COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marin-Ariza, 2012 ONCA 385

DATE: 20120607

DOCKET: C51989 and C51552

Goudge, MacPherson and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yovanny Marin-Ariza and Luis Sanin

Appellants

Counsel: Brian Snell, for the appellant Yovanny Marin-Ariza Frances Brennan, for the appellant Luis Sanin Thomas Lemon and Peter M. Campbell, for the respondent

Heard: February 28, 2012

On appeal from the conviction entered on November 19, 2009 by Justice T. David Little of the Superior Court of Justice, sitting with a jury.

Goudge J.A.:

INTRODUCTION

[1] On August 23, 2006, the appellant Sanin was charged with importing heroin and conspiring with his co-appellant Marin-Ariza to import heroin. The next day, Marin-Ariza was charged with the same offences. On November 19, 2009, both were convicted as charged by a judge and jury. Marin-Ariza was sentenced to eight years imprisonment. Sanin was sentenced to five years in prison. Both men appeal their convictions.

[2] The charges arose when a package containing heroin was delivered to the apartment of Carlos Cuadra. Cuadra told a police officer that Marin-Ariza had arranged for the importation of this package, and had forced him to accept the package at his apartment. Sanin came to his apartment shortly thereafter to pick up the package. Cuadra’s evidence was central to the Crown’s case. Both accused testified and denied the allegations. The credibility of these three witnesses was thus critical, and was the fundamental issue at trial.

[3] The appellants argue that the charge to the jury was fatally flawed in a number of respects.

[4] I have focused on three of these. The appellants say that the charge gave the jury almost no guidance in deciding the central issue of credibility and indeed was in error in the little help that was provided. They also argue that the trial judge erred in telling the jury that a juror holding a contrary view to the other 11 jurors should reconsider his or her position. Finally they argue that the charge failed to assist the jury by separately identifying the evidence that could link each appellant to the alleged conspiracy.

[5] For the reasons that follow, I agree with these submissions. I conclude that the cumulative effect of the failings in the charge means that the appellants did not receive a fair trial. I would allow the appeal and direct a new trial.

THE FACTS

[6] In August 2006, the police arranged for the controlled delivery of a package to Cuadra’s apartment. It contained a disassembled bath spa, and a crudely forged receipt purporting to show the purchase of a bath spa from a Home Hardware in London, Ontario. The original receipt from which the forgery was derived had a phone number on it that had been Marin-Ariza’s home number two years earlier. The package also contained three bags of heroin totally 433 grams and shipping documents showing that the package had been sent from Venezuela addressed to Jimmy Galicia in London, Ontario. Galacia lived in the apartment with Cuadra and his common-law wife.

[7] On August 23, 2006, Cuadra’s wife was sitting outside the apartment talking to an acquaintance. The acquaintance testified that Cuadra’s wife told her that she was waiting for a package containing cocaine or something from which to make cocaine.

[8] A police officer posing as a delivery man arrived with the package. Cuadra’s wife signed for it and took it to the apartment. After Cuadra returned home, the police raided the apartment and arrested Cuadra for conspiring to import heroin. Cuadra asked to speak to a police officer privately. He told the officer that he and his wife were not involved, but that Marin-Ariza was responsible for shipping the package. He said Marin-Ariza told him the package was on its way and that he had no choice but to receive it.

[9] Shortly thereafter, Sanin arrived at the apartment, explaining that he was there to provide a moving estimate. Cuadra identified him as the “pick-up guy”. He too was immediately arrested.

[10] Cuadra and his wife gave statements to the police at the police station. They were then released without being charged. Because the recording equipment malfunctioned, there was no record of their statements. Marin-Ariza was arrested the next day. Both appellants were then charged with these two offences.

[11] At trial, Cuadra’s evidence was, as the trial judge said, the crux of the Crown’s case. He testified that on one occasion, he could not remember exactly when, he met both appellants at a Tim Horton’s. Marin-Ariza said that he was trafficking drugs and asked if Cuadra knew anyone who could bring drugs across the border. Cuadra said that Sanin was mostly agreeing, but did not say much on this occasion. Cuadra also said that almost a year earlier, he agreed to allow Marin-Ariza to use Galacia’s name on packages although he did not tell Galacia.

[12] Cuadra testified that the package that arrived on August 23, 2006, was the third that Marin-Ariza had sent to his address. The first never arrived because Marin-Ariza arranged for someone to pick it up from the courier, although he later paid Cuadra $200. The second package was picked up by Cuadra at Marin-Ariza’s request and when he gave it over to Marin-Ariza, the latter said that he had been ripped off because the package contained a book but no cocaine. Cuadra testified that he told Marin-Ariza he did not want to be involved in drugs, but was told that a third package was already on its way.

[13] The police testified that at the apartment Cuadra’s cell-phone rang at one point, and Cuadra said that it was probably Marin-Ariza. Cuadra answered and had a conversation partly in Spanish that the police could not understand. Shortly thereafter, Sanin knocked on the door and Cuadra told the police that it was Marin-Ariza’s “pick-up guy”. In addition, there was evidence from telephone records of a number of calls in late July and early August 2006, between Marin-Ariza and Sanin, and between Marin-Ariza and Cuadra, but none between Sanin and Cuadra.

[14] The appellants both testified in their own defence. They denied any involvement with drugs or the shipment of them, or meeting Cuadra at Tim Horton’s. Marin-Ariza said he knew Cuadra because he was a customer at the meat market where Cuadra worked, and they had also operated a sausage cart together for a short time. He knew Sanin because their wives were friends. Sanin testified that he worked for a moving company and took on extra moving jobs on his own time. He said he had gone to the apartment at Marin-Ariza’s request to provide a moving estimate and had met Cuadra only once, at the sausage cart.

ANALYSIS

[15] The appellants’ first argument focuses on the way the charge addressed credibility. The Crown’s case rested on the evidence of Cuadra. The defence rested on the evidence of Marin-Ariza and Sanin. The jury’s central task was to assess the credibility of these witnesses. In this case it was therefore important that the trial judge provide some guidance to the jury in addressing this issue. In my opinion, the charge in this regard came up significantly short in several respects.

[16] To begin with, the trial judge gave the jury almost no assistance in assessing the evidence of an individual witness. In its totality, it was as follows:

The way to do it really, I think, is to talk about this witness. Did you believe the witness? Yes. Why? No? Why? Work on it that way.

[17] There was nothing, for example, about considering whether a witness has a reason not to tell the truth or about the limitations of demeanour, both of which could well have mattered in this case. While appellate courts are reluctant to interfere with this aspect of a jury charge, in the circumstances here, this fell short.

[18] Moreover, the guidance that was given was erroneous in one respect. It told the jury that they could believe or disbelieve a witness. Rather, it should have been made clear to the jury that they could believe all, some or none of any witness’ evidence.

[19] Related to this was the trial judge’s failure to instruct the jury that the principle of reasonable doubt applies to the issue of credibility. As Cory J. said, in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, in a case where credibility is important, as it was here, that instruction is essential. He said this at p. 757:

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

[20] In addition, in the context of the evidence in this case, the instruction quoted above encouraged the jury to choose between the evidence of Cuadra and the evidence of the appellants. Implicit in the instruction quoted above, is an invitation to the jury to accept the evidence of Cuadra or reject it, and vice versa for the evidence of the appellants. A jury cannot approach its fact-finding task by choosing one version over the other.

[21] This invitation to choose one version over the other was made explicit at later points in the charge where the trial judge said:

You have two conflicting stories. Who is telling the truth and who had time to think up the story?

[22] Shortly thereafter, this instruction was repeated:

The issue you have is who do you believe in this case?

[23] Yet another flaw in the charge relating to credibility occurred in the Vetrovec warning given concerning Cuadra. The Crown does not contest the necessity of such a warning.

[24] In my view, the warning fell short in two respects. In explaining to the jury why Cuadra’s evidence required special scrutiny, the trial judge simply said, “Cuadra may well be involved in this”. On these facts that is an inadequately bland description of Cuadra’s strong motive to lie to the police to avoid his own prosecution. Indeed, on any view of the evidence, Cuadra was “involved”. The need for the Vetrovec warning was the concern over whether he was the one importing heroin rather than the appellants, and was lying to save his own skin.

[25] In addition, the charge failed to properly explain the kind of evidence that the jury could look to in order to corroborate Cuadra’s evidence. In the main charge, the trial judge incorrectly told the jury that they could look to evidence emanating from Cuadra and to “all the supporting evidence”. A recharge following counsel’s objection properly clarified that corroborating evidence could not come from Cuadra, but was confused about what could provide corroboration:

So when you are looking for other evidence, you have to think about the names on the receipts at the store and you would have to think about the phone call – I don’t know what all you have to think about – but you would have to have that rather than saying that let us look at Cuadra’s evidence and then say is it supported by something else, not by something that emanates from him...

[26] The reference to a phone call was confusing because it could have been taken to be the one received by Cuadra in the apartment, which was evidence that did emanate from Cuadra. The reference to not knowing what all the jury has to think about as possible corroboration was confusing because it could have been taken to permit them to refer to any evidence as corroboration, which was incorrect.

[27] In summary, credibility was the critical issue in this case. The jury’s fundamental task was to assess Cuadra’s evidence and that of the appellants. The cumulative effect of the inadequacies I have described meant that the charge fell short of giving the jury the necessary guidance to perform this task.

[28] The appellants’ second argument is that the trial judge erred in inviting a juror faced with 11 colleagues holding the contrary view to reconsider his or her position.

[29] The error was described by this court in R. v. Gabie (D.) (1997), 1997 CanLII 1628 (ON CA), 98 O.A.C. 75 and most recently in R. v. Vivian, 2012 ONCA 324. In Gabie (D.) the trial judge said this in exhorting the jury:

If you happen to be in a minority, maybe the -- I don't want to know what size the minority is, large or small, but if you happen to be in a minority, would you be prepared to reconsider your positions in view of the expressed view of the majority? It may be good sense in doing so, and the minority does not have to agree with the majority. There's no question about that.

[30] This court held at para. 9, that this constitutes a serious error:

The second exhortation contained the additional serious error of advising only the minority to reconsider their views. In R. v. G. (R.M.) (1996), 1996 CanLII 176 (SCC), 110 C.C.C. (3d) 26 (S.C.C.) Cory J. explained that such instructions risk introducing irrelevant factors into the jury’s deliberations and coercing some members of the jury to agree with the majority despite their own genuinely held doubts.

[31] In this case, albeit in the charge itself rather than an exhortation, the trial judge fell into the same error given Cory J.’s explanation in R. v. G. (R.M.) of the problem this kind of language creates. I do not think that the damage is lessened when it occurs in the main charge rather than in an exhortation. The language used in the charge in this case gives rise to this very problem. Indeed it implies that it is abnormal for a juror to maintain a genuinely held view in the face of contrary opinions:

However, on the other side of that is, if 11 normal guys think one way, and you think the other way, have a look in the mirror and see why it is, see if there has got to be some reason for it.

[32] The appellants’ third argument addresses the way the trial judge dealt with the charge of conspiring to import heroin.

[33] The trial judge had ruled that because of the wording of the indictment, the Crown had to prove that the appellants conspired with each other, so that if one appellant was acquitted of this charge, the other appellant must also be acquitted of the charge. The Crown did not contest this at trial or on appeal.

[34] Against this backdrop, the appellants argue that the trial judge erred by failing to separately review for the jury the evidence linking each appellant to a conspiracy to import heroin.

[35] I agree with this submission. The strength of the evidence linking Sanin to a conspiracy was considerably weaker than that for Marin-Ariza. It was limited to the phone records showing a number of calls between the appellants, Cuadra’s evidence of the meeting at Tim Horton’s in which Sanin played almost no role, the phone call said to be from Marin-Ariza, and Sanin’s arrival thereafter with the backpack.

[36] The evidence against Marin-Ariza was stronger. It included the same phone records, but also phone records of calls between Marin-Ariza and Cuadra. Cuadra’s evidence also spoke to the greater involvement of Marin-Ariza, including particularly, his role at Tim Horton’s and all his previous interactions with Cuadra.

[37] Since the evidence linking one appellant to a conspiracy to import heroin was considerably weaker than that linking the other appellant, and since failure to prove one of these linkages beyond a reasonable doubt meant acquittal for both appellants, the trial judge should have separately reviewed the evidence against each appellant on this issue: see R. v. Nadarajah, 2009 ONCA 118, 242 C.C.C. (3d) 215.

[38] In summary therefore I conclude that in the three ways I have described, the charge fell short. While each standing alone would not warrant setting aside the convictions, their cumulative effect was sufficient to conclude that the appellants did not receive a fair trial.

[39] This was far from an overwhelming case for the Crown. It is not one that warrants the application of the proviso. In the result I would set aside the convictions and order a new trial.

Released: June 7, 2012 (“S.T.G.”)

“S.T. Goudge J.A.”

“I agree. J.C. MacPherson J.A.”

“I agree. R.G. Juriansz J.A.”