Court of Appeal for Ontario

Date: March 23, 2018 Docket: C61600

Judges: Watt, Brown and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Jeffrey Brian Potts and Tracy Lee Robinson Appellants

Counsel

Paul Calarco, for the appellant, Jeffrey Potts

Colin Wood, for the appellant, Tracy Robinson

Meaghan Hourigan, for the respondent

Heard

November 2, 2017

Appeal Information

On appeal from the conviction entered on August 14, 2015 and the sentences imposed on January 21, 2016 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a jury.

By the Court

[1] Jeffrey Brian Potts and Tracy Lee Robinson ("the appellants") were found guilty by a jury of importing 7.86 kilograms of cocaine into Canada on their return from Jamaica. Each was sentenced to a term of imprisonment of 6.5 years after receiving credit for pre-disposition custody and stringent terms of pre-trial release.

[2] Jeffrey Brian Potts appeals both conviction and sentence. Tracy Lee Robinson appeals her sentence only.

[3] At the conclusion of the appellants' oral arguments, we dismissed the appeals. We said that we would later provide our reasons for having done so. These are our reasons.

The Background Facts

[4] A brief overview of the evidence admitted at trial is sufficient to set the grounds of appeal in their appropriate environment. Further details are provided where necessary in our discussion of the appellants' submissions.

The Trip to Jamaica

[5] The appellants, strangers to one another, travelled to Jamaica together. Potts was 59, Robinson 28. Each indicated on a customs declaration card that the trip was personal, not business-related. Potts advised border officials that he and Robinson were "friends". Their tickets had been purchased less than one week prior to departure. The purchaser, a third party, paid for the tickets in cash.

Potts' Version of Events

[6] Jeffrey Brian Potts testified at trial. Tracy Lee Robinson did not testify.

[7] Potts explained that the trip had been arranged by a business associate, a woman whom he had known for many years. A previous trip to pursue a business venture had failed to materialize. But this time the plan came together. Potts asked his wife to accompany him, but she declined. The trip organizer asked Potts whether he was willing to have another person go with him. Potts agreed. The other person turned out to be Ms. Robinson.

[8] The woman who arranged and paid for the trip asked Potts to take a bag of clothing with him to give to her ex-husband, one of the men whom Potts and Robinson were to meet in Jamaica. Because the suitcase in which the clothes had been packed was expensive, the woman asked Potts to bring the suitcase back with him when he returned. Potts agreed.

[9] The woman met Potts and Robinson at the airport in Toronto. There she provided them with their tickets and the bag they were to give to her husband. Robinson had two other bags with her.

The Bag Exchange

[10] Potts delivered the bags to a man in a group he and Robinson met at the hotel in Jamaica. The man was to deliver the bag to the ex-husband of the woman who had purchased the tickets. The man took the three bags to a vehicle, emptied them out and returned them to Potts. Potts did not check the bags when the man brought them back.

The Return to Canada

[11] Potts and Robinson returned to Canada on the same flight. They had three bags. Robinson told Potts that only one bag belonged to her. Potts disagreed, but put his name on the extra bag. At the airport in Toronto, Potts processed his return through an Automated Border Clearance Machine. Robinson was unable to do so. Both were referred to secondary inspection.

Secondary Inspection

[12] At secondary, an official summoned Robinson to appear for a bag inspection. Potts told the official that he and Robinson were travelling together. He offered to come forward. Potts answered the official's questions about their trip.

[13] The officer who inspected and x-rayed the third bag, one with Robinson's name on it, noticed that different coloured thread was visible on the lining of the bag. Upon further inspection, the officer discovered that each bag contained an insert.

The Drugs

[14] The inserts in each of the three bags contained 2.5 to 2.6 kilograms of cocaine. Further investigation yielded no fingerprints on the inserts and no drugs on the clothing in the bags or on other parts of the bags. One of the two bags bearing Potts' name contained men's clothing, the other women's clothing.

[15] Subsequent analysis determined that the cocaine in the inserts was of 57 percent purity.

The Arrest and Searches

[16] The appellants were arrested, searched incident to arrest and turned over to the RCMP. When Robinson was told about the finding of drugs in the suitcases, she asked "how much was in there?" Potts said nothing.

The Appeal from Conviction (Potts)

[17] Potts appeals his conviction. He advances five grounds of appeal. Each, save one, focuses upon what are said to be errors or omissions in the charge to the jury. None attracted an objection at trial. While not dispositive, the absence of any objection affords some indication that counsel, ever mindful of Potts' interest and of any potential prejudice to his claim of lack of knowledge, did not consider the error or omission prejudicial: R. v. Daley, 2007 SCC 53, [2007] S.C.R. 53, at para. 58.

Ground # 1: Instructions on the Mental Element in Importing

[18] Potts says that the trial judge failed to properly instruct the jury on the mental element in importing. The issue, Potts contends, should have been framed as whether Potts knowingly imported a substance, not simply as whether Potts imported a substance, an issue that was not in dispute. This error, Potts submits, was compounded by the trial judge's instructions on wilful blindness and his reference to the common sense inference of intention.

[19] We reject this claim of error.

[20] The trial judge separated out in point form the essential elements of the offence of importing a controlled substance, in this case, cocaine. He then converted each essential element, which he explained, into a question for the jury to consider. The first two questions were:

Did Mr. Potts and/or Ms. Robinson import a substance into Canada?

Was the substance cocaine?

As the trial judge explained, neither of these two issues was controversial.

[21] The trial judge then turned to what he termed as "the real issue in this trial", that of knowledge of the nature of the substance and that it was hidden in the suitcases. Put in question form:

Did Mr. Potts and/or Ms. Robinson know that a controlled substance, in this case cocaine, was in the suitcases that they brought into Canada from Jamaica?

What followed after the question were instructions about proof of knowledge by reliance on circumstantial evidence (including a Hodge's formulation); actual knowledge and wilful blindness; inferences from words and conduct from each appellant; and the verdict consequences of the findings available to the jury on the issue.

[22] In later portions of his charge, the trial judge reviewed at length the testimony of the appellant Potts denying knowledge of the cocaine in the suitcases. Thereafter he read to the jury a summary of the defence positions prepared by trial counsel.

[23] Several reasons persuade us that this approach to charging the jury does not provide grounds for appellate intervention.

[24] First, the standard of review. An appellate court adopts a functional approach when reviewing the adequacy of a jury instruction: R. v. Jacquard, [1997] 1 S.C.R. 314, at p. 335; R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 59. Substance controls, not form. In this case, the trial judge's charge focused the jury's attention on the central issue at trial: Potts' knowledge of the cocaine in the suitcases. The instruction given on this issue adequately equipped the jury to decide this question. It is of no moment that this was the third issue discussed by the trial judge, rather than the first.

[25] Second, inherent in Potts' submissions is an assertion that final instructions must follow a particular order, failing which they are deficient. But as we have said, substance controls, not form. Provided that the information necessary for the jury to perform its task is covered, the order in which the trial judge chooses to set out the essentials lies within his sound discretion. Perhaps in some cases the order chosen may be prejudicial to an accused. But that is not this case.

[26] Third, although the trial judge could have reformulated the first question as Potts suggests to read:

Did Mr. Potts and/or Ms. Robinson knowingly import a substance into Canada?

it does not follow that his failure to do so reflects misdirection, let alone prejudicial misdirection. Indeed, the manner chosen enabled the trial judge to focus exclusively on the single critical issue in the case – knowledge.

[27] Finally, trial counsel, who had ample opportunity to make submissions about the content of the charge before it was delivered, did not seek the instruction now said to be essential or complain of its absence, either before the instructions were given or at any time thereafter.

Ground # 2: Limiting Instructions on Statement of Co-Accused

[28] Potts contends that the trial judge erred in failing to instruct the jury, in express terms, that the statement of Robinson when advised of the discovery of the cocaine in the suitcases – "how much was in there?" – could not be used as evidence in the case against him. The evidence at trial did not show that Potts and Robinson were together at the time of Robinson's statement. In the absence of evidence from which the jury could find Potts adopted Robinson's statement, a limiting instruction was mandatory.

[29] We do not give effect to this ground of appeal.

[30] At the outset, we acknowledge that the trial judge should have given mid-trial and final instructions that explained the permitted and prohibited use of Robinson's out-of-court statement when advised of the discovery of the cocaine. That said, we are not persuaded that the omission caused any substantial prejudice to Potts.

[31] First, this was not a case, as are many, in which Robinson's statement implicated Potts by attributing some words or conduct to him. In such cases, the risk of prejudice is that, left untutored about use of the evidence, the jurors will take what one accused says about another accused's conduct as evidence of that conduct. But that is not what happened here. This was Ms. Robinson asking a question. No more. No less.

[32] Second, in closing addresses no counsel invited the jury to consider Robinson's statement in determining whether the case against Potts had been proven beyond a reasonable doubt. Nor was any equivalent suggestion made in the trial judge's final instructions.

[33] Third, although he did not instruct the jury to confine their consideration of Robinson's statement to the case against her, the trial judge did make it clear that:

i. each accused was a separate individual who could not be found guilty unless the evidence relating to him or her proves his or her guilt of that offence beyond a reasonable doubt;

ii. each accused was entitled to separate consideration;

iii. each accused was entitled to have his or her case decided on the basis of his or her conduct and state of mind and from the evidence that may apply to him or her; and

iv. the findings in relation to both accused may be the same or different (emphasis added).

[34] Finally, trial counsel for the appellant did not ask for a limiting instruction in connection with Robinson's remark, nor object to the failure of the trial judge to give specific mid-trial and final instructions on the issue.

Ground # 3: The Right to Silence

[35] This ground of appeal relates to something said by an RCMP witness who gave evidence about his interaction with the appellants after they had been arrested, cautioned and advised of their Charter rights. The officer explained that Potts did not want to give a statement to the police.

[36] The appellant says that the trial judge should have instructed the jury expressly that Potts had the right to remain silent and was not required to speak to or cooperate with the police in their investigation. The trial judge's failure to do so, the appellant says, was prejudicial error and may have led the jury to conclude that Potts had a reason not to speak to the police and from that draw an inference of guilt. The effect of the omission was exacerbated by the trial judge's repetition of this evidence in his charge.

[37] In our view, this ground of appeal fails.

[38] First, the trial judge was not asked at any point by any counsel to provide an instruction on this issue. No request was made for its inclusion at the pre-charge conference. And no objection was taken when nothing was said about it in the charge.

[39] Second, unlike in some cases, Potts' silence was not a focal point of the trial. He was not cross-examined on it, for example, by counsel for Robinson. Crown counsel said nothing of it in her closing address to the jury. Only trial counsel for Potts referred to it in her opening address to the jury in which she reminded jurors of the right to silence.

[40] Third, the charge to the jury and the opening remarks of counsel for Potts made it clear that the onus of proof was on the Crown and never shifted to the appellant, who was under no obligation to adduce evidence or to prove his innocence.

Ground # 4: The Expert Evidence

[41] This ground of appeal challenges two aspects of the expert evidence admitted at trial. The complaints are that the expert was permitted to testify, or at least gave evidence, on the ultimate issue at trial – knowledge of the controlled substance in the suitcases – and contravened the prohibition against anecdotal evidence promulgated in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272. The appellant also says that the expert provided misleading evidence on the price of cocaine.

[42] As we will explain, this ground of appeal fails. We begin with some background.

[43] In this case, the Crown qualified a member of the RCMP to give expert opinion evidence about the nature and sources of cocaine and the methods by which it was distributed, including the hierarchy of drug organizations. This evidence was of a general nature, not specific to the circumstances of this case.

[44] In cross-examination by counsel for Robinson (not Mr. Wood), the witness was asked about compensation for "mules", those recruited to bring cocaine into Canada. The officer testified that:

i. generally speaking, mules do not pack the drugs;

ii. packing could take anywhere from one hour to several days;

iii. as a general rule, mules may not be aware of the precise nature of the controlled substance in their bag, but would likely be aware, at some level, that something was in the bag for which they were responsible; and

iv. providing someone with cocaine worth $300,000 without them being aware would be a very large risk; thus, mules are often told what to say when questioned by border officers.

[45] In her closing argument, Potts' trial counsel warned the jury against using expert opinion to resolve the "ultimate issue" at trial: whether Potts knew that the suitcases contained cocaine. Counsel for Potts then observed that "[w]ithin [the expert] evidence … you may actually find some points that are helpful to Mr. Potts in assessing whether he … had knowledge of what was in the bags." Similarly, Robinson relied on the expert opinion evidence that mules do not pack the drugs they transport to support her position that she had no knowledge of the contents of the suitcases. For its part, the Crown invited the jury to consider the low likelihood of anyone entrusting a valuable commodity to strangers without knowledge on the courier's part of the content of the bags.

[46] We now consider Potts' objections on appeal to the admission of the expert evidence. First, the ultimate issue complaint.

[47] It is worth recalling that no general rule precludes the introduction of expert opinion evidence on the ultimate issue in a criminal trial: R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 24-25; R. v. Bryan, 175 C.C.C. (3d) 285 (Ont. C.A.), at paras. 16-17; R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, at para. 271. Admission of such evidence must be determined on a case-by-case basis.

[48] In our view, the complaint advanced in this case is not made out on the evidence adduced at trial. The RCMP witness was not asked and did not testify on the ultimate issue the jury was required to determine: whether either appellant knew that a controlled substance, cocaine, was in their suitcases on their return from Jamaica.

[49] Second, the anecdotal evidence submission.

[50] We do not accept that the expert opinion evidence received in this case falls foul of the rule laid down in Sekhon.

[51] Recall the evidence in Sekhon. A police officer qualified as an expert testified that in approximately 1000 investigations over more than three decades, he had never encountered a courier who did not know about the commodity they were importing.

[52] The Sekhon court held that the evidence failed to meet the threshold requirements of relevance and necessity established by Mohan. The opinion lacked legal relevance because the guilt or innocence of accused whom the witness had encountered in the past was legally irrelevant to Sekhon's guilt or innocence. Said differently, the testimony was of no probative value on the issue of whether Sekhon knew about the cocaine in a hidden compartment: Sekhon, at paras. 49-50.

[53] In this case, the evidence to which objection is now taken lacks the indicia that attracted disapproval in Sekhon. What was said here, elicited in cross-examination by trial counsel for Robinson, did not condescend to specifics or invite the chain of reasoning condemned in Sekhon. Indeed, in Sekhon itself, evidence of the general nature given here seems to have passed without unfavourable comment: Sekhon, at paras. 35 and 41.

[54] Further, in his final instructions to the jury, the trial judge emphasised the general nature of the expert opinion evidence and pointed out that it was "not based on the evidence in this case but based on her [the expert's] experience, training and education". At no time did the trial judge suggest to the jury that the expert evidence established or assisted in establishing knowledge on the part of either appellant.

[55] A final point. Neither Potts' nor Robinson's trial counsel objected to the introduction of the evidence, sought a limiting instruction on jury use of the evidence, or objected to the omission of such an instruction.

[56] Third, the expert evidence about the price of cocaine.

[57] The RCMP witness referenced the potential financial loss an organization would suffer if its cocaine imports were intercepted at the border. This evidence, the appellant submits, relied on the improper assumption that the cocaine could be sold under optimum conditions, with full and successful marketing. Consequently, the jury could have been misled as to the financial risks associated with using a "blind" courier.

[58] We reject this submission. In our view, it was reasonable for the expert to assume that financial loss from intercepted cocaine imports includes both the costs of acquiring the cocaine and lost profits that could have accrued from its sale. Accordingly, we do not share Potts' concern that the jury could have been misled on the potential financial risks accompanying the use of "blind" couriers. Further, Potts' trial counsel did not request a corrective instruction on this aspect of the expert's evidence or object to its inclusion in the charge.

Ground # 5: Character Evidence and the W.(D.) Instruction

[59] The final ground of appeal against conviction also relates to an alleged fatal omission in the trial judge's charge to the jury. The complaint is that, in providing an instruction tracking the decision in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge erred by confining the subject-matter of the instruction to Potts' testimony, rather than including within it the evidence of good character adduced on his behalf. In this case, the evidence of good character described the appellant as well-liked, charitable and honest.

[60] At the outset, we acknowledge that the trial judge did not give any instruction about jury use of the evidence of good character adduced on behalf of Potts. In other words, the judge did not instruct the jury that evidence of the appellant's good character was relevant to:

i. the unlikelihood that the appellant committed the offence charged; and

ii. the credibility of the appellant as a witness in the proceedings.[1]

In addition, as the appellant contends, the trial judge did not include the good character evidence in his W.(D.) instruction.

[61] We agree it was an error for the trial judge not to have explained to the jury the permissible uses of the good character evidence. That said, we are satisfied this error was minor and did not create a risk of prejudice to Potts. We therefore agree with the Crown that this is an appropriate situation to apply the curative proviso: Criminal Code, s. 686(1)(b)(iii); Sekhon, at para. 53. We have reached this conclusion for four reasons.

[62] First, the evidence of Potts' good character suffered from some significant weaknesses. One witness had not worked with Potts directly for at least seven years and had, at best, sporadic contact with him. The evidence of the second witness contradicted Potts' own testimony about his education and revealed little knowledge about his business dealings.

[63] Second, trial counsel for Potts referred to the good character evidence in her opening and closing addresses to the jury. She described it as "very limited in its scope" and explained that it would assist the jury "in weighing all of the evidence whether or not this person is likely the sort of person to turn in his mid-life to committing various crimes". In this respect, it is worth recalling that a charge to the jury does not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of a trial judge's charge encompasses consideration of the addresses of counsel as they may fill gaps in the charge: Daley, at para. 58.

[64] Third, on several occasions in his charge, the trial judge made it clear that the jury was to decide this case on the basis of their consideration of all of the evidence adduced at trial. By its terms, such an instruction would include the evidence of good character. This would not be lost on a present-day jury.

[65] Finally, counsel for Potts did not request an instruction on the character evidence or object to the lack of such an instruction in the charge to the jury.

[66] For these reasons, we dismissed Potts' appeal from conviction.

The Appeals from Sentence

[67] Both appellants appeal from equivalent sentences of imprisonment for 6.5 years imposed upon them after deduction of credit for brief periods in pre-trial custody and more lengthy periods under stringent terms of judicial interim release orders.

The Positions at Trial

[68] At trial, Crown counsel sought penitentiary sentences of seven to eight years for both appellants. The Crown acknowledged that Potts and Robinson should receive credit for the lengthy period during which they were bound by stringent release terms.

[69] Trial counsel for Potts sought a sentence towards the lower end of the relevant sentencing range with credit of five to six months for stringent release terms, resulting in a net sentence of five to six years.

[70] Trial counsel for Ms. Robinson sought a sentence of imprisonment of three to four years, including credit for 16 months of house arrest.

The Reasons of the Trial Judge

[71] The trial judge identified the range of sentence appropriate for first time offenders convicted after trial of importing in excess of one kilogram of cocaine as a penitentiary sentence of six to eight years. In his view, the predominant sentencing objectives were denunciation and deterrence.

[72] The trial judge considered the appellants to be equal partners in the importing venture. He identified two mitigating factors common to both appellants. Each was a first offender. Each had been fully compliant with stringent terms of their pre-trial release. The trial judge also noted that Potts is a productive member of society, and that Robinson, the devoted mother of two children, upgraded her education while awaiting trial.

[73] The trial judge took note of two aggravating factors common to both appellants: the gravity of the crime for which they had been convicted, and the fact that their only motivation for the offence was profit.

The Arguments on Appeal

[74] In this court, Potts acknowledged that the trial judge correctly identified the range of sentence applicable to this case. But a range, as its name suggests, is not an inflexible structure into which every sentence must be slotted. Individual sentences outside the range may nonetheless be fit. And the special circumstances of this case warranted a sentence outside the range. Six decades of good citizenship. Steady work. Community service. In addition, the trial judge failed to adhere to the principle of restraint in imposing a first sentence of imprisonment.

[75] Robinson points to three specific errors which she submits resulted in the imposition of an unfit sentence:

i. attributing the entire quantity of cocaine – 7.86 kilograms – to her, despite the conflict in the evidence about control of the third bag and without adhering to the principles from R. v. Gardiner, [1982] 2 S.C.R. 368;

ii. finding the offence to be motivated by greed in the absence of any evidence to support such a finding; and

iii. failing to consider as a mitigating factor the low purity of the cocaine.

[76] The Crown begins with a reminder about the controlling sentencing objectives – denunciation and deterrence – and the narrow scope of review available on appeals from sentence. The sentences imposed fall squarely within the range of sentence applicable to the circumstances of this offence and the offenders who committed it. The sentencing judge's reasons disclose no error of law, or of principle, let alone an error that had an impact on the sentence imposed.

[77] The Crown says that the trial judge's finding of a joint venture or equally shared interest was fully supported by the evidence adduced at trial and available to the trial judge on the basis of the jury's verdict under s. 724(2) of the Criminal Code. Whose name appeared on the baggage tags on the return to Canada was not dispositive of the nature and extent of participation in the importation. The trial judge did not rely on the amount of cocaine as an aggravating factor and was entitled to find financial gain as the underlying motive in light of the evidence of financial need introduced at trial. The claim of low purity was refuted by the expert evidence adduced at trial.

Discussion

[78] In our view, the sentences imposed are fit. They sit comfortably within the range of sentence applicable for importing cocaine in amounts well in excess of one kilogram. This range includes first offenders. We are unable to detect any error of law or of principle in the reasons of the trial judge that had any impact on the sentences he imposed. Nor are the sentences demonstrably unfit.

[79] On the evidence adduced at trial, it was open to the trial judge to find that the appellants were co-principals in this importing scheme. The extent of participation is not determined by whose name appears, or how many times, on baggage tags. Depending on the method of distribution, the amount of cocaine involved had a street value of between $353,000 and $628,000. The level of purity does not diminish the gravity of the offence, the moral blameworthiness of those who committed it, or the destruction it could have created on distribution.

[80] Leave to appeal sentence is granted, but the appeals from sentence are dismissed.

Conclusion

[81] For these reasons, we dismissed the appeal from conviction and the appeals from sentence.

Released: March 23, 2018

"David Watt J.A." "David Brown J.A." "L.B. Roberts J.A."

Footnote

[1] See, R. v. Elmosri, 23 C.C.C. (3d) 503 (Ont. C.A.), at pp. 506-507; R. v. Poirier, 193 C.C.C. (3d) 303 (Ont. C.A.), at para. 15.