DATE: 20041005
DOCKET: C39772
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) -and- ELIZABETH MARY GOULART-NELSON (Appellant)
BEFORE: LABROSSE, LASKIN and JURIANSZ JJ.A.
COUNSEL: Frank Addario for the appellant Croft Michaelson for the respondent
HEARD: September 30, 2004
On appeal from the conviction entered by Justice Nancy M. Mossip of the Superior Court of Justice, sitting with a jury, on February 13, 2003.
E N D O R S E M E N T
[1] The appellant appeals her conviction, by a court composed of a judge and jury, for importing cocaine.
[2] The appellant went to St. Lucia and returned to Canada on July 21, 2001. On that date, St. Lucian customs officers Pultie and Joseph observed a slim, white female with a tattoo on her ankle, who appeared to be traveling alone. She was carrying a green duffel bag and pulling a silver suitcase with a multi-coloured strap around it. The customs officers’ attention was drawn to the suitcase because several weeks earlier a similar suitcase was investigated by them and found to contain cocaine. The suitcase was checked in and was later found to have a baggage tag which bore the name “NELSONGOULAR” and contained 14 kilograms of cocaine.
[3] The customs officers attempted a controlled delivery at the Toronto airport, which was not successful as the suitcase was not claimed once it arrived. The appellant, whose name is Goulart-Nelson and who appeared to match the description given by the St. Lucian customs officers, was arrested before leaving the airport.
[4] This trial essentially turned on the jury’s assessment of the reliability and credibility of the two customs officers in St. Lucia. If the jury found that the appellant had checked-in the suitcase, the offence was made out. We would dismiss the appeal.
[5] The appellant raises four grounds of appeal:
intelligence hearsay was inadmissible to connect the appellant to the suitcase;
the baggage tag on the suitcase was inadmissible for the truth of its contents;
the jury should have been warned about the danger of acting on the photo lineup identification; and
evidence of the appellant’s demeanour should not have been admitted.
1) Intelligence hearsay was inadmissible to connect the appellant to the suitcase
[6] A Canadian customs officer testified that she was told that the appellant would say that she had not checked any bags. The appellant contends that there was a realistic risk that the jury would have concluded that the customs officer had specific intelligence that the appellant would deny checking any bags. The source of that information was never revealed and therefore that evidence was inadmissible hearsay that should not have been admitted.
[7] This evidence was not admissible. However, the Crown points out that the appellant’s counsel at trial did not ask that this evidence be excluded or that the trial judge provide a limiting instruction.
[8] In our view, the logical inference from this evidence was that the St. Lucian customs officers were the source of this information and that it was a common inference drawn from the facts known by these officials.
[9] In any event, we are not persuaded the evidence in question, which barely amounts to five or six lines in the entire transcript and was not highlighted by the Crown, could have prejudiced the appellant.
2) The baggage tag on the suitcase was inadmissible for the truth of its contents
[10] The evidence of Pultie and Joseph established a connection between the appellant and the suitcase, and the baggage tag was therefore properly admissible as circumstantial evidence which the jury was entitled to consider in concluding that the appellant was the person who was observed checking-in the silver suitcase. We would not accede to this ground of appeal.
3) The jury should have been warned about the danger of acting on the photo lineup identification
[11] The trial judge reviewed the identification evidence in great detail. She properly and adequately instructed the jury on the frailties of eyewitness identification evidence, including the photo lineup identification. Much emphasis was placed by counsel for the appellant on the recommendations made in the Sophonow Inquiry. Those recommendations are persuasive tools to avoid wrongful convictions arising from faulty eyewitness identification. However, as stated by Arbour J. in R. c. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445:
What will be required to displace the danger that the jury will give an eyewitness identification weight that it does not deserve will vary with the facts of individual cases.
[12] In the present case, a stronger warning may have been appropriate, however, the charge was not so deficient as to constitute an error of law. We would also not give effect to this ground of appeal.
4) Evidence of the appellant’s demeanour should not have been admitted
[13] Trial counsel did not object to the admissibility of the evidence of demeanour which was led by the Crown.
[14] The evidence that the appellant turned her head and her eyes started to tear before the suitcase was opened was properly admitted as circumstantial evidence tending to establish that she was aware of its contents.
Conclusion
[15] In closing, we note that the issues raised by the appellant did not form the basis of any objection at trial. In our view, the Crown had a strong case. We also note that the appellant did not call evidence at trial.
[16] We would therefore dismiss the appeal.
Signed: “J.-M. Labrosse J.A.”
“John Laskin J.A.”
“R.G. Juriansz J.A.”