Court of Appeal for Ontario

Date: 2018-06-28 Docket: C64131

Judges: Watt, Pardu and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Penny Lee Crocker Appellant

Counsel

John Fennel, for the appellant

Ghazala Zaman, for the respondent

Heard: June 25, 2018

On appeal from the conviction entered on September 22, 2015 and the sentence imposed on June 5, 2017 by Justice Dino DiGiuseppe of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals her convictions of possession of morphine and possession of morphine for the purpose of trafficking, as well as the sentence of imprisonment of eight months imposed upon her.

The Background

[2] Police executed a CDSA warrant at the residence the appellant shared with her husband. In the appellant's purse, they found over 200 morphine pills. The pills were in small bags embossed with spades and marijuana leaves. There were ten pills in each bag. Similar empty bags were located elsewhere in the house.

[3] The Crown contended at trial that the appellant intended to sell the pills. To establish this was her purpose, the Crown relied on expert evidence that the quantity of pills and the manner in which they were packaged was consistent with trafficking. The Crown also relied on evidence given by several police officers about things the appellant did and said on discovery of the pills and arrest. This included:

i. her denial that her husband had anything "to do with it";

ii. her acknowledgment that she had no prescription for the pills;

iii. her statement that she paid $900 dollars for the pills; and

iv. her admission that she sold the pills for $20 each.

[4] The defence advanced at trial, based on the evidence of the appellant, her husband and their friend, Jerry Rojic, was that the pills belonged to Rojic who had a prescription for them. The appellant claimed that she was holding the pills for Rojic to protect his daughter who was a drug addict. The packaging was a gag gift her husband had received for a previous birthday. The amount in each package was doled out for Rojic's use in accordance with his prescription.

The Appeal from Conviction

[5] On the appeal from conviction, the appellant argued that the trial judge erred in his assessment of Rojic's evidence. In particular, the appellant says that the trial judge erred by:

i. failing to take into account Rojic's prior consistent statements to the police in assessing his credibility;

ii. failing to provide sufficient reasons for rejecting Rojic's testimony;

iii. rejecting Rojic's testimony based on misapprehensions of his evidence; and

iv. failing to consider the notorious fact that drug-addicted family members and friends steal prescriptions from those who have prescriptions in assessing the plausibility of the scheme advanced by way of defence.

[6] In our view, the appeal from conviction fails.

[7] Rojic's prior consistent statements could not be used to bolster the credibility of his in-court testimony. No exception to the general exclusionary rule was engaged but, even if an exception permitted their reception, it did not permit the use now advanced. Nor is the claim that the statements were receivable as declarations against penal interest sustainable. Among other things, the declaration was not against Rojic's interest nor did it render him vulnerable to any penal consequences, immediate or remote.

[8] In our view, the trial judge provided several cogent reasons for rejecting Rojic's evidence. Each was firmly grounded in the evidence adduced at trial and not based on any misapprehensions of that evidence. His conclusion that the arrangement which constituted the core of the appellant's defence was implausible was plainly open to him on the evidence adduced at trial.

[9] The appeal from conviction is dismissed.

The Appeal from Sentence

[10] The appellant also appeals sentence. She says that the trial judge erred in failing to properly take cognizance of Gladue principles in determining the sentence he imposed. In the result, the sentence imposed, according to the appellant, fails to consider restorative justice options and fails to respect the fundamental principle of proportionality.

[11] In our view, the trial record furnishes no support for the appellant's complaints.

[12] The trial judge explicitly acknowledged the need to consider Gladue principles and adjourned sentencing proceedings to allow counsel to obtain the necessary documentation. As it turned out, neither Aboriginal Legal Services Toronto nor the Thunder Bay Indian Friendship Centre could confirm the appellant's Aboriginal ancestry, thus could not prepare a report describing how factors specific to the appellant's Aboriginal background may have played a role in bringing her before the court.

[13] The trial judge was keenly aware of the appellant's difficult upbringing and her personal circumstances. These factors occupied a place of prominence in the sentencing decision which resulted in a sentence well below the range proposed by the Crown. There was no evidence on sentence that any restorative justice options were available.

[14] The sentence imposed was fit, if somewhat lenient. It reflects no error in principle, no consideration of any irrelevant principle or factor, no failure to take into account a relevant factor and no improper emphasis on any relevant objective, principle or aggravating or mitigating factor.

[15] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"David Watt J.A." "G. Pardu J.A." "L.B. Roberts J.A."