: Alright, thank you, Mr. Andre. I should hear from you Mr. Midanik I think, or should I hear from the Crown with respect to Mr. Blair, how do you wish to proceed?

Ms. Dunlap: I think it’s my turn. Is you Honour asking if Mr. Midanik wishes to respond to anything Mr. Blair – –

The Court: No, no. I was going to ask Mr. Midanik if he wanted to make submissions on behalf of Ms. Anderson.

M. Dunlap: I believe he did that last week before we broke.

The Court: I’ve been doing a few more things since last week, so I apologize, Mr. Midanik. I do have my notes.

Mr. Midanik: Well, Your Honour, I hope once you read them, my submissions will have more impact, reading them the second time having heard them the first time – –

The Court: I’m sorry, Mr. Midanik. That’s not meant to be in any way derogatory. As I say, there has been a few things on my mind. All right, thank you. Now I will hear from you Ms. Dunlap.

The appellant contends that this passage, taken together with trial judge’s reasons for judgment, establishes that the trial judge did not take defence counsel’s submissions into account when she prepared her judgment.

[7] [9] We disagree. The trial judge explicitly stated “I do have my notes” and there is nothing to suggest that the trial judge did not do what all trial judges do when preparing written reasons for judgment after the completion of the trial – namely, review her notes about every aspect of the trial, including the evidence and the closing submissions of counsel.

[8] [10] Moreover, the appellant’s submission on this issue is factually inaccurate. The trial judge did refer explicitly in her reasons to some of the points made by defence counsel in his closing submissions, for example, the absence of nervousness at the secondary inspection site and the absence of the appellant’s fingerprints on the rum bottles.

[9] [11] In conclusion, we do not think that the trial judge’s verdict in this case was unreasonable. The appeal against conviction is dismissed.

“Doherty J.A.”

“S. T. Goudge J.A.”

“J. C. MacPherson J.A.