COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stevens, 2016 ONCA 292

DATE: 20160422

DOCKET: C58578

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Junior Stevens

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Robert Morin, for the respondent

Heard: April 20, 2016

On appeal from the conviction entered on December 13, 2013 by Justice L. Ricchetti of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his conviction on a charge of importing 933 grams of cocaine. He also brings a motion to adduce fresh evidence on the appeal.

[2] The only issue at trial was whether the Crown had proven beyond a reasonable doubt that the appellant knew of the existence of the cocaine found in his suitcase during a customs inspection at Pearson Airport.

[3] The cocaine was secreted in the lining of a binder containing music CDs. Customs Officer Serengelyi (the “Customs Officer)” testified that the binder had attracted his interest due to its weight, the thickness of its covers and his observation that the seams of the covers had been re-glued.

[4] The appellant denied knowledge of the drugs. He claimed the binder had been given to him by a friend in Jamaica for delivery to a third party in Canada.

[5] The appeal centres on a statement allegedly made by the appellant to the Customs Officer. The Customs Officer testified that after admitting that he owned and had packed his suitcase, and while he was inspecting the binder, the appellant volunteered that he had purchased the binder “used” in Jamaica (the “impugned statement”).

[6] The appellant denied making the impugned statement.

[7] Neither party had anticipated the impugned statement as there was no reference to it, either in the Customs Officer’s notes or in his evidence at the preliminary inquiry. At the preliminary, the Customs Officer indicated that without looking at his notes, he could not recall any of the “conversations” he had with the appellant. At trial, the Customs Officer explained that he did not routinely take notes when he was examining baggage and he did not make a note of the appellant’s statement because he did not consider it important at the time. He did not say anything about the statement at the preliminary hearing because he was not asked about it.

[8] The trial judge admitted the statement in evidence before the jury, without conducting a voir dire.

[9] The appellant raises three interconnected grounds of appeal. He submits that the trial judge erred:

(a) in admitting the statement without a voir dire;

(b) in refusing the defence application for a mistrial based on the prejudice caused by the unanticipated evidence in the statement; and

(c) in failing to instruct the jury that the officer’s omission of the statement in his notes went to its ultimate reliability.

[10] We do not accept these submissions.

(a) The admission of the impugned statement without a voir dire

[11] At the outset of the trial, before the Crown opened its case, the defence waived the need to establish the voluntariness of pre-arrest statements made by the appellant to two customs officers. The appellant argues that this waiver of a voir dire was not informed, because he was not aware of the Customs Officer’s evidence about the impugned statement. He points to R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 41, as authority for the duty of the trial judge to ensure that a statement is voluntary notwithstanding counsel’s failure to raise the issue.

[12] Hodgson itself makes it clear that the trial judge does not commit reversible error unless clear evidence existed in the record which objectively should have alerted him to the need for a voir dire notwithstanding counsel's silence. Voluntariness is concerned with the circumstances in which a statement is made. The impugned statement did not affect or change the circumstances in which the pre-arrest statements were made. The voluntariness of the pre-arrest statements having been admitted, the trial judge made no reversible error in not holding a voir dire in relation to the impugned statement. See Park v. R., 1981 CanLII 56 (SCC), [1981] 2 SCR 64 at para. 15.

(b) The denial of the mistrial application

[13] The trial judge’s denial of the mistrial application was a discretionary decision. We cannot interfere unless the decision was clearly wrong or based on an erroneous principle. See R. v. Chiassen, 2009 ONCA 789, at para. 14.

[14] We make no such finding. In dismissing the mistrial application, the trial judge reasonably concluded that any potential prejudice arising from the Customs Officer’s evidence could be addressed through cross-examination.

[15] We reject the appellant’s application to admit as fresh evidence on this ground of appeal portions of the transcript of the Customs Officer’s evidence at the preliminary hearing that were not put to either the witness or to the trial judge on the mistrial application. The transcript was obviously available at trial and other portions of the transcript were put to the Customs Officer in cross-examination. The evidence fails the Palmer test. It was available at trial and could have been adduced with due diligence. It was irrelevant, because it was essentially consistent with the Customs Officer’s evidence at trial. And finally, it could not reasonably have affected the result.

[16] On cross-examination at trial, the Customs Officer admitted that his memory was not good and that the appellant may have said that he “got it [the binder] used”. We agree with the respondent that by the end of the trial the evidentiary value of the statement had been weakened.

[17] In our view, the appellant’s ability to make full answer and defence was not impaired by the admission of the impugned statement.

(c) The charge

[18] The trial judge’s charge was provided to counsel in advance. The trial judge modified it to take into account suggestions made by defence counsel. There was no request by the defence for a special instruction in relation to the impugned statement. There was ultimately no objection to the charge as delivered. The trial judge summarized the evidence of the appellant and the Customs Officer and set out the positions of the Crown and defence concerning the Customs Officer’s evidence. He pointed out that the defence position was that the statement should not be relied upon because it was not in the Customs Officer’s notes and had not been mentioned at the preliminary inquiry. He instructed the jury that a prior inconsistent statement could be a factor in assessing the credibility of a witness. In our view, the appellant has demonstrated no error in the charge.

[19] For these reasons, the appeal is dismissed.

“G.R. Strathy C.J.O.”

“E.E. Gillese J.A.”

“G. Pardu J.A.”