DATE: 20050922

DOCKET: C41965

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – PAULETTE SIMMS (Appellant)

BEFORE:

GOUDGE, FELDMAN AND MACFARLAND JJ.A.

COUNSEL:

Marc E. Schiffer

for the appellant

Steve Coroza and Brian Puddington

for the respondent

HEARD:

September 8, 2005

On appeal from the conviction by Justice Nancy M. Mossip of the Superior Court of Justice dated November 20, 2003 and from the sentence imposed by Justice Nancy M. Mossip dated December 9, 2003.

E N D O R S E M E N T

[1] After a jury trial the appellant was convicted of importing cocaine. She was arrested when cocaine was discovered in her baggage at Pearson Airport as she was returning from Jamaica. At trial, her defence was that she had no knowledge of the cocaine and that it must have been placed in her luggage by someone else.

[2] In our view the trial judge made two errors in charging the jury which necessitate a new trial.

[3] First, at the beginning of her charge, the trial judge sought to explain to the jury that as finders of fact they could not speculate in the complete absence of evidence. All the examples she used were drawn from the defence, in each case inferences from which the defence asked the jury to draw a reasonable doubt. She then told the jury that they could draw inferences only from evidence they accepted as a fact. This would have left the jury with the impression that they could find reasonable doubt as urged by the appellant only if it were based upon evidence they accepted as fact. This is proscribed by R. v. Miller (1991), 1991 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont. C.A.). Moreover, in our view, this charge had the impermissible effect of shifting the burden of proof to the appellant to prove the facts from which a reasonable doubt was to be drawn. Nothing in the balance of the charge was sufficient to correct this for the jury.

[4] Second the trial judge told the jury that there was no evidence that the cocaine was part of some project and they could not therefore draw such an inference. The heart of the defence was that the appellant had no knowledge of the cocaine and it must have been part of someone else’s importing project. It was open to the appellant to raise a reasonable doubt on this basis without proving as a fact that the cocaine was part of someone else’s project. This instruction effectively took that option from the jury.

[5] Given both these errors, there must be a new trial. The appeal is allowed. The conviction is set aside and a new trial ordered.

“S.T. Goudge J.A.”

“K. Feldman J.A.”

“J. MacFarland J.A.”