CITATION: R. v. Phillips, 2008 ONCA 726
DATE: 20081024
DOCKET: C43461
COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and MacPherson JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Alice Irene Phillips
Appellant
Jennifer A.Y. Trehearne, for the appellant
Steve Coroza and Niall Gilks, for the respondent
Heard: September 24, 2008
On appeal from the conviction entered by Justice D. Fletcher Dawson of the Superior Court of Justice, sitting with a jury, dated December 15, 2004, and the sentence imposed on March 7, 2005.
MacPherson J.A.:
A. INTRODUCTION
[1] The appellant, Alice Phillips, was convicted of importing cocaine following a trial before Dawson J. and a jury. The appellant was tried with a co-accused, Julia Grayson. The jury was unable to reach a verdict regarding Grayson, resulting in a mistrial. The appellant received a sentence of five years and four months imprisonment in addition to credit for eight months pre-trial custody.
[2] The appellant appeals her conviction and sentence. Unusually, the principal ground of her conviction appeal relates to an alleged post-verdict incident involving a member of the jury and how the trial judge handled the incident after he became aware of it. The only ground of the sentence appeal is that the trial judge failed to consider the appellant’s co-operation with the police following her arrest when he imposed sentence.
B. FACTS
(i) The parties and events
[3] Alice Phillips was 21 years old in late 2002. She was a single parent of a two year old daughter and lived with her mother. She was a close friend of 22 year old Julia Grayson.
[4] The appellant and Grayson were given plane tickets for a trip to St. Maarten by a man the appellant identified as “Gary”. According to the appellant, after providing the plane tickets, Gary asked the two women to do him a favour by delivering money to one of his friends in Curacao. The appellant asked Gary why he did not wire the money, and Gary explained that this would be too expensive. Gary handed each of the women three envelopes containing money. He suggested that they put the envelopes in the waistband of their pants, which they did. Gary then handed the appellant a card with the name “Serge”, and contact information for him. He told the women that travelling to Curacao from St. Maarten required a one hour flight, which they should pay for with money from the envelopes. The appellant thought that Gary’s request was “kind of strange”, but did not “make much of it” because she knew that people were “always” sending money home to their families in the Caribbean.
[5] The appellant and Grayson flew to St. Maarten and then on to Curacao. They met Serge and gave him the money in the envelopes. They stayed three days in Curacao. On the day of their departure, Serge gave them two new suitcases. The women flew back to St. Maarten and to Toronto the following day.
[6] On November 24, 2002, the two women arrived at Pearson International Airport. Their luggage was searched by Canada Customs personnel. Inside the flaps of both suitcases, customs officials found cocaine – 2533 grams in the appellant’s and 2424 grams in Grayson’s.
[7] The appellant and Grayson were arrested and charged with importing cocaine.
(2) The trial
[8] The trial commenced before Dawson J. and a jury on November 29, 2004. The principal issue was whether the two women knew that there were packs of cocaine sewn into their suitcases. During the trial, there was expert testimony that the street value of the cocaine in the Toronto area was between $495,800 and $618,500.
[9] The jury began deliberating on the afternoon of December 15, 2004. On December 16 at about 12:20 p.m., the jury rendered a guilty verdict with respect to the appellant. The jury then continued its deliberations with respect to Grayson over the lunch and into the afternoon. The trial judge delivered an exhortation, but the jury was unable to reach a verdict. The trial judge declared a mistrial at 4:02 p.m. He discharged the jury.
(3) The post-trial incident and its aftermath
[10] On December 17, 2004, the trial judge received information that two court services officers who had looked after the jury wanted to meet with him in his office about a matter of some concern involving a juror in the trial that had finished the previous day. The trial judge was not comfortable meeting the officers in his office and decided that he wanted a record of the meeting. Accordingly, he arranged for a meeting in a courtroom with a court reporter present. He did not notify the two accused or their counsel of this meeting or invite them to attend.
[11] In the courtroom, the trial judge opened the proceedings with this statement:
THE COURT: I just should say this. This really isn’t sort of court, it’s more in the nature of a meeting. I don’t know what I’m about to hear but I wanted to have a reporter and it really shouldn’t have a style of cause that has anything in the proceedings that we were in before. I think it’s really sort of In the Matter of a Juror or something of that sort. In the Matter of an Inquiry about a juror, and actually I think what I should do is just hear – I have no idea what I’m about to hear really, I’ve just got some vague understanding that there is a matter of some concern and I don’t really want to get deeply involved in any kind of questioning or anything, I just want to hear the basics and thought I should hear it with the reporter present so.
[12] Two people, Marlene Bracciale, a court services office, and Constable Peter McLaughlin, then made statements.
[13] Bracciale explained that the day before, directly after the verdict, she had been contacted by a court services officer named Vic Babinski. Bracciale was Babinski’s supervisor. Babinski told Bracciale that as he was accompanying the jury out of the building after the verdict, he was approached by one juror, Ms. W.[^1] According to Bracciale, Ms. W. advised Babinski that she lived alone with her son and that she feared for her safety because of possible retaliation from other jurors, who had taunted her during deliberations.
[14] Bracciale advised the trial judge that as a result of this information, she asked Constable McLaughlin to speak to Ms. W.
[15] Constable McLaughlin told the trial judge that he left the courthouse and found Ms. W. in her vehicle. McLaughlin said that Ms. W. seemed to be upset, was crying, shaking slightly, and that her voice was trembling a little bit. According to McLaughlin, Ms. W. said that other jurors had threatened to have her kicked off the jury. She also said that during the trial she received hang-up telephone calls, possibly from other jury members. At this point, Ms. W. became very upset. McLaughlin spent some time trying to calm her down. He told her that he had never met someone so upset about being on a jury. In response, Ms. W. said, in a remark that McLaughlin wrote down:
I had a boyfriend 20 years ago. He got caught at the border bringing in drugs. I saw what he went through. I could never put someone else through that. I never could have convicted someone for doing what he did for doing that.
[16] McLaughlin then advised Ms. W. to go home and relax, “just take half a day to sort out her feelings and then to give me a call today.” McLaughlin also told Ms. W. that if there was any investigation into the conduct of a juror, she could contact him. Ms. W. said that was fine and she departed It is common ground that Ms. W. never contacted Constable McLaughlin after this conversation, nor was a police investigation commenced.
[17] The meeting in the courtroom on December 17 ended with the trial judge saying that he needed to think about what to do. He ordered a transcript of the meeting which is six pages.
[18] After the meeting, the trial judge provided a copy of the transcript together with copies of brief statements and notes prepared by Babinski, Bracciale and McLaughlin to Crown counsel and both defence counsel. Counsel for the appellant sent a letter to the trial judge on January 9, 2005 requesting a hearing to have the verdict set aside and a mistrial declared.
[19] On February 1, 2005, a hearing took place before the trial judge. The appellant, her counsel and Crown counsel were present. The Babinski and Bracciale notes and the transcript of the December 17, 2004 meeting were marked as exhibits.
[20] The trial judge commented on the December 17, 2004 meeting in this fashion:
What happened was, on December 17th, another court services officer approached me and said that two of the CSOs – we will use the short form – who had been looking after the jury, wanted to meet with me in my office and tell me something. But I wasn’t advised what it was they wanted to tell me and so, of course, once one’s antennae go up and you’re wondering what it is. But I had no way of knowing whether it was a matter of significance or a trivial matter. I had no way of knowing. But I did know that I didn’t think I should be meeting with them in my office and not having a record of what was said. So when I came into the courtroom, where that transcript was generated that day, that was the first time I had any information from anyone who was directly involved in – in what I was later told about. So it was sort of unfolding in front of me. And it wasn’t really in the nature of an inquiry. If I would have thought there was any reason to hold an inquiry, I would have notified counsel. I’d just – I’d been advised they wanted to talk to me. I had absolutely no idea the significance of it one way or another, and I thought I should hear what they had to say, but I wanted to have a permanent record of it. So I indicated to them that we would treat it as if it was a – just a private – or a discussion in my office, but with a formal record being made. And I – it wasn’t an open court situation. The one, Ms. Bracciale, was – when she was in the room with me, there was just myself and her, and a court reporter, and no one else. And then when the officer came in, she went out. So that’s the – the extent of it. And then once I heard what it was about, my conclusion was the best thing to do was simply send it to counsel and counsel could decide what they wanted to do.
[21] During the discussion which followed, the trial judge indicated that he had done some research and doubted he had jurisdiction to do anything more about the information he had received. Defence counsel acknowledged that the troubling incident on December 16, 2004 had happened after the departure of the accused and both counsel had left the courthouse. She stated: “But I wonder – I wonder why we’re not – we didn’t have an inquiry with respect to that juror.”
[22] In the end, defence counsel confirmed that she wanted to proceed with an application for a mistrial. The trial judge and counsel agreed to set aside two hours for argument on March 7, 2005.
[23] On March 7, defence counsel abandoned the application to set aside the jury verdict and to have a mistrial declared.
[24] None of the trial judge, the Crown, defence counsel or the police took any further steps relating to the December 16, 2004 post-verdict incident.
(4) The sentence
[25] The trial judge reviewed the aggravating and mitigating factors that pertained to Ms. Phillip’s sentence. The aggravating factors included a previous criminal record and the fact that the offence was committed while the appellant was on probation, while the mitigating factors included her youth, her relationship with her young daughter and her mother, fairly steady employment, and an apparent change in attitude in the months between her conviction and the sentence hearing. The trial judge noted the pervasive problem of drug couriers bringing large volumes of cocaine through the airport and observed that appellate courts had set a range of six to eight years imprisonment for importation of multiple kilograms of cocaine.
[26] In the end, the trial judge decided that an appropriate sentence was at the low end of the range. He sentenced the appellant to six years, minus time served on a two-for-one basis, resulting in a sentence of five years and four months imprisonment.
C. ISSUES
[27] The appellant advances five grounds of appeal:
(1) The trial judge erred in the manner in which he inquired into the post-verdict incident involving a member of the jury;
(2) There is evidence in this case to suggest that the impartiality of the jury was compromised as a result of potentially criminal behaviour on the part of one or more of the jurors;
(3) The trial judge erred in admitting evidence of the appellant’s impecuniosity and in instructing the jury that it could consider it as evidence of motive;
(4) The trial judge erred in instructing the jury to consider the appellant’s interest in the outcome of the proceedings in assessing her credibility, thereby eroding the instruction on the presumption of innocence; and
(5) In imposing sentence, the trial judge erred by failing to consider the appellant’s post-arrest co-operation with the police.
D. ANALYSIS
(1) The trial judge’s treatment of the post-verdict incident
[28] The appellant submits that the inquiry by the trial judge on December 17, 2004 into potential problems among jurors, which was conducted in the absence of the appellant and counsel, violated s. 650(1) of the Criminal Code, which provides that “an accused, other than an organization, shall be present during the whole of his or her trial.”
[29] At first blush, the December 17, 2004 meeting does not appear to be part of the appellant’s trial. In R. v. Hertrich, Stewart and Skinner (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (On. C.A.), Martin J.A. provided a fulsome description of the components of a trial, at p. 527:
“[T]rial” for the purpose of the principle that an accused is entitled to be present at his trial clearly includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge’s charge, including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty.
In this case, it is clear that the initial inquiry conducted by the trial judge does not fit within this description.
[30] The appellant attempts to overcome this problem by relying on a line of cases in which the courts have held that, for the purpose of a s. 650(1) analysis, an accused must be present for any part of the proceedings where his or her “vital interests” are at stake. As expressed by Dickson C.J.C. in R. v. Barrow 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694 at para. 21, in a passage that explains both the history and the contents of the “vital interests” principle:
The question of what is included in the trial for purposes of s. 577(1)[^2] was also addressed by this court in Vézina and Côté v. The Queen 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2. Justice Lamer for the court held that the right to be present at trial included the right to be present at an examination of jurors for partiality after the trial had begun. Adopting the reasoning of Martin J.A. in Hertrich, Lamer J. held that the test of what should be included in “trial” was not limited to the presentation of the case against the accused and to matters that directly affected the decision as to guilt or innocence, such as rulings on the admissibility of evidence. For Lamer J., s. 577(1) is triggered whenever the “vital interests” of the accused are at stake, or as Martin J.A. put it in Hertrich, when a decision bears on the “substantive conduct of the trial.” Any question about the partiality of the jurors individually or the jury as a whole reflects on the substantive conduct of the trial and must be dealt with in the presence of the accused. The accused has a right to a fair trial as well as a right to hear the case and make a defence. Section 577(1) protects both rights. In both Hertrich and Vézina, s. 577(1) was infringed when the judge examined jurors for partiality after the trial began and in the absence of the accused.
[31] The appellant submits that when the trial judge convened the meeting on December 17, 2004, the matter before him was a “question about the partiality of the jurors individually or the jury as a whole” and that this affected the “vital interests” of the accused, thus requiring her presence by virtue of the s. 650(1) of the Criminal Code.
[32] The Crown submits that the meeting on December 17 was not an inquiry into the partiality of the juror, but only the means by which the trial judge gathered sufficient information to determine what, if anything, should be done.
[33] In my view, the answer to the appellant’s submission can be stated in a single word – hindsight. The reality is that when the trial judge convened the meeting he knew virtually nothing about what he was about to hear, except that it involved a matter of some concern relating to a juror.
[34] In these circumstances, the trial judge did precisely what was suggested by Lamer J. in Vézina, at para. 19:
I am of the view that if on the facts of a case it is uncertain whether the accused’s vital interests are involved, the judge may in the absence of the accused, investigate the matter. This would include questioning the jurors and, if the judge determines that these vital interests of the accused are not in issue that ends the matter, subject of course to a record being kept of the proceedings in order to determine whether he erred as regards there being uncertainty of what was in issue at the outset and as regards his final determination of the matter. This is what occurred in the Hertrich case. But as of the moment it appears those vital interests are in issue, the issue must be determined in the presence of the accused.
[35] The trial judge convened a meeting that he referred to as a meeting or inquiry, not a trial, and arranged to have a reporter present so that a record of the proceedings could be kept for appellate review.
[36] After he heard the statements by Bracciale and McLaughlin, he deliberated for a time, decided that the “vital interests” of the accused might be at stake, and sent a transcript of the proceedings to counsel. At the request of defence counsel, he then convened a hearing on February 1, 2005 with the accused and counsel present. In my view, in the context of a highly unusual and potentially difficult incident, the trial judge’s thinking and decisions on December 17, 2004 were entirely appropriate.
[37] Moreover, nothing that happened at the December 17 meeting prejudiced the appellant in any way. A full record of the brief proceedings was kept and, in short order, circulated to counsel. When defence counsel indicated that she wanted to apply for a mistrial, a hearing was scheduled for February 1, 2005. Accordingly, on this latter date the appellant was in a good position to take any steps she wanted. She did so. She indicated an intention to make an application for a mistrial. The trial judge scheduled a hearing for the precise date proposed by defence counsel, March 7, 2005. On that date, having reviewed the legal authorities, defence counsel abandoned this application.
[38] In summary, the December 17, 2004 meeting was not part of the trial within the meaning of s. 650(1) of the Criminal Code. Accordingly, the appellant’s presence was not required.
[39] The remaining question is whether the trial judge should have done something more at the hearing on February 1, 2005. Counsel for the appellant, who was not trial counsel, suggests that the trial judge should have interviewed the juror who spoke to the two court officers, even if only to build a record for possible use on appeal. She acknowledges that the purpose of the interview would not have been to lay a foundation for a mistrial application because by February 1, 2005 the trial judge was almost certainly functus officio concerning the guilty verdict: see Head v. The Queen, 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684, and R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857. However, counsel contends that the trial judge should have initiated an interview with the juror with a view to creating a record for later review on an appeal to this court.
[40] I disagree. Although trial counsel was aware of this possibility, she did not request it, preferring instead her proposed mistrial application. In my view, with the accused represented by experienced and capable counsel who had an opportunity to review the entire record of the initial meeting and to consider her options, it would be entirely wrong for this court to impose on the trial judge an investigative role that neither counsel proposed.
(2) Potential criminal behaviour of juror(s)
[41] The appellant seeks to have admitted as fresh evidence in this court the transcript of the December 17, 2004 meeting with a view to it being accepted as proof that Ms. W. was truly afraid of the other jurors, allowing for the inference that Ms. W. did not make her determination in accordance with her conscience. The appellant submits that this was not a case in which, after a number of days of reflection, a juror came to have second thoughts. Nor is it a case in which a juror changed her mind after viewing media reports of the case. Rather, the juror waited at the end of the line to turn in her parking pass, was observed to be upset, and spoke immediately to one officer and then in more detail to another officer in the parking lot.
[42] There is at common law a jury secrecy rule which the Supreme Court of Canada explained in this fashion in R. v. Pan, R. v. Sawyer 2001 SCC 42, [2001] 2 S.C.R. 344 at para. 77:
Statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors’ minds, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict.
[43] The appellant submits that the evidence flowing from Ms. W.’s conversations with Bracciale and McLaughlin is evidence of events extrinsic to the deliberation process and is, therefore, admissible.
[44] In the alternative, the appellant submits that this evidence is admissible by virtue of an exception created in Pan and Sawyer with respect to evidence of a potential offence under s. 139 of the Criminal Code: the obstruction of justice in a judicial proceeding by, inter alia, influencing or attempting to influence by threats a person in her conduct as a juror.
[45] In my view, it is not necessary to consider these submissions on their merits because the evidence of what Ms. W. told Bracciale and McLaughlin is hearsay evidence and, therefore, inadmissible, including in a fresh evidence context: see R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, and R. v. Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321 (On. C.A.).
[46] The appellant concedes that the evidence of Ms. W.’s statements to the two court personnel cannot be admitted under the principled exception to the hearsay rule. However, she urges us to relax those rules in this case because, otherwise, there is no way for this court to explore whether there were any improprieties infecting the jury’s deliberations and verdict. For two reasons, I incline against accepting this submission.
[47] First, there were avenues, in both trial and appeal contexts, to overcome the hearsay hurdle. The trial defence counsel could have asked the trial judge at the hearing on February 1, 2005 to conduct an inquiry and compel Ms. W., and possibly other jurors, to attend and testify about the matters presented by Ms. W.’s conversations. If this had happened, even if the trial judge could not have interfered with the verdict because he was functus, a record would have been created for this court’s consideration on the appeal. Alternatively, appeal counsel could have achieved the same result by invoking s. 683(1)(d) of the Criminal Code, which would authorize this court to hear the same testimony.
[48] Second, the information from Ms. W. currently on the record, as reflected in the six page transcript and three exhibits from the December 17, 2004 hearing, is meagre and fragile. Perhaps what Ms. W. said to the court personnel is true or perhaps it is entirely false; there is no way of knowing on the basis of the present record. It would be wrong to assume the accuracy or truthfulness of remarks made mere minutes after the conclusion of a two-and-a-half week jury trial. At that moment, emotion, stress, uncertainty, anger, exhaustion and even regret might well have been in play. In that vein, I note that Ms. W. did not take up Constable McLaughlin’s invitation at the end of their brief conversation to call him the next day if she wanted to pursue the matter.
[49] For these reasons, I would not admit as fresh evidence the evidence relating to Ms. W.’s conversations with Bracciale and McLaughlin for the truth of their contents.
(3) Evidence relating to the appellant’s impecuniosity[^3]
[50] The appellant contends that the trial judge erred by admitting evidence of her impecuniosity because this evidence might lead to improper propensity reasoning – because the appellant was relatively poor, she might be more inclined to commit a crime for financial gain: see R. v. Mensah (2003), 2003 CanLII 57419 (ON CA), 170 O.A.C. 244. This error was compounded, the appellant submits, by the trial judge’s failure to instruct the jury on how to consider evidence of motive generally or the appellant’s impecuniosity in particular.
[51] I disagree. The evidence about the appellant’s financial situation relied on by the Crown and referred to by the trial judge in his jury charge related to the recent change in the appellant’s employment situation from very good full-time work to sporadic part-time work. This change, not the appellant’s general impecuniosity, was suggested as a possible motive for the appellant’s willingness to be a drug courier. In this respect, this appeal is in fact similar to Mensah where this court upheld the trial judge’s decision to admit evidence of the accused’s deferral of an employment opportunity to suggest motive to be a drug courier.
[52] Moreover, there was no need for the trial judge to provide a general instruction on motive at this trial. The trial judge and counsel engaged in an extensive discussion of the jury charge before it was delivered. They agreed that the crucial, and practically sole, issue was knowledge. This is reflected in the précis prepared by counsel setting out their positions. These were read verbatim by the trial judge to the jury. The main focus of these submissions was knowledge. Finally, the appellant’s counsel, who had been active in the discussion leading up to the jury charge, made no objection after the charge.
(4) The appellant’s interest in outcome and presumption of innocence
[53] The appellant asserts that the trial judge unfairly singled her out for consideration of her credibility in light of her interest in the outcome of the case and that this eroded her presumption of innocence.
[54] I disagree. The trial judge provided a comprehensive list of factors for the jury to use to evaluate credibility. The potential interest of a witness in the outcome of the case was but one factor on the list. The only references by the trial judge to this factor in the rest of the charge occurred when he set out potential inconsistencies between the testimony of the appellant and the co-accused and between the co-accused and other witnesses. In these contexts, the references were appropriate. Finally, the trial judge provided proper instructions relating to the presumption of innocence, reasonable doubt, and the W.(D.) analysis.
(5) The sentence
[55] The trial judge sentenced the appellant to six years imprisonment, consisting of five years and four months of custody and eight months credit for four months of pre-trial custody.
[56] At the time of her arrest, the appellant provided a videotaped statement to the police. The statement was ruled inadmissible on voluntariness grounds at the trial. In the statement, the appellant provided information about ‘Gary’ and ‘Serge’ that, at the sentence hearing, the appellant contended amounted to co-operation with the police. The trial judge did not mention this matter in his reasons for sentence. The appellant argues that this omission constituted an error of law: see R. v. H.(C.N.) (2002), 2002 CanLII 7751 (ON CA), 170 C.C.C. (3d) 253 (On. C.A.).
[57] I disagree. The information provided by the appellant was meagre: one man’s first name was ‘Gary’, ‘George’ or ‘G’ and the second man’s first name was ‘Serge’, ‘Sergio’ or ‘Sergo’; no last names were given; and several of these statements were followed by qualifications like “or whatever his name is” or “something like that”.
[58] Moreover, the information provided by the appellant was of little assistance to the police because almost all of it was easily discoverable from a search of the appellant’s effects upon her arrest.
[59] Finally, the appellant received a sentence of six years. The sentence range for a first time offender acting as a courier in the importation of several kilograms of cocaine is six to eight years: see R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 104 C.C.C. (3d) 542 (On. C.A.). The appellant was not a first time offender. She was also on probation when she committed the importing offence.
[60] In summary, the trial judge did not commit an error in imposing a six year sentence on the appellant.
E. DISPOSITION
[61] I would dismiss the appeal.
RELEASED: October 24, 2008 (“D.D.”)
“J.C. MacPherson J.A.”
“I agree Doherty J.A.”
“I agree J.L. Laskin J.A.”
[^1]: The juror’s identity was made known to the trial judge. However, both appeal counsel have agreed to refer to her as Ms. W. I will respect their agreement.
[^2]: Section 577(1) was the predecessor to s. 650(1) of the Criminal Code.
[^3]: At the appeal hearing, the court did not call on the Crown to respond to issues 3, 4 and 5.