COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2021 ONCA 59

DATE: 20210201

DOCKET: C67318

Rouleau, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angella Lewis

Appellant

Angella Lewis, acting in person

Michael Dineen, appearing as duty counsel

Sandy Thomas, for the respondent

Heard: January 12, 2021 by video conference

On appeal from the conviction entered by Justice Ivan S. Bloom of the Superior Court of Justice, sitting with a jury, on February 28, 2019 and from the sentence imposed on July 31, 2019.

REASONS FOR DECISION

[1] The appellant was convicted of importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Through duty counsel, she appealed on the basis that the trial judge ought to have discharged two jurors (in addition to one juror who was discharged) and declared a mistrial. The appellant also argued two grounds of appeal on her own behalf: that her right to trial within a reasonable time guaranteed by s. 11(b) of the Charter was infringed; and that her right to make full answer and defence was compromised by the loss of airport surveillance video.

[2] For the reasons that follow, the conviction appeal is dismissed. The sentence appeal was not argued and is dismissed as abandoned.

ANALYSIS

Application for a mistrial

[3] In the trial judge’s charge to the jury, he instructed the jurors that they were to take their instruction on the law from him, and not to consult other sources. However, it was later discovered that one of the jurors (Juror #4) brought into the jury room two articles the juror had found on the internet. One article addressed how to select a jury foreperson, and the other addressed the meaning of reasonable doubt. When this was brought to the trial judge’s attention – prior to the jury having given its verdict – the trial judge conducted an inquiry beginning with Juror #4 and questioning each juror in turn. Juror #4 told the trial judge that he had brought the two articles into the jury room, that each of the jurors had read the article about foreperson selection, and that two of them had also looked at the article on reasonable doubt. The trial judge then asked the other jurors in succession whether they had been shown an article on reasonable doubt, whether they had looked at any other material regarding the law or evidence in this case, and whether they were able to follow the trial judge’s instructions regarding the law. Most of the jurors advised that they had not looked at any extraneous material regarding law, which arguably conflicted with Juror #4’s statement that all of the jurors had read the foreperson selection article. The trial judge then reopened the inquiry to specifically ask those jurors why they had not mentioned the foreperson selection article. Most of the jurors advised that they had not seen the foreperson selection article. Those who acknowledged having read the article explained why they did not mention it in response to the trial judge’s question. One had forgotten having read it. Another did not consider it to be an article regarding law.

[4] On the application for a mistrial, the trial judge concluded that Juror #4 had demonstrated an unwillingness to be guided by the trial judge’s instructions, and he therefore discharged that juror, with the agreement of the Crown. But the trial judge did not declare a mistrial, having been satisfied from the inquiry that the remaining jurors would faithfully discharge their duties.

[5] The trial judge made no error in dismissing the application for a declaration of mistrial. The trial judge conducted an appropriate inquiry and reached a reasonable conclusion about the fitness of the remaining jurors and the fairness of the trial. As the trial judge noted, the application for the declaration of mistrial was not made on the basis of the content of the materials viewed, which did not relate to the factual issues before the jury. The application was based on the initial non-disclosure by two jurors that they had seen the article about foreperson selection, and whether that non-disclosure negated the presumption that the jurors would perform their duties and follow the instructions they had been given.

[6] The trial judge made no error in concluding that the presumption was not rebutted, given his satisfaction with the explanations given by the jurors for non-disclosure. The assessment was the trial judge’s to make, and he made it reasonably. The trial judge made no error in concluding that a mistrial was not necessary, and that any potential for trial unfairness could be remedied with an appropriate direction to the jury. There was no challenge at trial to the sufficiency of the trial judge’s instruction in this regard (indeed the trial judge sought and obtained input from both Crown and defence counsel on the precise wording). We find that the instruction was sufficient and there was no resulting trial unfairness.

Section 11(b) application

[7] The appellant brought a s. 11(b) application pre-trial, but she could not perfect it as she was unable to secure funding for transcripts. She was denied legal aid for this particular disbursement, and the trial judge was not prepared to order the preparation of transcripts in the absence of a formal application for funding. That application was never brought, and the s. 11(b) application relating to pre-conviction delay was never heard.

[8] On appeal, although the appellant seeks to renew the s. 11(b) application in its entirety, the emphasis is now on the post-conviction, pre-sentencing delay.

[9] With respect to delay pre-conviction, the argument cannot succeed. The fact remains that there is much in dispute, there are no transcripts, and there is therefore no evidential foundation on which the claim could be advanced. However, things stand on a different footing with respect to the period of delay between conviction and sentencing, for which there are sufficient transcripts and no real factual dispute about what transpired. Conviction was entered on February 28, 2019, and reasons for sentence were delivered on July 31, 2019. Shortly thereafter, this court decided R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, which established a five-month presumptive ceiling for delay between verdict and sentencing, after which the delay is presumed to be unreasonable and must be justified by the Crown.

[10] It is agreed that the total delay is five months and three days, largely the result of scheduling of the Gardiner hearing, which had to be adjourned due to the unavailability of witnesses. The Gardiner hearing was scheduled to be heard March 27-29, 2019, was adjourned to April 23-25, and the ruling was given on June 10. Sentencing submissions commenced immediately thereafter and the sentence was imposed on July 31.

[11] The question that arises is whether the Gardiner hearing constitutes an exceptional circumstance under the Jordan framework, such that it should be deducted from the delay. The appellant argues that it should not, because the Gardiner hearing was necessitated by a tactical decision of the Crown at trial to invite the jury to return a verdict of guilty if it found the appellant had imported one cannister containing cocaine. The defence pointed to evidence suggesting that cannisters carried by another passenger had been mixed up with the appellant’s articles. At trial, the Crown sought to ground the conviction in the importation of one particular cannister that stood on a different evidential footing. The jury convicted the appellant, but this necessitated a Gardiner hearing to determine the quantity of cocaine imported for the purposes of crafting a fit sentence. The appellant argues that the resulting delay should be attributed to the Crown in the Jordan analysis, and not be considered an exceptional circumstance.

[12] We do not agree. A case in which a Gardiner hearing becomes necessary is not the routine sentencing framework contemplated by this court in Charley when the presumptive ceiling of five months was set. Without the benefit of full argument on the issue, we do not purport to resolve the question of whether a Gardiner hearing is best characterized as a discrete event, a matter of complexity, or some other category of exceptional circumstance. It is sufficient to note that the Gardiner hearing was an exceptional circumstance.

[13] We find that the delay of five months, three days, after the necessity of the Gardiner hearing is taken into account, reduces the net delay to well under the five-month ceiling, and does not constitute unreasonable delay. That disposes of the s. 11(b) argument.

Lost surveillance video

[14] With respect to the lost evidence argument, the appellant argues that she was unable to make full answer and defence because of the absence of security video from the secondary inspection area. The appellant argues that the video, had it been available, could have supported her argument that the four cannisters of cocaine said to have come from her luggage actually came from another passenger and were attributed to her through error.

[15] Canada Border Services Agency officers testified at trial that the area for secondary inspection was video recorded, though neither of them had seen or requested the video from that day and did not know whether it existed at the time of trial. An agreed statement of facts filed in evidence at the trial attests that although the CBSA records video of passengers passing through the Toronto Pearson Airport, no video is available for the date of the appellant’s passage through the airport on May 29, 2015, because “the video recording system suffered a large computer system failure”, and that the lost video records would not have included any audio.

[16] In the instructions to the jury, the trial judge noted the evidence addressing the absence of the video and the defence theory of prejudice. On the instruction given, the jury was able to understand the defence position that the Crown had not proved the charges beyond a reasonable doubt, given the absence of a video recording in circumstances where a video recording is routinely made but a system wide computer system failure had occurred, as well as the evidence relevant to that position. The impact of the lost video on the appellant’s right to make full answer and defence was not argued at trial; nor was there any objection to the jury instructions on this issue. No more was required. The jury instruction was sufficient and fair.

DISPOSITION

[17] The appeal is dismissed.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“B.W. Miller J.A.”