DATE: 20030331
DOCKET: C38540

COURT OF APPEAL FOR ONTARIO

ABELLA, SIMMONS AND ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

YAW MENSAH

Appellant

• and -

THE INCOME SECURITY ADVOCACY CENTRE

Intervener

Counsel:

P. Andras Schreck and Irina Ceric for the appellant

Hugh O'Connell and Chris De Sa for the respondent

Jacquie Chic and Joanne Frenschkowski for the Intervener

Heard: March 19, 2003

On appeal from the conviction by of Justice Lorna-Lee Snowie of the Superior Court of Justice dated October 30, 2001 and on appeal from the sentence imposed by Justice Lorna-Lee Snowie dated January 24, 2002.

SIMMONS J.A.:

[1] The main issue on this appeal is whether the trial judge erred in permitting the Crown to lead evidence that the appellant was receiving Employment Insurance benefits in order to support its position that the appellant had a motive to import heroin into Canada.

[2] On February 12, 2001, the appellant was arrested at Pearson International Airport after returning to Toronto following a trip to Ghana. Customs officers discovered 1.038 kilograms of heroin secreted in the insoles of three pairs of shoes that were found in his possession. Crown witnesses testified that the appellant appeared nervous in the primary inspection area, and that the shoes that he was wearing, which contained more than half of the heroin, were 1½-2 sizes larger than his usual shoe size.

[3] The only disputed issue at trial was knowledge. The appellant testified that a former girlfriend who lives in Ghana gave him the shoes and that he was not aware that they contained heroin.

[4] Apart from the evidence relating to the discovery of the heroin, the Crown relied on evidence of its value and of the appellant's financial situation in an effort to demonstrate that the appellant had a motive to import narcotics into Canada.

[5] In his evidence, the appellant confirmed that he began receiving Employment Insurance benefits in April 2000 and that he supplemented these benefits with a newspaper delivery job at which he earned approximately $300 every two weeks. In October 2000 the appellant completed a forklift operator training course. He said that he was offered a job but deferred accepting it because of a pending trip to Ghana. The appellant testified that the purpose of his trip was to resolve a problem concerning his daughter's immigration to Canada.

[6] On November 27, 2000, the appellant purchased a return ticket to Ghana for $1095. He paid $300 cash and charged the remainder to his credit card. In compliance with Employment Insurance regulations, the appellant did not return his reporting card when he left the country on January 13, 2001. Accordingly, he did not receive benefits during the period of his trip. The appellant had one cent in his bank account when he began his trip, however, he testified that he had $8000 available to him in an open RSP and that he anticipated starting his new job, earning $14 per hour, on the day following his return.

[7] On appeal, the appellant contends, for the first time, that the Crown deliberately led evidence that the appellant was receiving Employment Insurance in order to advance the position that he had a motive to import heroin because he was poor. He submits that the Crown's position was designed to exploit stereotypical views about the economically disadvantaged and that it amounts to a form of propensity reasoning. He says that this evidence is not only prejudicial, it is also of minimal probative value, offensive, and unfair. He contends that the trial judge erred by admitting the impugned evidence and by instructing the jury on the Crown's position[^1].

[8] I agree with the general proposition that evidence that an accused person has a certain level of income, or that he is in receipt of a form of government assisted income, is insufficient, in and of itself, to support an inference that the accused has a motive to commit a profit-motivated crime[^2]. I also agree that such evidence should not be used as the basis for a disguised form of propensity reasoning.

[9] However, in my view, that is not this case. Here, the Crown relied on evidence that while in receipt of employment insurance benefits and other income of approximately $300 every two weeks, the appellant deferred accepting employment and purchased an expensive airline ticket, largely on credit; that when he left for Ghana for a period of almost one month the appellant had no income, one cent in the bank, and $8,000 in an RSP; and that in the 24 day period leading up to his departure for Ghana four overdrafts in the appellant's bank account were covered by credit card transfers.

[10] In these circumstances, in my view, it was open to the jury to find that the appellant was experiencing some financial pressure and that his decision to expend significant funds in order to travel to Ghana was not for the reason that he stated but instead, was to obtain money through crime. Accordingly, the impugned evidence was properly admissible to establish motive and the trial judge was justified in instructing the jury as she did.

[11] The appellant further submits that if the evidence was admissible, the trial judge should have cautioned the jury that it could not be used to show that people who are poor or who are receiving government assistance are the type of people who commit profit-motivated crimes and therefore, that the appellant was more likely, for that reason, to have committed the offence charged.

[12] While there may be cases in which such a warning is called for, I do not consider that the trial judge made any error by failing to so instruct the jury in this case.

[13] The appellant did not object to the impugned evidence at trial. No such instruction was requested and no evidence was led capable of establishing the existence of stereotypical views that could give rise to impermissible propensity reasoning about people who receive Employment Insurance benefits.

[14] Moreover, the trial judge instructed the jury that absence of proven motive supports the presumption of innocence and that it was for the jury to determine whether the appellant had a motive. She pointed out that the appellant denied the allegation of a motive and stated that he had $8,000 available through an open RSP as well as a job waiting for him when he returned from Ghana. In the circumstances, it would have been obvious to the jury that they could not draw an inference of motive based on the singular fact of the nature of the appellant's income.

[15] As no error has been demonstrated, I would not give effect to this ground of appeal.

[16] The appellant's second ground of appeal against conviction is that the trial judge erred by giving the following instruction:

When you begin your deliberations you must evaluate the evidence in a global fashion in an attempt to determine the true facts of the case. In this sense you may make findings of fact from the whole of the evidence which favour the Crown's intent to prove guilt. Conversely, you may make findings of fact from the whole of the evidence which favour the accused, or at least leave you a state of reasonable doubt on essential matters. Secondly, you must relate your evaluation of the whole of the evidence and finding of fact to the essential matter of the case. Specifically, you must ask yourself whether the Crown has proven beyond a reasonable doubt that Mr. Mensah knew that he was carrying a narcotic.

[17] A virtually identical instruction was given in R. v. Vallance, [2000] O.J. No. 4831. I adopt the conclusion of this court in that case that it should not have been given. However, as in Vallance, when this charge is read fairly and as a whole, I think it speculative to suggest that the jury would have been misled as to the requisite burden and standard of proof.

[18] Accordingly, I would not give effect to this ground of appeal.

[19] In the result, I would dismiss the appeal against conviction.

[20] With respect to the appeal against sentence, I agree that it was an error in principle for the trial judge to refer to the appellant's role as a courier as an aggravating factor. In light of the nature and quantity of the drug imported, the appellant's status as a first offender, his previous work history, and the relevant sentencing principles, in my view, the sentence that should have been imposed was nine years imprisonment. After giving credit for pre-trial custody of 20 and one-half months, this yields a total sentence of seven years and three and one-half months imprisonment.

[21] In the result, I would grant leave to appeal sentence, allow the sentence appeal and vary the sentence from nine years and three and one-half months imprisonment to seven years and three and one-half months imprisonment.

Released: March 31, 2003 "RSA"

"Janet Simmons J.A." "I agree R.S. Abella J.A." "I agree Robert Armstrong J.A."

[^1]: The instruction on motive was as follows: I am going to talk to you a little bit about motive. Motive is the reason why someone does something. It is not one of the essential elements that the Crown must prove…Motive is just part of the evidence, one of the many things for you to consider as you determine whether [the appellant] is guilty. A person may be found guilty of importing a narcotic, whatever his motive, or even without a motive. Absence of proven motive, however, is a circumstance for you to consider. One which you may find tends to support the presumption of innocence. A person may also be found not guilty of an offence even with a motive to commit it. It is for you to decide whether [the appellant] had such a motive or any motive at all and how much or little you will rely on it to help you decide this case. With respect to motive, the Crown’s position is that [the appellant] was in need of money and that he went to Ghana with the intention of importing heroin knowing that he would make substantial money from the same. [The appellant] says this is not correct and denies this allegation…

[^2]: The basis for this conclusion is explained in J.H. Wigmore, Evidence in Trials at Common Law, vol. II, Revised by J.H. Chadbourne (Toronto: Little, Brown and Company, 1979), at para. 392: The lack of money by A might be relevant enough to show the probability or A’s desire to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence…