Court of Appeal for Ontario

Date: September 25, 2017 Docket: C58505 Judges: Gillese, van Rensburg and Brown JJ.A.

Parties

Between

Her Majesty the Queen Appellant

and

Philip Wezley Sargeant Respondent

Counsel:

David Littlefield and Holly Akin, for the appellant
Carlos F. Rippell and Diana M. Lumba, for the respondent

Heard: April 3, 2017

On appeal from the acquittal entered on February 21, 2014, by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a jury.

Judgment of Gillese J.A.

OVERVIEW

[1] This appeal was heard with the companion appeal, R. v. Gopie, 2017 ONCA 728.

[2] Philip Wezley Sargeant and his co-accused, Albert Samuel Gopie, were jointly tried on one count of conspiracy to import a narcotic and one count of importing a controlled substance (cocaine). The jury convicted Gopie of the conspiracy count and acquitted Sargeant of both counts. Gopie was sentenced to 9 years in prison.

[3] The companion appeal is Gopie's appeal against conviction and sentence.

[4] This is the Crown's appeal of Sargeant's acquittal. The Crown raises two issues on appeal. First, it submits that the trial judge wrongly excluded evidence tying Sargeant to the conspiracy. Second, it submits that the trial judge erred by imposing a reasonable doubt standard at step two of the Carter test.

[5] Sargeant submits that the trial judge did not make the alleged errors and, even if such errors were made, they could not have affected the verdict. Accordingly, he asks that the appeal be dismissed. Alternatively, if this court is inclined to allow the Crown appeal and order a new trial, Sargeant asks that the proceedings be stayed based on the s. 11(b) Charter application (the "Application") that he and Gopie brought before trial. Like Gopie, Sargeant says that the Application was wrongly decided.

[6] For the reasons that follow, I would dismiss the Crown appeal against acquittal. In the companion appeal, I explain why, in my view, the application judge did not err in dismissing the Application.

BACKGROUND

[7] The factual background is set out in the Gopie judgment and will not be repeated here. It is sufficient to note that the charges related to 7.85 kilograms of cocaine that were found in Tara Fraser's luggage when she returned to Montreal after a one-week stay in St. Maarten. Fraser was one of two drug couriers involved in the conspiracy. The other alleged drug courier was Melissa Gittens. Although Fraser and Gittens did not meet until the end of the week in St. Maarten, they each took the same flights to and from St. Maarten.

[8] To the extent that additional facts are required to dispose of the issues raised on this appeal, they are set out in the analysis of those issues.

WAS RELEVANT EVIDENCE WRONGLY EXCLUDED?

[9] The Crown submits that the trial judge wrongly excluded evidence: (1) of Randy Datta, the travel agent who sold the return tickets for Fraser's and Gittens' flights to St. Maarten; (2) of a statement that Gittens made to Fraser on the return flight from St. Maarten; and (3) about the name Rasta, Sargeant's purported nickname.

(1) The Travel Agent's Receipt from "Paul"

[10] At trial, the Crown sought to tender evidence from Datta. Datta testified on a voir dire that a customer who identified himself as Paul Gomes bought tickets for several return trips between Montreal and St. Maarten and that a travel receipt for Paul from July 2009 (the "July Receipt") listed his address as 25 Martha Eaton Way (the "Address").

[11] Paul purchased the tickets for Fraser's and Gittens' return flights from Montreal to St. Maarten in November 2009. There was no record of a receipt for this transaction.

[12] If not excluded, Datta would have testified that Paul was probably Sargeant and he would have given the evidence about the July Receipt.

[13] The trial judge ruled that Datta could not give the identification evidence because the photo line-up procedure had been tainted. The Crown does not appeal that ruling.

[14] The Crown does, however, submit that the trial judge erred in excluding Datta's evidence about the July Receipt.

[15] The trial judge said the following when he excluded the evidence of the July Receipt:

But – I'm having difficulty with that coming in. I mean, you could ask [Datta] about the, the particulars of his, his meeting with [Paul]. But I think the relevant time period is this, is this transaction. If he, at the time that these tickets were purchased, you know, did he, did he provide any other details. I think that would get us closer to a probative evidence although it would still be hearsay coming from Paul Gomes who, according to my ruling, [Datta is] not going to be able to say it's the accused before the court. So that's the difficulty I'm having with the, the temporal connection and that being a hearsay document coming in. And it's not the address that's given on the other one.

[16] While not perfectly expressed, in my view, in excluding the evidence of the July Receipt, the trial judge exercised his discretion based on a weighing of the probative and prejudicial value of that evidence. I would not interfere with the exercise of that discretion.

[17] It is important to begin by placing the ruling in context.

[18] When the Crown raised the admissibility of the July Receipt, she did not give a clear indication of the basis on which she sought to have it admitted nor did she offer the court any authority justifying its admission.

[19] Ultimately, the Crown chose not to call Datta as a witness before the jury. Instead, Datta's evidence went in as an agreed statement of facts. The agreed statement of facts did not include a statement indicating that Paul had given Datta the address when purchasing tickets other than those for Fraser and Gittens.

[20] Several days elapsed between when the Crown first raised the admissibility of the July Receipt and when it introduced Datta's evidence by way of the agreed statement of facts. On a full and fair reading of the transcript, it is clear that the Crown could have raised again, with the trial judge, the admissibility of the July Receipt in that intervening period. Had the Crown sought to have the ruling revisited, she could have offered a coherent basis and authority for its admission. The Crown did not do so.

[21] In any event, I do not accept that the trial judge erred in his comments about the lack of a temporal connection between the July Receipt and the transaction in November in which "Paul" purchased tickets for Fraser's and Gittens' trips to St. Maarten. While Fraser did first meet with Ernest Wilson in July 2009, their discussions at that time related to a drug importation scheme involving travel to the United States. Fraser abandoned that plan in September. It was not until late October 2009 that Fraser renewed her discussions with Wilson and eventually agreed to travel to St. Maarten in November 2009 and bring back drugs.

[22] Further, I do not see that the trial judge erred in finding that there was little probative value to the July Receipt. The Address on the July Receipt (25 Martha Eaton Way) did not match the evidence at trial that Sargeant resided at 15 Martha Eaton Way. 15 Martha Eaton Way was the address on Sargeant's driver's license and it was the address he gave when booking the motel rooms in Montreal the night before Gittens and Fraser flew to St. Maarten. Moreover, it was Wilson whom Fraser asked to wire her money in St. Maarten, not Sargeant. And, the address used for the wire was 25 Martha Eaton Way, not 15 Martha Eaton Way.

(2) Gittens' Hearsay Evidence

[23] Fraser expected that when she flew into the Montreal airport on her return from St. Maarten, she would be met by Wilson and Gopie who would then take her to Toronto. However, during the return flight to Montreal, Gittens told Fraser that Sargeant would also meet them at the airport and that Sargeant had been involved in planning the importation. Gittens further said that instead of returning immediately to Toronto, she and Fraser would be taken to a Montreal motel where the luggage containing the drugs would be picked up.

[24] The trial judge allowed Fraser to testify about what would happen upon their arrival in Montreal. However, he ruled that Fraser could not relay Gittens' comment that Sargeant had been involved in planning the importation, finding that it was narrative and not in furtherance of the conspiracy.

[25] The Crown says this evidence was wrongly excluded.

[26] I see nothing in this submission.

[27] The Crown relies on several cases for the proposition that statements about past events may be admissible under the co-conspirators' exception to the hearsay rule if they furthered the conspiracy: R. v. Mota (1979), 46 C.C.C. (2d) 273 (Ont. C.A.), at pp. 282-283; R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at paras. 42-44; R. v. White (1997), 32 O.R. (3d) 722 (C.A.), at pp. 772-774, leave to appeal to SCC refused, [1997] 3 S.C.R. xv; and R. v. J.F., 2011 ONCA 220, 105 O.R. (3d) 161, at paras. 38-44, aff'd 2013 SCC 12, [2013] 1 S.C.R. 565.

[28] However, those cases are readily distinguishable from the present case. In each of those cases, the statements were found to have been made to further the conspiracy. The statements in Mota were designed to reassure an undercover police officer (the person to whom the statements were made) that he would receive the cocaine for which he had paid (at para. 23). In Bogiatzis, the conversations were an attempt to reassure the other party of the speaker's reliability and entice him into further transactions (at para. 43). The information in White was necessary because the recipient had to deal with the auditor in question (at para. 161). And, in J.F., the conversation gave the recipient details of the murder necessary for planning its concealment (at para. 42).

[29] The trial judge carefully reviewed Fraser's statements about what Gittens said on the flight back to Montreal. He admitted the portions that were made in furtherance of the conspiracy. However, as the trial judge found, Gittens' excluded statement to Fraser was not made in furtherance of the conspiracy. The excluded statement was not designed to reassure Fraser that she would be paid, or to entice her into further transactions. Nor was the excluded statement necessary for Fraser to fulfill her role in the conspiracy. It was simply narrative about the past.

(3) The Name "Rasta"

[30] The trial judge ruled that Sargeant had not adopted the nickname Rasta by his silence. The Crown does not appeal that ruling.

[31] However, in its written submissions, the Crown says that the trial judge erred in ruling that Fraser could not testify that she was told that Sargeant's nickname was Rasta. The Crown submits that evidence was important because the Rasta nickname linked Sargeant to a cellphone number used to text instructions to Fraser and further linked Sargeant to Paul because Paul gave Datta the same number when he purchased the airplane tickets for Gittens and Fraser.

[32] The Crown's assertion on this matter is not borne out by the record. The trial judge did not rule that Fraser could not testify that she was told that Sargeant's nickname was Rasta. In fact, Fraser testified that she knew Sargeant as Rasta and was cross-examined on how she came to learn the nickname. However, the evidence on that point was incomplete and inconclusive.

[33] To the extent that the Crown modified its argument in oral argument to suggest that Gittens and Fraser, when speaking on the flight back to Montreal, must have used the nickname Rasta, I would simply note that when describing her conversation with Gittens, Fraser did not use the nickname Rasta.

[34] I see no error in the way in which the trial judge dealt with the Rasta nickname evidence.

WAS THE WRONG STANDARD APPLIED AT STEP TWO OF THE CARTER TEST?

[35] The Crown submits that the trial judge misdirected the jury on the burden of proof at step two of the Carter test. As membership in the conspiracy at step two must be decided on a balance of probabilities, the Crown says that the trial judge erred by instructing the jury that they had to be satisfied beyond a reasonable doubt of Sargeant's membership in the conspiracy. The Crown's submission is founded on the following part of the charge:

Mr. Sargeant attended on two occasions at the airport to assist Ms. Fraser with her luggage. On the second occasion, November the 23rd, 2009, he went into the airport with her, as you can see on the video filed as an exhibit.

If, and only if you are satisfied beyond a reasonable doubt that Mr. Sargeant is in fact Rasta and Paul, and if you are satisfied that he is the Paul who purchased the tickets from [Datta] at PayLess Travel, then you can consider the fact that he bought the tickets as part of Mr. Sargeant's own words and conduct at this stage of your analysis relating to probable membership.

Also, if, and only if you are satisfied beyond a reasonable doubt that Mr. Sargeant is Rasta and Paul, and that therefore it is Mr. Sargeant who called [Datta] while in the vehicle and identified himself as Paul, then you can consider that call as part of Mr. Sargeant's own words and conduct at this stage of your analysis relating to probable membership. And if, and only if you find that the text sent to Ms. Fraser stating: "Tell them you need your clothes and don't have any money," was sent from Mr. Sargeant, then you can consider that as well at this stage of your analysis relating to probable membership. [Emphasis added.]

[36] The Crown acknowledges that, at trial, it agreed with this instruction. However, relying on R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para. 13, the Crown says that while counsel's consent may be considered when assessing the error's impact, it is not determinative because the charge is ultimately the trial judge's responsibility.

[37] I do not accept the Crown's submission on this ground of appeal. In my view, it is misguided. The impugned references to the standard of proof are not directed at the question of whether Sargeant was a member of the conspiracy. Rather, the impugned references are instructions to the jury about how to approach some of the identification evidence at stage two of the Carter test. Specifically, the trial judge was instructing the jury that, in the circumstances of this case, they could not convict Sargeant using a balance of probabilities standard with respect to the identification evidence about Rasta and Paul. In so doing, as the trial judge discussed with counsel at the pre-charge conference, he was following this court's decision in R. v. Quidley, 2008 ONCA 501, a conspiracy to import cocaine (and other drugs) case. In setting aside the convictions in Quidley, this court held that the trial judge erred in instructing the jury that the voice identification on the wiretaps could be considered on a balance of probabilities standard because the voice identification evidence was critical.

[38] Recall the context within which the impugned instruction was given. In this case, it was clear that there was a conspiracy to import cocaine. The issue that the jury had to grapple with was whether Sargeant and Gopie were members of that conspiracy. The trial judge instructed the jury on multiple occasions that if they were satisfied there was a conspiracy to import cocaine, they then had to decide if Sargeant and Gopie were "probably" a part of the conspiracy. The trial judge also provided an explanation as to the meaning of the phrase "balance of probabilities". Recall also the issues around the names Paul and Rasta, discussed above.

[39] Read in context, it is clear that in the impugned passage, the trial judge was instructing the jury about how to approach the evidence to be considered when deciding whether Sargeant was a member of the conspiracy. He made it clear to the jury that they had to be satisfied beyond a reasonable doubt that Sargeant was Rasta and Paul before it could consider that evidence to decide whether, on a balance of probabilities, Sargeant was a member of the conspiracy.

[40] Accordingly, there was no error in the trial judge's instruction on the burden of proof at step two of the Carter test.