R. v. Hewitt, 2011 ONCA 702

CITATION: R. v. Hewitt, 2011 ONCA 702

DATE: 20111114

DOCKET: C52964

COURT OF APPEAL FOR ONTARIO

Rosenberg, Rouleau and Karakatsanis JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Jerry Hewitt

Appellant

Jerry J. Hewitt, in person

Paul Burstein, for the appellant

Vanita Goela, for the respondent

Heard: April 12, 2011

On appeal from the conviction entered by Justice Beverly A. Brown of the Ontario Court of Justice, dated August 16, 2010, with reasons given orally.

By The Court:

[1] The appellant, Jerry Hewitt, with the assistance of duty counsel, appeals his conviction by Brown J. for possession of marijuana for the purpose of trafficking. The appellant submits that the trial judge made an error in her assessment of the credibility of an important Crown witness who supported the defence, erred in her assessment of the credibility of the appellant, and misapprehended the import of certain expert evidence. We agree with the appellant. The appeal is allowed, the conviction set aside, and a new trial ordered.

THE PROCEEDINGS

[2] The appellant was charged with two offences: possession of marijuana for the purpose of trafficking and simple possession of MDMA. The appellant pleaded not guilty to the marijuana charge and stood mute when arraigned on the MDMA charge. Consequently, the trial judge entered a plea of not guilty to the MDMA charge.

THE FACTS

[3] On January 6, 2010, the appellant, an inmate of the Toronto Jail, was in the visitors’ area. A correctional officer, Jodhi Alleyne, brought another inmate, Mr. Mumby, to the area. Officer Alleyne did a cursory search of Mumby. She testified that Mumby had a soft-ball-sized bulge in the groin area. She did not do anything about the bulge since she is not authorized to search male inmates in that area of the body. She also thought it might be a hernia, because she had “seen a guy with a hernia before”.

[4] Officer Alleyne briefly left the area but asked other officers to keep an eye on Mumby and the appellant. When she returned, she observed that Mumby was noticeably nervous. He was standing near the appellant, and the officer detected a faint smell of marijuana in the area. Mumby asked to be returned to his unit. Officer Alleyne noticed that the bulge in Mumby’s pants was gone. She asked that the appellant, and two other prisoners who had been in the visitors’ area, be strip searched before being returned to their units.

[5] Officer Alleyne testified that she brought the appellant and the other two inmates into the B Landing where they were separated into two of three interview rooms. One inmate was placed alone in the first interview room and was searched by another officer, Kulwinder Jauha. Meanwhile, according to officer Alleyne, the appellant and the other inmate were placed in the second interview room. Officer Alleyne watched the appellant and the other inmate through a window in the door of the second interview room while officer Jauha conducted the first search in the first interview room. She testified that she had a clear recollection of the location of the inmates on B Landing and who did what. However, she was not sure if the appellant and the other inmate were separated when they were strip searched.

[6] The evidence of officer Jauha was different. He testified that he placed the three inmates in separate rooms and strip-searched each inmate individually in the room where they had been placed. The appellant was the last to be searched. Officer Jauha testified that after searching the appellant and finding nothing, he noticed that the appellant was constantly looking to the back of the room. Officer Jauha went to the back of the room where he found a sock with black packages in it. The appellant immediately said, “That’s not mine.” Officer Jauha placed him in handcuffs and took him to segregation. The sock contained 171.71 grams of marijuana. Officer Jauha also testified that the interview rooms are regularly searched during the day after they are used.

[7] The MDMA charge related to a search of the appellant’s segregation cell on January 11, 2010. During the search, a correctional officer found a package with some drugs in it. The package contained 10.88 grams of MDMA.

[8] The appellant testified. He has a relatively lengthy criminal record. In examination-in-chief and in cross-examination he stated that when he is guilty of an offence he admits to the wrong-doing. He put it this way initially:

More often than not I would plead to anything that I’ve done wrong, whereas if I’m not, if I haven’t been—if I don’t feel I’ve done anything wrong, which I haven’t, then I’m more than willing to say it’s not me.

[9] He testified that the MDMA, and a small amount of marijuana, found in the segregation cell was his. He immediately admitted to senior officers in the institution that the drugs were his. He testified that he had been given the drugs by another inmate and he had secreted them in a body cavity. He explained why an inmate would give away drugs to him. An inmate, who has some drugs, could be getting out of jail. Since the inmate would have no further use for the drugs, he would give the drugs to the appellant because he had been in custody for some time.

[10] The appellant denied that the sock found by officer Jauha was his. He testified that after visiting with his family, he entered the elevator with three other inmates. As they left the elevator, they were told that they were all going to be searched.

One inmate was searched somewhere on B landing while the appellant, and the other two inmates, were placed in one of the interview rooms. The appellant smelled marijuana as soon as he entered the interview room. The other two inmates were removed from the interview room one at a time and, presumably, searched. Officer Jauha then came into the interview room and strip-searched the appellant in the same room. He did not find anything on the appellant. He then left the interview room while the appellant dressed. When the officer returned to the room, he put on a pair of gloves and picked something up. A few minutes later, officer Jauha returned to the interview room with a senior officer and questioned the appellant about what he had found. It was at this time that the appellant said, “That’s not mine.”

[11] The defence conceded that if the appellant was found to have been in possession of the marijuana found by officer Jauha, the full charge of possession for the purpose of trafficking was made out. In spite of this, Crown counsel called Officer Canepa of the Toronto Drug Squad to give opinion evidence. Officer Canepa had extensive experience with drug investigations and the value of drugs on the street. He had limited experience with drug investigations in jails and had only testified twice in relation to prosecutions arising out of drugs found in the jail. That said, the defence conceded that he was an expert in the “use, distribution, and value relating to marijuana in jails, in terms of trafficking and possession”. He testified that while the street value of 171.71 grams of marijuana was about $3,400, in the jail context the resale value was between $25,000 and $34,000. The disparity exists because of the more limited access to drugs in the jail; it is much harder, and much more dangerous, to get drugs into the jail. Given the value of the marijuana, and that such a large quantity could not be stored and kept fresh in the jail setting for any period of time, it was Officer Canepa’s opinion that the marijuana was possessed for the purpose of trafficking. Officer Canepa was not asked the value of the MDMA found in the appellant’s segregation cell.

THE TRIAL JUDGE’S REASONS

[12] The trial judge held that where the evidence of officers Jauha and Alleyne differed, she accepted the evidence of the former. She stated that she was not impressed with officer Alleyne. The first reason she gave for rejecting officer Alleyne’s evidence was that although her notes had been “qualified in the course of her examination” she did not refer to them to refresh her memory. The trial judge said:

She indicated she had provided notes and her notes were qualified in the course of her examination to permit her to refresh her memory and strangely enough, even though many months had passed since the incident, the Court specifically made note of the fact that she did not refer to her notes even once during examination in chief after having been provided the opportunity to do so.

[13] The trial judge was also concerned that even though officer Alleyne had noticed the bulge in Mumby’s pants, she did not ask that he be searched. She considered her statement that Mumby might have had a hernia to be unbelievable. The trial judge noted that officer Alleyne was relatively inexperienced, and that she conceded she did not pay attention to the manner in which the strip searches were conducted. Officer Alleyne did not even know whether two inmates had been strip-searched together, which would have been shocking. The trial judge found officer Alleyne’s evidence that the inmates were kept in the same room unreliable; it did not make sense. Her manner of giving evidence was “somewhat flighty”.

[14] In contrast, officer Jauha was an experienced correctional officer who gave evidence in a professional manner. The trial judge accepted his evidence that the inmates were kept in separate rooms before being searched, and she accepted his version of events rather than the version given by officer Alleyne and the appellant.

[15] The trial judge did not find the appellant to be a credible witness. She relied upon several factors. The first factor she mentioned was his criminal record that included offences of dishonesty. The trial judge then noted that the appellant testified that if he “makes mistakes he never wastes the Court’s time to fight something, that he does not drag out things”. In this case, however, the appellant had not pleaded guilty to the charge of possession of MDMA. She said the following:

In this case, the court notes that when arraigned in relation to the January 11^th charge he did not enter a plea and his lawyer invited the court to enter a not guilty plea. Upon testifying he admitted from the outset of his testimony that he did possess the MDMA, ecstasy that was the subject of the January 11^th charge. The Court does not consider his failure to enter a guilty pea against him, but rather considers it in the context of his testimony with respect to what he does when he is guilty of something and he has made a mistake. [Emphasis added.]

[16] The trial judge then went on to consider the appellant’s explanation as to how he received the MDMA. She did not believe this explanation:

The Court accepts the testimony of Detective Canepa which was not challenged, that drugs in the jail context are valuable and are expensive to acquire. The Court finds Mr. Hewitt’s testimony, that he was given drugs on multiple occasions for free, is incredulous in creating a strong question as to his credibility as a witness.

[17] The trial judge was also concerned about the appellant’s reply when defence counsel put to him the Crown theory that inmate Mumby had passed him the marijuana. Rather than simply denying the allegation, the appellant suggested that the officers should have searched him first: “arguably an answer that had very little to do with the question”.

[18] In all, the trial judge accepted the Crown theory that Mumby had passed the marijuana to the appellant. The appellant brought the package with him when he was placed alone, in the interview room. Officer Jauha’s suspicions were aroused because the appellant kept looking at a corner of the room. As the officer approached the package, the appellant said it was not his, which was evidence of consciousness of guilt.

ANALYSIS

Rejection of Officer Alleyne’s Evidence

[19] Officer Alleyne’s testimony, that two of the inmates were kept together in the same interview room before being strip searched, was important evidence for the defence. That testimony provided an explanation, inconsistent with the appellant’s guilt, for why officer Jauha later found the package in the room. As we have noted, the trial judge’s first reason for rejecting this evidence was that officer Alleyne did not refer to her notes, although she was given an opportunity to do so. In our view, the trial judge misapprehended the record. Admittedly the issue of officer Alleyne’s notes was somewhat confusing. When the officer was asked, at the beginning of her testimony, whether she would like to refer to her notes, she said “yes”. However, the trial judge immediately interjected and suggested that Crown counsel was leading the witness and should reserve questioning about the notes until an issue arose. There was some discussion between the trial judge and counsel about the notes, but in the result, Crown counsel never finished qualifying officer Alleyne’s notes.

[20] On this record, the trial judge’s own interjection meant that it was never clear that officer Alleyne was entitled to use her notes. Thus, her failure to do so could not be used to undermine her credibility. We also note, as pointed out by duty counsel, that the issue of whether the officer reviewed her notes before testifying was never examined. Crown counsel did not, either in examination-in-chief or in re-examination, challenge officer Allenye as to whether her memory was faulty because she did not refer to her notes.

Use of the Appellant’s Failure to Plead Guilty

[21] The trial judge found that the appellant’s decision not to plead guilty to the MDMA charge affected his credibility. The appellant opened up this issue by testifying that when he is guilty of something he admits it. It was certainly open to Crown counsel to challenge the appellant on this assertion, and, in particular, to draw his attention to the fact that he stood mute when asked to plead to the MDMA charge. However, Crown counsel never questioned the appellant about his decision to stand mute rather than plead guilty to the MDMA charge. Thus, the appellant’s assertion that he had immediately admitted his liability to senior officers in the jail stood unchallenged and there was no explanation for why the appellant stood mute.

Improper Use of the Expert Testimony

[22] The trial judge rejected the appellant’s explanation that he received the MDMA as a gift. In doing so, she relied upon officer Canepa’s evidence as to the value of drugs in the jail. However, officer Canepa gave no evidence as to the value of the drugs found in the appellant’s segregation cell. His evidence only covered the value of the large quantity of marijuana found in the interview room. He also provided no opinion as to the reliability of the appellant’s explanation about receiving drugs for free in the jail setting. Crown counsel did not seek to call Officer Canepa in reply to dispute the appellant’s explanation.

Conclusion

[23] Standing on their own, none of the errors committed by the trial judge would be sufficient to overturn this verdict. There were no doubt good reasons to reject the evidence of both officer Alleyne and the appellant. Further, as Crown counsel fairly points out, the trial judge could have arrived at some of her conclusions simply by application of common sense. However, this was a case that turned on credibility and several of the important reasons the trial judge gave for rejecting the exculpatory evidence of officer Alleyne and the appellant do not withstand scrutiny. On this record, we cannot be satisfied that the verdict was a safe one.

DISPOSITION

[24] Accordingly, the appeal is allowed, the conviction for possession of marijuana for the purpose of trafficking is set aside and a new trial ordered.

[25] We wish to express our appreciation to both counsel. Following oral argument of this inmate appeal, Crown counsel obtained the entire transcript of evidence and both Ms. Goela and Mr. Burstein provided very helpful written argument.

Signed: “Marc Rosenberg J.A.”

“Paul Rouleau J.A.”

“Karakatsanis J.A.”

RELEASED: “MR” November 14, 2011