DATE: 20040220

DOCKET: C38158

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ROBERT SHERMAN (Appellant)

BEFORE: DOHERTY, GOUDGE JJ.A. and CAVARZAN J. (ad hoc)

COUNSEL: Brian Snell

for the appellant

Steve Coroza

for the respondent

HEARD: February 17, 2004

ORALLY

RELEASED: February 17, 2004

On appeal from the conviction entered by Justice M. Caswell of the Superior Court of Justice, sitting with a jury, dated October 17, 2001 and the sentenced imposed dated November 19, 2001.

E N D O R S E M E N T

[1] The appellant was convicted of importing 603 grams of heroin into Canada and importing a weapon (a switch blade) into Canada at the same time. He received a 12 year sentence on the heroin charge and a sentence of 1 year consecutive on the weapons charge. He appeals conviction and sentence.

The Conviction Appeal

[2] The heroin was allegedly found wrapped in the appellant’s shoe when he entered Canada. In the course of the cross-examination of the officer who allegedly discovered the drugs, counsel asked the officer about the condition of one of the shoes which had obviously been cut. The officer in explaining the condition of the shoe, referred to something called a narcotics identification kit (N.I.K.) and a test that had been performed to determine whether there was heroin in the shoe. Counsel asked further questions on cross-examination about this test, apparently in an attempt to show that the officer had not actually participated in the test as he had indicated in his testimony. In re-examination, Crown counsel was allowed to ask the officer to briefly explain the N.I.K. The officer indicated that it was a field test used to “confirm a suspicion” of the presence of heroin.

[3] At trial, the defence contended that the Crown had not proved beyond a reasonable doubt that the heroin sent to the R.C.M.P. lab and analyzed had in fact come from the appellant’s shoe. This was the central issue at trial. The defence challenged the credibility of the investigating officer P.C. Armstrong, relying on his preliminary inquiry testimony, which was significantly different from the evidence he gave at trial concerning the colour of the shoes from which he had taken the heroin. This officer offered an explanation for that inconsistency. This officer had nothing to do with the N.I.K. test.

[4] We see no error in the admission of the evidence concerning the N.I.K. test. In our view, it flowed naturally from counsel for the appellant’s questions about the condition of the shoe. We also think it was appropriate that the Crown be allowed to offer some explanation as to what this test was and we see nothing inherently prejudicial in the explanation offered on re-examination.

[5] It is clear that the evidence concerning the N.I.K. test could not assist the Crown in establishing that the cocaine tested at the lab came from the appellant’s shoe and could not be used by the Crown to prove that the appellant was in possession of cocaine. After anxious consideration, we are satisfied that the trial judge did make it clear to the jury that the N.I.K. test results could not assist them in determining the crucial issue at trial. We rely on two passages from her instructions:

As well, Constable Tangney did what is called a N.I.K. test, which revealed the substance to be heroin. I should say that Constable Tangney took part in a N.I.K. test and the whitish powder tested positive for heroin. The evidence concerning the N.I.K., members of the jury, is not irrelevant, but I need to inform you that the N.I.K. test is a superficial screening device. Its results do not establish that the whitish powder is heroin. You must look to the two certificates of analysis and the chain of continuity, if accepted by you, as set out in Constable Armstrong’s evidence.

In this case, it is my view you should have no difficulty in concluding that the substances analyzed is heroin. The onus remains on the Crown to prove this fact beyond a reasonable doubt as the Crown is required to prove that the chain of continuity, starting with the shoes, the black shoes continue to this court and that what is before you is what was contained in the black shoes. [Emphasis added.]

[6] Based on these instructions, we are satisfied that the jury would not have used the N.I.K. results in resolving the crucial question of continuity. Their verdict indicates that they were satisfied beyond a reasonable doubt that the Crown had established the necessary continuity. The conviction appeal is dismissed.

The Sentence Appeal

[7] We agree with counsel’s submission that the trial judge should not have considered the possession of the weapon as an aggravating factor on the charge of importing heroin and then gone on to impose a consecutive sentence on the charge relating to the possession of the weapon. In our view, while a consecutive sentence for the weapons charge may have been appropriate given that Parliament has set a mandatory minimum penalty for the offence, a consecutive sentence combined with reference to the possession as an aggravating factor on the importing charge was not appropriate. The easiest way to correct this error at this point in time is to make the sentence on the weapons charge concurrent resulting in a total sentence of 12 years. The appeal from sentence is allowed. The 1 year consecutive sentence on the weapons charge is made concurrent to the 12 year sentence on the importing charge.

“Doherty J.A.”

“S.T. Goudge J.A.”

“John Cavarzan”