Court of Appeal for Ontario

Date: 2019-04-11 Docket: C63660

Judges: Rouleau, Miller and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Michèle N'Kansah Appellant

Counsel

Tina Yuen, for the appellant

Tanit Gilliam, for the respondent

Hearing and Appeal

Heard: March 22, 2019

On appeal from the conviction entered by Justice E. Ria Tzimas of the Superior Court of Justice, sitting with a jury, on December 15, 2016.

Decision

Fairburn J.A.:

Overview

[1] The appellant returned from Jamaica with just under three kilograms of cocaine secreted in her suitcase. The sole issue in dispute at trial was knowledge: was the jury satisfied beyond a reasonable doubt that the appellant knew that she had a controlled substance in her suitcase? The appellant denied knowledge of the drugs. The verdict of guilt demonstrates that the jury rejected that denial.

[2] The appellant raises several grounds of appeal. She says that the trial Crown's closing address improperly invited the jury to engage in speculation. She also argues that the charge to the jury was deficient in three ways:

(a) it failed to provide the jury with guidance on the permissible uses of good character evidence;

(b) it misdirected the jury on the essential element of knowledge; and

(c) it left the jury with an unbalanced view of the case.

[3] For the reasons that follow, I would dismiss the appeal.

The Crown's Closing Address Did Not Improperly Invite the Jury to Speculate

[4] The appellant points to a few passages in the trial Crown's closing address that she says rest on nothing more than speculation. Specifically, the appellant objects to the trial Crown having suggested to the jury that the appellant was:

(a) knowingly involved in a criminal enterprise;

(b) a willing member of a criminal scheme to import cocaine into Canada;

(c) hired as a courier to travel to Jamaica and bring back a suitcase full of drugs; and

(d) motivated by financial gain and paid for her efforts.

[5] The appellant maintains that those suggestions were speculative at best, detached from the evidence elicited at trial. She says that her position is supported by the fact that the trial Crown initially asked permission to lead expert evidence about drug hierarchies and where couriers fall within those hierarchies. She argues that the expert evidence application demonstrates that the trial Crown appreciated that she needed that evidence to make the impugned suggestions in her closing argument. Having later decided not to call the expert evidence, the appellant contends that the trial Crown improperly used her closing address as a substitute for that evidence. I disagree.

[6] This was a straightforward importing case involving three witnesses. There were only two witnesses for the Crown: the Canadian Border Services Agent who initially dealt with the appellant and discovered the cocaine, and the RCMP officer who arrested the appellant, searched her suitcase, and interviewed her.

[7] The RCMP officer provided evidence about the manner in which the three kilograms of cocaine had been hidden in the appellant's suitcase, secreted within layers of foam, tinfoil, and plywood, which were contained between the lining of the bag on one side and the exterior of the bag on the other side. The cocaine represented almost a third of the weight of the bag.

[8] The appellant was the third and final witness at trial. Although the appellant testified that she sometimes worked temporary jobs for additional cash and her daughter contributed to household expenses, it was not in dispute that she was living on a highly restricted budget of about $1,300 per month, out of which she had to pay $790 in rent. The appellant's limited financial means stood in stark contrast to the cost of her travel.

[9] The appellant booked a last-minute trip to Jamaica. She explained that the timing of her booking arose from her belief that she would be receiving a job offer: she wanted to ensure that she took a vacation and visited family while she still had an opportunity to do so. Although there was no information about the actual cost of the flight, the appellant agreed that it was more expensive than usual because it was a last-minute booking. She also agreed that she paid an extra $200 to upgrade her seats and an extra $200 to renew her passport on a rushed basis. She also agreed that, while she had family in Jamaica, she rented a room in a guesthouse and paid $250 for the week.

[10] According to the appellant, the room she rented was in a home owned by a woman named Hazel, who had a nephew named Everton. Hazel asked the appellant to take a bikini and some t-shirts back to Canada for Hazel's niece. The appellant was to contact Hazel once she got back to Canada so that Hazel could connect her with her niece. Hazel was never heard from again.

[11] During the defence closing submissions, counsel suggested that Hazel and Everton "put those drugs in [the appellant's] suitcase", which would have been "easy" for them accomplish. Defence counsel posited in his closing address that either Hazel's niece would surreptitiously retrieve the drugs once the appellant was back in Canada, or perhaps Everton would visit the appellant, giving him access to the bag. All the while, it was suggested that the appellant would remain in the dark about what she had brought into Canada.

[12] It is against that evidentiary backdrop, and the defence position in closing, that the trial Crown's impugned closing address must be considered.

[13] The suggestion that the appellant was a courier is not controversial: she conveyed the cocaine from Jamaica to Canada. The sole question at trial was whether she knew she was a courier of the cocaine. I see no impropriety in the trial Crown referring to the appellant as a courier.

[14] Nor do I agree with the appellant's submission that the trial Crown stepped into speculation when she suggested that the appellant was involved in a criminal importing scheme or enterprise. The circumstantial evidence was reasonably capable of supporting that inference. If sold at the gram level in the Greater Toronto Area, it was agreed that the cocaine would be worth between $238,880 and $328,460. The value of the cocaine gave rise to the reasonable inference that not just anyone, least of all someone unaware of the bag's contents, would have been entrusted with the drugs: R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 157; R. v. Bryan, 2013 ONCA 97, at para. 11. This suggested that the appellant may well have been working with another or others, especially because the evidence demonstrated that she could not have afforded that amount of cocaine on her own.

[15] Moreover, the appellant's own theory supported the suggestion of group activity. During the defence closing address, the appellant submitted that she had unknowingly fallen victim to Hazel and Everton's criminal importing scheme. The trial Crown did not engage in improper speculation when she essentially agreed that there was an importing scheme at work, differing only on the issue of whether the appellant was a knowing member of that scheme.

[16] As for the suggestion that the Crown stepped into the realm of speculation by suggesting that the appellant was remunerated for her efforts, that too was an available inference arising from the circumstantial evidence elicited at trial.

[17] There was solid evidence relating to the appellant's limited financial means. While caution must be exercised in relation to evidence of impecuniosity that may support a motive to commit a financially-motivated crime because it can lead to improper propensity reasoning – reasoning that, because an offender is poor, she may be more likely to commit a crime for financial gain – that is not what occurred here: R. v. Mensah, 170 O.A.C. 244; R. v. Burnett, 2018 ONCA 790, at paras. 105, 116-17; R. v. Phillips, 2008 ONCA 726, at paras. 50-51.

[18] The appellant's highly restrictive monthly budget alone gave rise to a reasonable inference that she was not in a position to afford her trip to Jamaica on her own: the expensive last-minute and upgraded flight, the expensive late renewal of the passport, and the rental accommodation. Based on that evidence, it was open for the jury to infer that, at a minimum, the trip to Jamaica had been paid for or contributed to by another. Such a payment could be construed as a form of compensation.

[19] The jury also knew the value of the cocaine on the street in the Greater Toronto Area. That cocaine could not get to market unless it got across the border. Given the risk of detection and the exposure to criminal penalties for importing, it is a common sense inference that those who bring cocaine into the country do not do so as a favour to others, but for remuneration. The proposition that the appellant knew she was carrying cocaine and would have been remunerated for her efforts arose from the evidence and common sense.

[20] I do not agree with the appellant's argument that the Crown closing effectively accomplished what the Crown chose not to pursue by way of expert evidence. The scope of the proposed expert opinion evidence extended well beyond the impugned suggestions in the Crown closing address: it included reference to methods of concealing drugs, drug importation hierarchies, and roles within a drug conspiracy, including the specific roles of organizers, overseers, couriers and receivers. The fact that the trial Crown ultimately chose not to lead that evidence did not remove the Crown's ability to call upon the jurors to draw common sense inferences from the evidence they had seen and heard.

[21] I would make two final observations regarding the appellant's suggestion that the Crown closing invited the jury to engage in inappropriate speculation. First, even if that were so, the trial judge instructed the jury that they could only decide the case based on the evidence that they had seen and heard. The jury was further instructed that the closing addresses by counsel did not constitute evidence. Second, defence counsel did not object to the Crown's closing remarks. The failure to object at trial merely underscores the appropriateness of those remarks and their support in the evidence.

The Alleged Failure to Provide Instructions on the Use of the Good Character Evidence

[22] The appellant relied heavily upon good character evidence. She testified about having been raised by a pastor, participating in multiple charitable activities, and having a pro-social background. Among other things, she testified that she had held a job in the past, had a 23-year-old daughter and was attending McGill University to upgrade her education in business. She said that she frequently volunteered as a youth mentor and tutor in Montreal, and was studying to be a counsellor qualified to work with people who have special needs, substance abuse issues, and with the elderly.

[23] The appellant maintained that she would never do anything to risk her good reputation or future earning potential. Specifically, she testified that she would not risk her ability to obtain a police record check, something she needed for much of her volunteer work.

[24] It was not in dispute at trial, nor is it in dispute on appeal, that the defence elicited good character evidence that was relevant both to the appellant's credibility and to whether, because of her character traits, the appellant was less likely to have committed the offence. When an accused puts her character in issue, the trier of fact should be charged on both purposes to which the evidence can be put: R. v. Elmosri, 23 C.C.C. (3d) 503; R. v. Potts, 2018 ONCA 294, at paras. 59-61.

[25] The trial judge did not provide the jury with a specific free-standing instruction detailing how the jurors could use the good character evidence. The appellant says that the failure to provide that instruction left the jury without any understanding of how to use the evidence. The appellant argues that the error was compounded by the trial Crown's closing submissions, which she says suggested that the good character evidence was not really evidence and was not relevant to the jury's deliberations.

[26] Considering counsels' closing submissions and the trial judge's charge as a whole, I am satisfied that the jury was left with an accurate picture of how they could use the good character evidence. I will first address the trial Crown's closing remarks and then move on to consider the charge.

[27] The appellant objects to the trial Crown having told the jury that the case was "not about [the appellant's] character", that it was not about whether the appellant was a "good person", and that "[i]n most cases, [character] is not relevant". One of the impugned passages reads as follows:

This case is not about [the appellant's] character. That is, it's not about whether or not [the appellant] is a good person. It's not about the things she did in her life before or after June 28th, 2015. As I'm certain you know in your own lives, good people make mistakes. So-called bad people sometimes come through and do good things unexpectedly. The point is that human behaviour is hard to predict. Sometimes people take risks, which, in retrospect, they ought not have taken. That is why, generally speaking, a criminal trial is not about character.

[28] The appellant argues that those comments essentially encouraged the jury to ignore as irrelevant the good character evidence, compounding the problem arising from the trial judge's failure to address the proper use of that evidence. I disagree with this characterization of the trial Crown's closing remarks.

[29] The trial Crown's closing was directly responsive to the appellant's position that, because of her antecedents, she would not have knowingly imported cocaine. The Crown was entitled to meet that defence argument and advocate against it. The trial Crown did not tell the jurors to disregard the character evidence; rather, she told the jurors to focus on the evidence that she said should satisfy them beyond a reasonable doubt that the appellant knew what was in her bag. For instance, the trial Crown suggested the following:

[A] lot of what has been submitted to you by [defence counsel] has been about [the appellant's] character. He asks you quite simply to believe that [the appellant] is not the type of person to commit this crime. And I'm going to submit to you, please focus on the evidence. Contrary to what has been put to you, this is a strong Crown case. I ask you not to be taken in by a smooth presentation and a smooth story which I suggest has been designed to garner your sympathy.

[The appellant] asks you to believe that because of the type of person she is, she would not knowingly import the drugs. That is a risk that she would not take. But I suggest to you that this is a red herring. And I ask you to focus on the evidence. The answers are there for you in the evidence.

[30] There was nothing wrong with suggesting to the jury that the trial was "not about character". The trial was not about the appellant's character. It was about whether the appellant knew that she had cocaine in her bag when she arrived in Canada. While the defence was encouraging the jury to find that knowingly bringing cocaine into Canada was inconsistent with the appellant's character, the Crown response was that, in spite of that character, the evidence pointed toward the appellant being knowingly involved. That was an available position for the Crown to advance. Read contextually, the jury would have understood the Crown's closing submissions to be suggesting that, despite the evidence supporting the appellant's good character traits, the evidence also supported the fact that she knowingly imported cocaine.

[31] This leaves the issue of whether the charge to the jury was deficient on the character point. I conclude that it was not.

[32] Reviewing the adequacy of a charge on appeal requires this court to take into account the context of the trial as a whole, including the closing submissions of counsel: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58. The charge was delivered immediately after counsels' closing addresses. The defence had clearly brought home to the jury the defence position that the appellant was an honest witness and was not the type of person who would have committed the offence. As set out in the passages above, even the trial Crown twice repeated the appellant's position regarding her good character and how it informed the issue of knowledge. Those closing submissions, made immediately before the charge and on the same day the jury's deliberations started, would have informed the jury's understanding of their task.

[33] In addition, counsel were given the opportunity to provide input on the contents of the charge. Defence counsel did not ask for a specific instruction on character. Counsel were also provided with the opportunity to review the draft charge to the jury, and to raise any objections following delivery of the charge. No objections were voiced.

[34] Counsel are expected to "assist the trial judge and identify what in their opinion is problematic with the judge's instructions to the jury": Daley, at para. 58. Counsel's failure to object to the jury charge is a factor for the reviewing court to consider because it can demonstrate the seriousness of any alleged problem: Daley, at para. 58. I find that the silence on the good character instruction demonstrates that the appellant was satisfied at trial that the operative legal principles had been adequately conveyed to the jury: R. v. Jacquard, [1997] 1 S.C.R. 314, at pp. 338-39.

[35] The question is whether, against the backdrop of the entire charge and entire trial, the trier of fact was in a position to decide the case in accordance with the law and evidence: R. v. Calnen, 2019 SCC 6, at para. 6; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J. wrote in R. v. Daley, at para. 30:

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.

[36] A functional approach to this jury charge reveals its adequacy. The trial judge instructed the jury that the sole issue for them to resolve was whether the appellant knew that her suitcase contained a controlled substance. The jury was instructed that the issue of knowledge was to be decided "on all of the evidence". The jury would have understood that the good character evidence was included in that direction.

[37] The trial judge's summary of the evidence included specific references to the good character evidence. The trial judge concluded the six-page single-spaced summary of the appellant's evidence by restating her position:

She explained why she would never look for easy money, and outlined all the various jobs and efforts she has undertaken over the years to support herself and improve her education.

She also shared her views on what she called "the filth of cocaine", and gave you some insight into the youth she said she engages with, and her understanding of the ills of cocaine.

Ultimately, [the appellant] told you that she did not know about any drugs in her suitcase, that she would not have taken such a risk and jeopardize her name, her future earnings and future police security clearances.

[38] This instruction would have reinforced for the jury the defence position, that the appellant would not have committed the offence because of who she is and what she stands for.

[39] Further, the trial judge read out a summary of each of the parties' positions close to the end of the charge. The parties had provided those summaries to the trial judge for inclusion in her charge. The defence summary again referred to the appellant's unchallenged good character.

[40] In the context of this single-issue case, the trial judge's failure to give a specific good character instruction had no impact on the jury's understanding of their task. The overall effect of the charge was to equip the jury with the necessary tools to decide the case: Daley, at para. 31; Jacquard, at para. 62. Considered as a whole, and against the closing addresses, the jury would have understood the permissible uses of the good character evidence.

The Alleged Misdirection on Knowledge

[41] The appellant raises three broad complaints regarding the trial judge's instructions on the issue of knowledge: first, the appellant says that the trial judge failed to properly relate the evidence to the issue of knowledge; second, she says that the trial judge wrongly invited the jury to use a rejection of her evidence as affirmative evidence of guilt; and third, she says that in reviewing the trial Crown's position, the trial judge failed to provide any counterpoints to that position. I deal with each argument in turn.

(a) The Trial Judge Did Not Fail to Relate the Evidence to the Issue of Knowledge

[42] The trial judge appropriately explained to the jury that the sole issue for their determination was whether the appellant knew she had a controlled substance in her bag, referring to that issue as the "crux of the case". The appellant acknowledges that the trial judge provided a legally compliant instruction on the essential element of knowledge, but contends that she failed to assist the jury by explaining what parts of the evidence were relevant to their determination of knowledge. Instead of focussing on the evidence that informed knowledge, the appellant says that the trial judge erroneously opted to review all of the evidence at once. I disagree.

[43] Although a witness-by-witness recitation of the evidence will fall short of providing a jury with sufficient assistance in some cases, this is not universally so. Trial judges are granted wide latitude in determining how to structure their charges: R. v. Speers, 2017 ONCA 333, 347 C.C.C. (3d) 401, at para. 30.

[44] In this short, three-witness, one-issue case, there was no need for the trial judge to parse the evidence. The Crown's position was that, as a matter of common sense, the entire evidentiary landscape pointed toward the appellant's knowing participation in drug importation. In these circumstances, the trial judge made a sensible decision to provide a review of all three witnesses' evidence right after explaining how the jury should approach the issue of knowledge. I would defer to the trial judge's choice in that regard.

(b) The Trial Judge Did Not Invite the Jury to Use a Rejection of the Appellant's Evidence as Positive Evidence of Guilt

[45] The appellant's second complaint is that the trial judge wrongly invited the jury to use a rejection of the appellant's evidence as affirmative evidence of guilt. I disagree.

[46] The impugned comments are taken out of context. They fell within the part of the charge where the trial judge was summarizing the Crown's position on proof of knowledge, part of which involved explaining to the jury why the Crown was urging them to reject the appellant's denial of knowledge. For instance, in one of the impugned comments, the trial Crown suggested to the jury that the appellant's explanation about how she was set up by Hazel and Everton relied upon "impossibly convenient coincidences". There was nothing wrong with the charge reviewing those aspects of the Crown position, as they were relevant to the issue of knowledge. Importantly, the trial judge did not go on to suggest that a rejection of the appellant's evidence could constitute affirmative evidence of guilt.

[47] Finally, I again observe that there was no objection to either the Crown closing or the charge to the jury on these points.

(c) The Charge Contained All of the Necessary Counterpoints to the Crown's Position

[48] The appellant's third complaint is that the trial judge failed to provide any counterpoints to the Crown's position on knowledge. The appellant proffers several examples of this alleged shortcoming. For instance, the appellant says that it was improper for the trial judge to point to the excess weight of the cocaine and packaging in the appellant's bag as a fact that potentially informed knowledge, without immediately countering that suggestion with the appellant's explanation for why she may not have noticed the additional weight in the bag.

[49] Again, the appellant's claim does not survive a contextual review. The passages complained of all fall within a part of the charge that was clearly summarizing the "Crown's position" on proof of knowledge. At other points in the charge, the necessary counterpoints were reviewed and provided. In addition, the jury was instructed to consider all of the evidence in deciding the case, and the jury had just heard the closing addresses summarizing the appellant's version of events.

[50] The appellant also maintains that the trial judge did not provide a balanced charge respecting the Crown's reliance on the appellant's demeanour at the airport. Both the Crown and the defence relied upon demeanour evidence. In fact, the defence tried to use the fact that the appellant did not appear nervous when dealing with the customs officer, and exhibited genuine surprise when told that there was cocaine in her bag, as factors pointing away from knowledge. The trial judge provided a balanced charge that properly reflected both parties' positions on demeanour.

[51] Finally, the appellant objects to the trial judge having told the jury that: "[Crown counsel] put to you that it would be unreasonable to believe that a drug supplier would send drugs worth over $300,000 to Canada with no secure way of retrieving them from [the appellant]." The appellant says that the trial judge should have explained to the jury that the value of the cocaine in Jamaica was much less and, therefore, the monetary risk to the supplier was potentially less than what the Crown suggested. I disagree. The jury knew the value of the cocaine in Jamaica, as it was filed as part of an agreed statement of fact that constituted an exhibit available to the jurors during deliberations. As well, whether considered in terms of value in Jamaica or Canada, the cocaine was valuable cargo.

The Jury Was Not Left With an Unfair View of the Case

[52] The appellant submits that the Crown closing and charge left the jury with the impression that the defence case should be held to a higher standard of scrutiny than that of the prosecution. The appellant says that the trial Crown essentially suggested that it was up to the appellant to account for every loose detail in the case and that the trial judge should have corrected that misimpression. I disagree.

[53] First, the defence did not object to the Crown's closing submissions. Nor do I see any basis upon which a credible objection could be made. The Crown was merely advocating for the position that the appellant's version of events did not accord with what the Crown said was common sense. In particular, the Crown argued that the cocaine was a valuable asset and, whoever owned it, they would not have entrusted it to the whim of a person who had no idea what she was carrying. What if she lost her bag? What if she decided to dispose of it? What if she discovered that it contained cocaine and reported it to the authorities?

[54] Second, the appellant's assertion that the defence was held to a higher standard is unsustainable. The trial judge provided a thorough and correct explanation regarding the burden and standard of proof; properly instructed the jury on R. v. Villaroman, 2016 SCC 333, [2016] 1 S.C.R. 1000, outlining how to approach the circumstantial evidence that touched on the issue of knowledge; and twice set out a correct instruction on R. v. W.(D.), [1991] 1 S.C.R. 742.

[55] The trial judge also provided a balanced review of the evidence. In fact, the defence evidence received a review twice as long as that of the Crown.

[56] The charge was balanced and fair.

Conclusion

[57] I would dismiss the appeal.

Released: April 11, 2019

"Fairburn J.A." "I agree. Paul Rouleau J.A." "I agree. B.W. Miller J.A."