Court of Appeal for Ontario

CITATION: R. v. Curtis, 2016 ONCA 685

DATE: 20160916

DOCKET: C62219

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Krista Curtis

Appellant

Paul Calarco, for the appellant

Jeremy Streeter, for the respondent

Heard: September 12, 2016

On appeal from the conviction entered on October 26, 2015 and the sentence imposed on April 19, 2016 by Justice Nathalie Gregson of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals her conviction for possession of fentanyl for the purpose of trafficking and failing to comply with a recognizance by having a cell phone.

[2] The appellant was arrested about three and a half hours after being observed meeting with a known drug user and exchanging a small item for cash. Upon her arrest, the appellant was found in possession of four fentanyl patches. Although the appellant had a prescription for fentanyl, the patches were not found in her purse where two bottles of prescription medication were located, but rather in a plastic baggy hidden in the folds of her stomach skin.

[3] The police also found a cell phone in the appellant’s purse. This was in breach of her bail terms as the phone had to have been registered with the police within 48 hours of it being acquired and it was not.

[4] The appellant advances three grounds of appeal.

[5] First, she argues that the trial judge erred in relying on hearsay from an informant as proof of the substantive elements of the drug offense.

[6] The Crown agrees that the trial judge erred in relying on the information received from an informant but argues that, quite apart from the hearsay, the evidence in support of the conviction was overwhelming. The Crown maintains that this is an appropriate case to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. We agree.

[7] In our view, even without the trial judge’s reference and apparent reliance in his reasons on hearsay from an informant to the effect that the appellant “may have had involvement with illegal drugs”, there is no reasonable possibility that the verdict would have been different.

[8] In R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 617, the Supreme Court of Canada asserted that the curative proviso can only be applied where there is no “reasonable possibility that the verdict would have been different had the error at issue not been made”. In R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 56, Moldaver J. reminded appellate courts that, when considering the application of the proviso in a circumstantial case:

it is necessary to look at the whole of the admissible evidence in assessing the strength of the case. It is not the task of an appellate court to parse each item of evidence in search of a possible innocent explanation. If that were so, it would be virtually impossible to ever satisfy the second branch of the proviso in a circumstantial case.

[9] Aside from the impugned evidence, the trial judge relied on the observed hand-to-hand transaction by the appellant with a known drug user carried out in a gravel parking lot some three and a half hours prior to her arrest and noted that when she was arrested she had a cell phone and cash in her purse and a second cell phone was found in the back seat of the vehicle. More importantly, the trial judge relied on where and how the drugs were found.

[10] If the appellant had been holding the drugs for a valid purpose, she would not normally have become nervous when the officer conducting a body search asked her to lift up her stomach skin. It is only upon her having lifted her stomach skin that the drugs contained in a baggy were revealed. It simply defies logic and common sense that someone with a valid prescription for fentanyl who is holding it for personal use and not to traffic would choose to hide it in this manner. It is also incongruous given that she kept two prescription bottles of medication in her purse.

[11] The second and third grounds of appeal relate to the conviction for failure to comply with a recognizance. The appellant submits that the trial judge erred in permitting the Crown to lead evidence of a statement made by the appellant regarding her cell phone without a voir dire to establish the voluntariness of that statement and in failing to consider exculpatory evidence contained in that statement.

[12] We do not give effect to these grounds of appeal. We agree that, in the absence of any attempt at establishing the voluntariness of the statement, the appellant’s statement should not have been entered into evidence. That error, however, is harmless as the trial judge did not rely on it in convicting the appellant.

[13] The failure to comply conviction rested on the examination of the cell phone, which examination revealed that a text message had been sent to the appellant two weeks prior to her arrest, and on the evidence of Detective Sherriff to the effect that the police had no record of the cell phone having been registered.

[14] As for the exculpatory evidence relied on by the appellant, it consists of a statement by her that she had only had the cell phone for two days and had not had time to register it. That statement was proven wrong by the objective evidence of the cell phone examination and was properly rejected by the trial judge.

[15] In conclusion, we consider the errors to have been harmless and that this is an appropriate case to apply the curative proviso. The appeal is therefore dismissed.

“Eileen E. Gillese J.A.”

“Paul Rouleau J.A.”

“David Brown J.A.”