Court of Appeal for Ontario

Date: May 3, 2018 Docket: C62375

Judges: Feldman, Roberts and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Ewah Godwin Appellant

Counsel

Paul Calarco, for the appellant

Milica Potrebic, for the respondent

Heard: April 17, 2018

Decision

On appeal from the conviction entered by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury, dated June 19, 2015, and from the sentence imposed on December 1, 2015 with reasons reported at 2015 ONSC 7492.

Roberts J.A.:

Conviction Appeal

[1] The appellant appeals from his conviction following a jury trial with his co-accused, David Igbinoba, for conspiracy to import heroin and possession of heroin for the purpose of trafficking, and from the 11 year, 3 and a half month sentence (after credit for pre-sentence custody) that was imposed.

[2] With respect to the conviction, the appellant submits that the trial judge made the following two reversible errors:

i. He failed to properly instruct the jury on the limited use that they could make of his co-accused's out-of-court statement to the police. In particular, the trial judge should have directed the jury that it could not visit the co-accused's lack of credibility on the appellant.

ii. He should have held a jury inquiry because of juror bias.

[3] I do not accept these submissions.

(i) Adequacy of the Jury Instruction

[4] I see no error in the trial judge's instruction concerning the proper use that the jury could make of the co-accused's out-of-court statement to the police, namely, that it "must not consider anything [it finds] an accused said to a witness outside of the court in reaching [its] verdict on the other accused, even if that describes what that other accused said or did." The trial judge vetted the charge with counsel. There was no objection to the instruction that the appellant now impugns. In my view, when the charge is read as a whole, there is no basis to suggest that the jury would have been confused by the instruction.

[5] Moreover, I do not agree that there was any obligation on the trial judge to give an express instruction that the jury was not to use any adverse credibility findings concerning Mr. Igbinoba against the appellant. The appellant extrapolates this submission from the language of the instruction that this court in R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, leave to appeal refused, [2010] S.C.C.A. No. 83 and [2010] S.C.C.A. No. 179, at para. 133, indicated was correct that "out-of-court statements made by one accused were admissible only against that accused and were not admissible 'in any way for or against the other accused who did not make the out-of-court utterance'" (emphasis added). I do not read this statement as supporting the proposition asserted by the appellant.

[6] The common sense conclusion that the jury should not impugn the appellant's credibility on the basis of adverse credibility findings against his co-accused logically flows from the trial judge's instructions. He gave instructions against the jury engaging in forbidden propensity reasoning, the limited use that could be made of a co-accused's out-of-court statement, and the requirement that the jury come to a separate verdict for each accused.

(ii) Jury Inquiry

[7] This issue arose because of unsolicited communications that Juror no. 6 sent to trial Crown counsel following the delivery of the verdict on June 19, 2015. Between July 4 and July 7, 2015 Juror no. 6 sent written communications by letter and email to Crown counsel. Most of Juror no. 6's communications are taken up with praise for the efforts of Crown, defence and court staff, and the thanks of all of the jurors for the opportunity to participate in the administration of justice. In response, Crown counsel thanked Juror no. 6 for her remarks and in response to her question, invited her and the other jurors to attend the sentencing hearing if of interest to them. The exchange of emails ended with Juror no. 6's July 7, 2015 email that Crown counsel crossed her mind and she thought that she would say "hi", wishing him a nice afternoon. On July 10, 2015 senior counsel at the Public Prosecution Service of Canada advised the trial judge and defence trial counsel of the entirety of the communications between Juror no. 6 and Crown counsel.

[8] The appellant submits that Juror no. 6's communications progressed beyond a mere expression of gratitude from a member of the public to Crown and defence counsel for a job well done, to a demonstration of romantic interest in Crown counsel. As such, they give rise to a reasonable apprehension of bias on the part of Juror no. 6 in favour of the Crown.

[9] There is no question that the correspondence from Juror no. 6 warranted the consideration undertaken by the trial judge. There is also no suggestion that there were any communications between Juror no. 6 and Crown trial counsel before the verdict was rendered. The impugned communications having arisen subsequent to the delivery of the verdict, the trial judge's options were limited in the circumstances of this case to creating a record for appellate review: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at paras. 55 and 56; R. v. Bains, 2015 ONCA 677, 328 C.C.C. (3d) 149, at para. 72.

[10] I agree with the trial judge's conclusion that in the circumstances of this case, there would have been no utility in holding a jury inquiry. Such an inquiry necessarily would have devolved into an impermissible examination concerning matters protected by the jury secrecy rule at common law and prohibited under s. 649 of the Criminal Code, which are intrinsic to the deliberation process, including jurors' "minds, emotions or ultimate decision": R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344, at paras. 59 to 61 and 77.

[11] In my view, the record created by the trial judge was sufficient to allow for meaningful appellate review of the issue of jury bias. Indeed, the appellant submits that the record is sufficient to demonstrate that Juror no. 6's communications with Crown counsel create a reasonable apprehension that she did not decide the case in accordance with her oath, thereby rendering the verdict against the appellant a miscarriage of justice.

[12] On appellate review, the test to be applied to determine whether Juror no. 6's communications give rise to a reasonable apprehension of bias is well-established: What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he or she think that it is more likely than not that the juror, whether consciously or unconsciously, would not decide fairly? (see: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at paras. 19 and 20).

[13] The test is a stringent one. There is a strong presumption of jury impartiality that is not easily rebutted. As this court recently stated in Dowholis, at para. 18:

A juror is a judge. There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. Judicial impartiality has been called "the key to our judicial process": Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59. The presumption of impartiality anchors public confidence in the integrity of the administration of justice.

[14] While Juror no. 6's communications are concerning, I conclude that a reasonable person, knowing all the facts, would not think that it is more likely than not that this juror, whether consciously or unconsciously, would not have decided fairly. The appellant has not met the high threshold of demonstrating a reasonable apprehension of bias.

Sentence Appeal

[15] With respect to the sentence appeal, the appellant submits that the trial judge erred in imposing a harsh sentence because he failed to give effect to the principle of rehabilitation and to consider the lower purity of the heroin in issue as a mitigating factor.

[16] I disagree.

[17] The trial judge explicitly considered the possibility of rehabilitation but properly gave greater weight to the principles of denunciation and deterrence in the circumstances of this case. He also examined the appellant's purity argument and, again, correctly in my view, determined that there was no evidence that the heroin in this case was of such low purity that it was a material factor on sentencing.

[18] Finally, there is no issue that the sentence imposed was within the appropriate range for similar offenders and similar offences. It reflected the appellant's moral culpability in devising and carrying out a sophisticated importation scheme of a seriously harmful controlled substance. The sentence was not manifestly unfit. I see no error that would justify appellate intervention.

[19] Accordingly, the appeal and leave to appeal sentence are dismissed.

Released: May 3, 2018

"L.B. Roberts J.A."

"I agree K. Feldman J.A."

"I agree G.T. Trotter J.A."