Court of Appeal for Ontario

Date: 2017-03-20 Docket: C60408

Judges: Doherty, Huscroft and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Candice Dwyer Appellant

Counsel

Breana Vandebeek, for the appellant

Surinder Singh Aujla, for the respondent

Heard and released orally: March 20, 2017

On appeal from: the conviction entered on January 12, 2015 by Justice Sproat of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant was convicted of importing cocaine into Canada. She appeals conviction only.

[2] There is one ground of appeal.

Did the trial judge err in refusing the defence request for a good character instruction?

[3] The adequacy of a jury instruction is measured by reference to the specific issues raised in the case and the evidence adduced by the parties. This was a one issue case – had the Crown proved beyond a reasonable doubt that the appellant knew there was cocaine in her purse when she entered Canada at Pearson Airport?

[4] The appellant testified and denied that she knew the cocaine was in her purse. She explained that her friend had given her the purse shortly before she left St. Lucia. It was the defence position that this person had befriended the appellant intending to use her to smuggle two kilograms of cocaine into Canada.

[5] In her evidence in-chief, the appellant indicated that she had no criminal record and described her positive educational and employment background. She was not cross-examined on these matters.

[6] The trial judge instructed the jury that the Crown was obligated to prove that the appellant knew that the drugs were in her purse. He told the jury that the Crown had to prove knowledge beyond a reasonable doubt and that the jury should consider all of the evidence relevant to that issue, including the appellant's evidence. The trial judge then specifically highlighted five areas of the evidence "relevant to knowledge" at the same time emphasizing to the jury that it could consider other parts of the evidence referred to by counsel. The five areas highlighted by the trial judge included the following:

…the evidence of Ms. Dwyer that she had no criminal record and was employed at this time in her own business …

[7] In our view, the jury would have understood that the appellant's positive antecedents and absence of any criminal record could support the inference that she did not know that she was bringing cocaine into Canada. The trial judge's instruction that her absence of criminal record and background were "relevant" to knowledge could not be taken by the jury in any other way.

[8] Later in his instruction, the trial judge summarized the appellant's evidence, including her background and her evidence that she had no criminal record. Shortly afterwards, in summarizing the position of the defence, the trial judge indicated that the defence position that the appellant's evidence could be relied on was supported in part by the evidence of her background. He indicated:

Ms. Dwyer's testimony in court accounted for all the pieces of the evidence. She was cooperative with the police at the time of the investigation. Her evidence in court was challenged, but uncontradicted. It was both internally and externally consistent. She was also gainfully employed at the time, and has no criminal record. The defence says that Ms. Dwyer was simply a truthful witness.

[9] In our view, the trial judge properly treated the evidence of the appellant's background and absence of any criminal record as relevant to the issue of knowledge and the appellant's credibility. The reference to the evidence within the context of the instruction on knowledge was appropriate given the nature of the case and the fact that knowledge was the only live issue at trial. A separate, more general, character evidence instruction was unnecessary, probably redundant, and potentially confusing.

[10] It follows from our assessment of the charge that we cannot accept the argument that trial counsel was somehow misled in making his closing submissions by the contents of the email provided by the trial judge outlining his initial reasons for declining to give a character evidence instruction. We repeat, no character evidence instruction was necessary given the instruction on knowledge.

[11] We should not be taken from these reasons as accepting that an accused who testifies that he or she has no criminal record necessarily puts his or her character in issue for all purposes. In our view, that is an open question in this court.

[12] The appeal is dismissed.

"Doherty J.A."

"Grant Huscroft J.A."

"B.W. Miller J.A."