Court of Appeal for Ontario

Date: 20210520 Docket: C64868

Juriansz, van Rensburg and Sossin JJ.A.

Between

Her Majesty the Queen Respondent

and

Marcia Chambers Appellant

Counsel: Mark C. Halfyard, for the appellant Brian Puddington and Leanne Siu, for the respondent

Heard: May 5, 2021 by video conference

On appeal from the conviction entered by Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on September 25, 2017.

Juriansz J.A.:

[1] The appellant appeals her conviction of possession for the purpose of trafficking in cocaine and marijuana. The police executing a search warrant found the drugs in her bedroom in an apartment she shared with her adult son. She was arrested away from the residence shortly before the execution of the search warrant. The sole issue at trial was whether the Crown could establish the appellant’s knowledge of the drugs found in her bedroom. The defence theory at trial was that an available and reasonable inference was that during the short delay while the police were attempting to gain entry to the residence, the son moved the drugs into the appellant’s bedroom.

[2] The appellant raises three grounds of appeal:

1. the trial judge erred in failing to exclude police opinion evidence about the appellant’s demeanour and in failing to instruct the jury to disregard that evidence;
2. the trial judge failed to instruct the jury that if any reasonable inference other than guilt was available, they must acquit, and he failed to highlight the other dangers of relying on circumstantial evidence; and
3. the verdict was unreasonable as there was insufficient evidence to establish knowledge beyond reasonable doubt.

[3] I would allow the appeal on the first ground, find it unnecessary to discuss the second, and would reject that third.

(1) The Demeanour Evidence

[4] Before executing the warrant at her residence, the police arrested the appellant at a shopping plaza a few minutes away. The police blocked her vehicle, identified themselves as police and arrested her. No drugs were found in her car or on her person.

[5] At the outset of trial, the Crown sought to introduce demeanour evidence by having the police witnesses “attest to how she behaved in their opinion”. The trial judge stated flatly, “Their opinion is not admissible.” He ruled that the police “can say she appeared nervous but nothing about their opinion about her demeanour.”

[6] During the trial, various police officers testified about the appellant’s demeanour at the time of her arrest as well as at the residence while the officers searched it.

[7] Constable Griffin testified:

She was cooperative with us. As soon as I started to explain that we had a search warrant for the residence and for the car she became very nervous, very, her demeanour was just, I would, I would, I would call it upset. She didn’t say anything to us. She did not answer any questions.

She did answer to her name and during the search we had located identification for her. [Emphasis added.]

[8] Constable Hart also testified she appeared nervous upon being arrested.

[9] Constable Reynolds testified about the appellant’s demeanour when she was returned to the residence. He testified she appeared “very nervous”, “very agitated in a very agitated state.” Asked what made him say that, he responded, “her demeanour to me appeared that she wasn’t answering questions put to her ” (emphasis added). Asked to describe her appearance, he answered:

The best way to describe it would be that she appeared to be like a deer caught in headlights.

I don’t know how better to describe it than that; very staring, not blinking a lot, just very wild, like, you know, a very pronounced stare with respect to her eyes. Her demeanour was very nervous. To me she was not presenting. She appeared as such to the point where it was obvious based on her reaction to us being in the home and us there to execute a search warrant, that she appeared to be very concerned with respect to that.

[10] In cross-examination, Constable Reynolds agreed he was not a trained psychologist. He disagreed with suggestions that the appellant may have been upset at seeing her son in handcuffs and hearing that drugs and bullets had been found in her son’s room. He said:

Her demeanour was a deer caught in the headlights. The, from my understanding at that point, that the drugs that were located in [the son’s] room weren’t of a significant quantity to warrant that reaction or her demeanour. But as you stated, it is possible that, you know, her son being under arrest, the drugs that had been found in the residence at that point, could have been a contributing factor to her demeanour. But I don’t believe that that was the, the full scale of her, of her reaction…

(2) The Pre-Charge Conference

[11] At the pre-charge conference, defence counsel raised the police testimony about the appellant’s demeanour. The trial judge indicated he would be telling the jury they should be extremely reluctant to rely on this evidence, and added:

I regret letting it in. Saying that she looks like a deer trapped in the headlight and then attempting to quantify what that meant when you put other perfectly reasonable scenarios to the officer, I shouldn’t have let the evidence in. It’s, in my thinking it’s akin to post-offence conduct and there are numerous other reasons that she might look like that. So, I’ll be dealing with demeanour.

[12] Defence counsel then asserted that Constable Canning had testified that the appellant had been uncooperative and that the jury might say “well, she didn’t cooperate with the police officer”. Defence counsel was concerned that the jury might think there was “an onus” on her client to say anything to the police.

[13] The trial judge said he did not have a note that Constable Canning said the appellant was uncooperative. Defence counsel insisted he had said at one point she was not cooperative. After the Crown stated that they did not have a note of Canning saying the appellant was not cooperative, the trial judge stated, “Well, I’m not going to say anything about that”.

[14] Defence counsel was mistaken in attributing the testimony to Constable Canning. It was Constable Griffin who had testified the appellant did not say anything to the police and would not answer any questions, and it was Constable Reynolds who said she was not answering questions put to her.

[15] After the trial judge read to counsel what he proposed to say in his charge about the elements of the offence, including about the police testimony that the appellant looked like a deer caught in headlights, defence counsel said he had nothing further to say.

(3) The Charge

[16] As he had indicated at the pre-charge conference, the trial judge said to the jury:

Constable Reynolds testified that [the appellant] appeared to be very nervous and agitated and she looked like, a lot like a deer in the headlights. Now, in my view, this evidence does not really help you. There is no evidence that Constable Reynolds knew [the appellant], or what her demeanour is usually like, and there are several reasons why she might appear to be nervous and upset. The police were searching her home. She and her son were in handcuffs, and there was mention of drugs being found in her son’s room.

[17] The trial judge said nothing to the jury about the police testimony that the appellant had not answered the questions of the police (other than identifying herself).

[18] The trial judge’s charge also contained the standard instructions:

My references to the evidence are only to help you remember it and to show how it relates to the issues in this case. If my memory of the evidence is different from yours, it’s yours that counts. You find the facts and base your decision on your memory of the evidence, not mine, nor that of counsel.

Now, our law also permits me to comment or express opinions about issues of fact. If I do that however, you do not have to reach the same conclusion. You, not I, determine what happened in this case.

(4) Analysis

[19] The trial judge’s instructions to the jury were deficient in two respects.

[20] First, the charge left it open to the jury to rely on evidence that was not admissible. Before the police witnesses testified, the trial judge had ruled their opinions about the appellant’s demeanour inadmissible. At the end of the testimony, the trial judge acknowledged the police witnesses had gone beyond testifying about their observation of the appellant’s demeanour and had offered opinion evidence about the appellant’s demeanour. Telling the jury that he viewed the evidence as not helpful, while leaving the jury free to apply their own view of it, left open the prospect that the jury might rely on the evidence. The trial judge should have instructed the jury clearly and unambiguously to disregard the evidence.

[21] Second, the charge lacked a clear instruction that the jury could not draw anything from the appellant’s post-detention silence, which was her constitutional right. While the trial judge and neither counsel had a clear recall of Constable Griffin’s testimony that the appellant “didn’t say anything to us. She didn’t answer any questions”, members of the jury may well have noted and remembered the testimony. The instructions should not have left open the prospect that the jury might use the evidence for an impermissible purpose by reasoning that if the drugs were not the appellant’s she would have answered their questions.

[22] These deficiencies in the charge to the jury rendered the trial unfair and would necessitate a new trial.

(5) Unreasonable verdict

[23] I would reject the appellant’s submission the verdict is unreasonable. The evidence in this case, considered as a whole, was reasonably capable of supporting the verdict.

[24] Cocaine worth $287,000, marijuana worth $70,000 and additional drug paraphernalia, such as digital scales, were found in various places in the appellant’s bedroom. Her ODSP receipt, her lease for the premises, and her passport were also found in the bedroom. The lease indicated she was paying $1600 a month in rent while receiving $1912 in disability support according to the ODSP receipt. High-end watches were also found in her bedroom. She was in possession of three cell phones when arrested.

[25] In my view a correctly instructed jury could have rejected the theory of the defence, that the appellant’s son placed the drugs and other items in various spots throughout his mother’s bedroom during the brief period the police were attempting to gain entry to the premises, and could have concluded the appellant was guilty.

(6) Conclusion

[26] I would allow the appeal, quash the convictions, and remit the matter to the Superior Court of Justice for a new trial.

Released: May 20, 2021 “RGJ”

“R.G. Juriansz J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. Sossin J.A.”