Court of Appeal for Ontario

Citation: R. v. Rhooms, 2016 ONCA 738

Date: 2016-10-06

Docket: C59011

Judges: Laskin, Gillese and Watt JJ.A.

Between:

Her Majesty the Queen Respondent

and

Marlon Rhooms Appellant

Counsel:

B. Vandebeek and Mark C. Halfyard, for the appellant

James Clark, for the respondent

Heard and released orally: September 28, 2016

On appeal from the conviction entered on March 28, 2013 and the sentence imposed on June 30, 2014 by Justice McWatt of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his conviction for possession of cocaine for the purpose of trafficking. He makes three submissions in support of his appeal:

(1) The trial judge erred in refusing to grant a mistrial because the Crown’s expert was asked and answered a question disapproved of by the Supreme Court of Canada in R. v. Sekhon, 2014 SCC 15;

(2) The trial judge erred in admitting Dr. Bosman’s evidence that the appellant had given a statement to the effect “I have done this before and nothing happened”; and

(3) The trial judge erred in refusing to grant an adjournment so that the defence could call an expert on cocaine toxicity.

[2] We do not accept the appellant’s submissions. Generally, all three submissions challenge discretionary rulings of the trial judge. A trial judge’s exercise of discretion is, of course, entitled to deference in this court, and we have not been persuaded she exercised her discretion unreasonably.

[3] On the appellant’s first submission, the trial judge agreed, in the light of Sekhon, that the question “have you come across this method of coercion” and the answer “no” were improper. However, following the suggestion of Moldaver J. at para. 48 in Sekhon, she chose to give the jury a remedial instruction, an instruction she gave twice. The appellant contends that the context for the improper question and answer in this case were sufficiently different from the context in Sekhon, that a mistrial was warranted in this case. We do not agree that any differences in context justified ordering the drastic remedy of a mistrial. The trial judge’s choice of remedy – a direct instruction to the jury not to consider the evidence – was sufficient.

[4] On the appellant’s second submission, we agree with the trial judge that the appellant’s statement as related by Dr. Bosman was admissible. The context for the statement was obvious. The appellant was in the hospital and was responding to the question why he had swallowed the cocaine. His answer was highly probative because it explained why he had acted the way he did in swallowing the cocaine, and it went directly to the issue of voluntariness, the core of the excuse of duress, which was a central issue in this case. Thus any prejudice flowing from the admission of the appellant’s statement was outweighed by its probative value. Finally, on this issue, no remedial instruction was sought, and no objection was made to its absence in the charge. Indeed, in the context of the appellant’s duress claim, no remedial instruction was required.

[5] On the appellant’s third submission, we are not persuaded that the trial judge’s refusal to grant an adjournment was unreasonable. It was open to the trial judge to conclude that the appellant ought reasonably to have foreseen the need for an expert if he really wanted to call one. The trial judge was justified in proceeding with the trial.

[6] Accordingly, the appeal from conviction is dismissed. The appellant did not pursue his sentence appeal, and that appeal is dismissed as abandoned.

“John Laskin J.A.”

“Eileen E. Gillese J.A.”

“David Watt J.A.”