COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Hudson, 2021 ONCA 772
DATE: 20211102
DOCKET: C65962
Doherty, Watt, van Rensburg, Benotto and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jacinda Hudson
Appellant
Maija Martin, David Reeve and Iman Amin, for the appellant
Sarah Shaikh, Chris Walsh and Jonathan Geiger, for the respondent
Emily Marrocco, for the intervener, Attorney General for Ontario
Owen Goddard and Rick Frank, for the intervener, Criminal Lawyers Association
Heard: February 23, 2021 by video conference
On appeal from the convictions entered by Justice Robert Charney of the Superior Court of Justice, sitting with a jury, on August 22, 2018.
Watt J.A.:
[1] A package for the appellant. From China. Delivered to her home by Canada Post. At least, it looked like Canada Post.
[2] The appellant was not home when the package arrived. Her ex-boyfriend was there. He accepted delivery and took the package into the house. He told the appellant about the package.
[3] About an hour later, police officers arrived at the appellant’s home. They had a search warrant. They found the package from China. They arrested the appellant’s ex-boyfriend. When the appellant got home, they arrested her too.
[4] A jury found the appellant guilty of importing fentanyl and possession of fentanyl for the purpose of trafficking. The trial judge imposed sentences of eight years on each conviction to be served concurrently.
[5] The appellant appeals her convictions. These reasons respond to her claims of judicial error in the conduct of the trial and explain why I would allow the appeal, set aside the convictions, and order a new trial.
The Background Facts
[6] A brief summary of the evidence received at trial will provide the background necessary to understand the issues raised on appeal and how I propose that they be decided.
The Package
[7] On October 18, 2016, members of the Canada Border Services Agency (“CBSA”) in Richmond, British Columbia intercepted three packages addressed to three different persons at addresses in Southern Ontario. The sender or consignor of each package was the same – DigitalPartner UNIKO of Guangdong, China. The packages were said to contain “digital cable” valued at $10. All were sent by post.
The Contents of the Package
[8] CBSA members opened each package. They found 323 grams of fentanyl in the package addressed to the appellant. The others contained similar amounts of fentanyl. The street value of the fentanyl in the package addressed to the appellant was $320,000.
[9] Fentanyl is toxic. CBSA members delivered the package to the RCMP who removed the fentanyl from the package addressed to the appellant, replaced it with an inert substance, and then sent the package by plane so that it could be delivered to the appellant in Ontario.
The General Warrant
[10] Police obtained a general warrant on November 1, 2016, authorizing the RCMP to conduct a controlled delivery of the package to the appellant or anyone acting on her behalf at her Ajax home.
The First Attempt at Delivery
[11] At about 11:30 a.m. on November 4, 2016, an undercover police officer approached the appellant’s front door. The officer arrived in a Canada Post vehicle. He wore the uniform of a Canada Post delivery operator. He carried the package addressed to the appellant.
[12] The officer rang the doorbell. He knocked on the door a couple of times. No one answered. He left. The appellant had left about an hour earlier. Her ex-boyfriend was in the house but did not get to the front door before the undercover officer had driven away. An immediate text exchange between the ex-boyfriend and later co-accused, Hazare Roman, and the appellant followed.
The Text Messages
[13] As the undercover officer attempted delivery, Hazare Roman and the appellant exchanged texts. When Roman advised the appellant that Canada Post was at the door, the appellant told him “Answer and sign”. When Roman replied that Canada Post had left before he (Roman) could get downstairs to the door, the appellant asked whether Canada Post had left anything. Roman said “No”.
[14] About 20 minutes later, the appellant exchanged text messages with her friend, Louisa Munro. As she had the previous day, Munro advised the appellant “O said keep eyes ‘peeled’”. The appellant told Munro that Canada Post had been at her house: “Is it coming that way?”. Munro said “Ya”. The appellant asked “Like delivery?” to which Munro responded “IDK we’ll talk when you here”.
The Return Home
[15] About 20 minutes after her text exchange with Louisa Munro, the appellant drove up to her house, slowed down, looked at her house, and drove on. Minutes later, she returned, got out of her car, walked to the house, opened the front door and stepped inside briefly. When she came back outside, she looked inside the mailbox, got in her car and drove away. At trial, she testified that she looked in the mailbox for a courier slip telling her where to pick up the package.
[16] A few minutes later, the appellant told Hazare Roman that the package was important.
The Package Arrives
[17] The undercover police officer, disguised as a Canada Post delivery person, returned at 12:50 p.m. the same day. He rang the doorbell and knocked. This time, Hazare Roman answered the door. When asked, Roman indicated that he would accept the parcel for the appellant. He took the package, printed “Jacinda” on the delivery bill, and signed with the appellant’s initials “J.H.”.
The Appellant Gets Notice
[18] Within minutes, Hazare Roman advised the appellant that he had her package. About 45 minutes later, the appellant told Roman “Perfect I’m OMW”.
The Search and Arrest
[19] About an hour after delivery of the package, the police arrived at the appellant’s home with a search warrant. The unopened package was on a front hall table near a photograph of the appellant and her children, a sunglass case, and 10 grams of cocaine. Three cellphones were on the bed in the master bedroom. The closet was full of only women’s clothes. The police arrested Hazare Roman and, after she returned home, the appellant.
The Defence Case at Trial
[20] At trial, the defence case consisted of the testimony of two witnesses. Louisa Munro testified first. The appellant was the final witness. Pared to its core, the defence was a denial of any involvement in importing fentanyl. The appellant was expecting a package from Louisa Munro’s mother in Nova Scotia containing books and children’s clothing, not fentanyl from China. The appellant also sought to adduce evidence that a known third party suspect, Raza Khan, the appellant’s former boyfriend and lessee of her home, was responsible for the importation. The application was dismissed. The dismissal is a ground of appeal.
[21] Louisa Munro testified that her mother in Nova Scotia had collected several children’s books and other items she planned to send to the appellant. She thought that her mother would mail the package to the appellant. Their exchange of messages related to this package. Unexpectedly, Munro’s father drove to her home with the package after the appellant’s arrest. Munro had known the appellant for about five months before her arrest. Her mother had never previously sent a package to the appellant. Munro’s text reference to “O”, as in “O said keep eyes ‘peeled’”, was a mistype for “I” and referred to the package from her mother, not to a person “O”.
[22] The appellant testified after Louisa Munro had given her evidence. The appellant said that she and Munro planned to go to a basketball game. Their text messages were about outfits to wear to the game. The Monday following her arrest, Munro gave her the package she had been expecting.
[23] The appellant testified that, on the day of the controlled delivery, Roman was sleeping at her house. She called Munro to tell her that she was going to look for outfits to wear to the basketball game. Munro told the appellant about the package from her mother. When Roman explained that he had missed a delivery, the appellant believed that this was the package from Munro’s mother. She stopped off at home en route to Munro’s to see whether Canada Post had left a delivery slip after the first failed delivery. Later, Roman advised her of the arrival of the package. She did not hurry home to get it.
The Third Party Suspect Application
[24] After the case for the Crown had closed, but prior to electing whether to call a defence, the appellant sought a ruling on an application to adduce evidence of a third party suspect, the appellant’s former boyfriend, Raza Khan.
[25] Raza Khan testified on the third party suspect voir dire. He gave evidence about helping the appellant obtain her home in Ajax. He had lived with her on and off for about ten months, but did not live there with her at that time. The lease was in his name and she paid rent directly to him. He admitted having sold cocaine and fentanyl in the past and having previously ordered different kinds of drugs online, including fentanyl. He neither took responsibility for the fentanyl in the package sent to the appellant, nor did he deny any involvement. He said he could not remember whether he had ordered drugs delivered to the appellant’s home in the past. Nor did he recall whether he had a key to the appellant’s home where he had not lived for a couple of years.
The Grounds of Appeal
[26] The appellant pursues several grounds of appeal. She contends that:
i. the offence of importing is complete once controlled substances enter the country;
ii. the conviction of importing fentanyl is unreasonable;
iii. the conviction of possession of fentanyl for the purpose of trafficking is unreasonable;
iv. the trial judge erred in failing to instruct the jury on circumstantial evidence, thus reversing the burden of proof;
v. the trial judge erred in failing to instruct the jury on evidence of after-the-fact conduct;
vi. the trial judge erred in permitting the jury to draw an adverse inference against the appellant because she was the last witness to testify; and
vii. the trial judge erred in dismissing the appellant’s third party suspect application.
Ground #1: The Essential Elements of Importing
[27] This ground of appeal focuses on the essential elements of importing, in particular, on when the physical element or actus reus of importing is complete. The same issue arises in the companion case of R. v. Okojie (C68428), the reasons in which are being released at the same time as these.
[28] In this case, the error alleged in determining the endpoint of the physical element or actus reus of importing is said to have had two consequences at trial. The jury was misdirected on the essential elements of the offence and, as a result, rendered an unreasonable verdict on that count.
[29] To settle the issue raised in its proper environment, it is helpful to recall some features of the evidence adduced at trial and what the trial judge told the jury about importing.
The Essential Background
[30] The appellant was the addressee of a package sent by post from DigitalPartner UNIKO in Guangdong, China. The declaration on the package described its contents as a “digital cable” and its value as $10. The package arrived at the International Mail Centre in Richmond, British Columbia on October 18, 2016. The package was examined. It contained fentanyl. Due to the toxic nature of fentanyl, the controlled substance was removed, its nature confirmed by testing. Its street value was $320,000.
[31] The package, absent the fentanyl, was forwarded by plane by the RCMP so that it could be delivered to the appellant at her Ajax residence. Prior to its delivery, the appellant exchanged texts with a friend, Louisa Munro, a person whom she had known for about five months, in which Munro said, “O said keep eye out”. The appellant responded, “Ok sweet”. The morning of the controlled delivery Munro sent another text: “O said keep eyes ‘peeled’”.
[32] On November 4, 2016, about two weeks after the package had arrived in British Columbia, an undercover police officer, disguised as a Canada Post delivery person, attempted to deliver the package to the appellant’s home. The delivery, which was authorized by a general warrant, failed. The appellant was not home. Hazare Roman, an ex-boyfriend who was there, did not get to the door before the undercover officer left.
[33] An exchange of text messages followed with the ex-boyfriend about the failed delivery and its importance to the appellant. The appellant returned home, checked her mailbox for a courier slip and went into her house searching for any sign of the package. She then left.
[34] About an hour later, the disguised undercover officer returned. He delivered the package to the appellant’s ex-boyfriend who accepted it on her behalf. Before the appellant returned home after being told about the delivery of the package, police executed a search warrant at the appellant’s home. They found the package, unopened, on a table in the front hall. Police arrested the appellant when she returned home. She said nothing about an “important package” and denied expecting delivery of a package when questioned by police.
The Charge to the Jury
[35] The trial judge distributed copies of his proposed instructions to the jury to counsel and discussed their content with them. Trial counsel for the appellant (not counsel on appeal) did not object to the instructions about importing either before or after they were delivered.
[36] After posing the first question for the jurors to answer as “Did Jacinda Hudson import a substance into Canada?”, the trial judge explained:
To import something into Canada means to bring it into the country, or cause someone else to bring it in, from outside Canada.
This element is proven when the substance enters Canada. Crown counsel does not have to prove that Jacinda Hudson actually took delivery of the substance, or actually carried it in.
What is essential, however, is that Jacinda Hudson was the person responsible for bringing it into Canada. This is the real issue for you to decide with respect to this charge. [Emphasis added.]
[37] Later, the trial judge framed the issue for the jury to decide in this way:
There is no dispute that the substance was imported into Canada. The real issue for you to decide is whether Ms. Hudson was the person responsible for bringing the substance into Canada. The Crown relies on the evidence that the package was addressed to Jacinda Hudson at 1 Pennefather Lane, and on the text messages set out above as evidence from which you can infer that Ms. Hudson was the person responsible for bringing the fentanyl into Canada.
After reviewing the positions of the parties, the trial judge concluded his instructions on this question:
If you are not satisfied beyond a reasonable doubt that Jacinda Hudson imported a substance into Canada, you must find Jacinda Hudson not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that Jacinda Hudson imported a substance into Canada, you must go on to the next question. [Emphasis added.]
The Arguments on Appeal
[38] The appellant says that the term “import” has its plain meaning of to bring in or cause a controlled substance to be brought into the country. The fault element requires proof that an accused knew or was wilfully blind as to the presence of the controlled substance, albeit not the nature of the controlled substance actually imported. This requirement of knowledge or wilful blindness must precede the entry of the controlled substance for proof of the offence of importing to be established.
[39] To establish the actus reus or physical element of importing, the appellant continues, the Crown must prove that the accused did some voluntary act to arrange the shipment or delivery of the controlled substance into Canada. Establishing the point at which the offence is complete is central since this determines whether the evidence establishes importing or some other offence under the Controlled Drugs and Substances Act (CDSA), S.C. 1996, c. 19. It also satisfies the coincidence principle, the procedural requirement that the offence be committed in Canada, and whether the evidence adduced establishes the physical element or is simply evidence of after-the-fact conduct.
[40] The decision in Bell v. R., 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, is dispositive of when the offence of importing is complete. Importing is not a continuing offence. Its physical element or actus reus is complete when the controlled substance enters the country. In cases of personal carriage of the contraband, such as Foster, the physical element is complete when the carrier and contraband clears customs. But this case-specific finding cannot apply to controlled deliveries. This is because possession, which occurs in the controlled delivery cases, is not an essential element of the offence of importing. To extend the offence of importing until the controlled substance comes into the possession of the intended recipient is unsupportable in principle. The decisions in Onyedinefu, 2018 ONCA 795, and Buttazzoni, 2019 ONCA 645, were wrong to have done so and should not be followed.
[41] The definition of “importing” – in particular, the outer boundary of its physical element – must also respect Parliament’s intention to create separate offences to criminalize post-importing conduct, such as trafficking and possession for the purpose of trafficking. To expand the definition of importing to take in domestic transportation and control of controlled substances overrides Parliament’s intention to distinguish among these offences. By parity of reasoning, disparity in the sentencing ranges applicable to importing and the other offences supports a similar conclusion.
[42] The respondent says that no matter when the offence is considered complete, when the fentanyl arrived in British Columbia or when the intended recipient took possession of the package in Ontario, the appellant was guilty and properly convicted of importing. The charge to the jury made it clear that to find the appellant guilty of importing, the jury had to find that the appellant had knowledge of the importing and was responsible for bringing or causing the fentanyl to be brought into Canada. The jury found the appellant guilty on the basis of these instructions. In other words, the jury was satisfied that the appellant was a principal in the offence of importing.
[43] The trial judge, the respondent urges, correctly outlined the elements of the offence of importing. To find the appellant guilty, the trial judge said, the jury had to be satisfied beyond a reasonable doubt that the appellant was “responsible” for the importing. When combined with the precise language of the Bell majority – “to bring [a controlled substance] into the country”, or “cause someone else to bring it in” from outside Canada, this combination provided a proper basis to ground a conviction. No further, or more specific instruction was sought or necessary.
[44] The respondent points out that the failure of the trial judge to specifically instruct the jury about when the physical element or actus reus of importing was complete – an instruction not sought at trial – is of no real moment. The case was left to the jury on the basis that the appellant was responsible for bringing in the fentanyl or causing it to be brought into Canada. Evidence of the appellant’s subsequent conduct afforded cogent evidence of her earlier involvement in the importation. There was no misdirection or non-direction amounting to misdirection in the final instructions to the jury.
The Governing Principles
[45] The principles that inform our decision on this ground of appeal have been examined at length in our reasons in the companion case of Okojie released concurrently. It is unnecessary to repeat that analysis here. For our purposes, it is enough to extract some basic principles against which to measure the adequacy of the instructions given at trial.
[46] Like all true crimes, importing consists of a physical element and a fault element. Each element must be established by relevant, material and admissible evidence beyond a reasonable doubt. At some point, the two elements must coincide: Okojie, at para. 95.
[47] The physical element in importing requires proof that an accused imported a substance. That substance must be included in the same Schedule under the CDSA as the substance alleged in the indictment. To import a substance means to bring a substance, or to cause a substance to be brought into Canada from abroad. This does not require that the accused actually carried the substance into Canada. Nor does it require that the accused be present when and where the substance enters Canada. The offence may be committed in part at more than one place in Canada. But in each case, there must be a nexus between the accused and the importation: Okojie, at paras. 64, 96, 99.
[48] The physical element of importing is complete when the controlled substance “enters the country”. When a controlled substance “enters the country” depends, to some extent at least, on the manner in which the importing occurs. When the physical element of importing concludes is of importance in determining the criminal liability of a person charged with importing. This is so because if an accused’s only participation is after the offence has been completed, their liability for importing cannot be established. However, evidence of after-the-fact conduct, of things said and done, may help to establish antecedent participation in importing. The physical element ends when the controlled substance from abroad is no longer in the control of the appropriate authorities: Okojie, at paras. 113-14.
The Principles Applied
[49] Although a fuller instruction could have been provided than what was given, I am not persuaded that what was said reflects prejudicial error. I reach this conclusion for essentially four reasons.
[50] This case involved a controlled delivery. The contraband was shipped by mail. It came into Canada from China. The package was opened, its contents inspected, and found to contain fentanyl, a highly toxic controlled substance. The fentanyl was removed, the package forwarded, always in the control of the authorities, until it was delivered to the appellant’s home. The appellant was the addressee.
[51] At trial there was evidence of communications to and responses by the appellant alerting her to an impending delivery. The jury was entitled to reject, perhaps even to find fabricated, the explanation advanced at trial by the appellant and Munro about the nature of the delivery. The jury could conclude from the appellant’s conduct between the failed first delivery and the second completed delivery that the urgency revealed had nothing to do with a parcel containing children’s books and clothing.
[52] Second, the position of the appellant at trial. The position advanced by the appellant at trial was an outright denial of any involvement with the package that had contained the fentanyl. The only delivery with which she was involved had to do with a package said to originate in Nova Scotia. A package of children’s books and clothing. She did not dispute that the delivered package from China was imported. Rather, she simply denied any involvement in its importation. In these circumstances, it is difficult to see how an instruction that the physical element of importing ended on delivery would have benefited the appellant in light of the defence she advanced at trial.
[53] Third, the terms of the instruction provided.
[54] The instructions given on the physical element of importing are consistent with the meaning assigned to “import” by the majority in Bell. The trial judge instructed the jury that to find this element established, they had to be satisfied that the appellant was responsible for bringing fentanyl into Canada. The use of the term “responsible” adequately conveyed to the jury that, to find this element proven, the jury had to be satisfied beyond a reasonable doubt that the appellant was the person or at least one of the persons who caused the importing to take place. This is the functional equivalent of the Bell majority’s “cause to be brought into” the country.
[55] Fourth, the position of counsel at trial.
[56] The trial judge provided counsel with copies of his proposed charge well in advance of its delivery. Counsel had ample opportunity to make submissions about errors and omissions, and to suggest any additional instructions that should be included. Defence counsel took no objection to the instructions now said to have been deficient. Nor did counsel suggest that anything be added to better explain to the jury this essential element of importing.
Ground #2: Unreasonable Verdict on Importing
[57] This is the first of two grounds of appeal that allege the jury reached an unreasonable verdict. In large measure, my conclusion on the first ground of appeal precludes success on this ground. This is because the complaint about unreasonableness is dependent on a submission concerning when importing is complete and that submission was rejected in not giving effect to the first ground of appeal.
[58] It is unnecessary to repeat the evidentiary background rehearsed earlier. A convenient point of departure is the arguments advanced in this court.
The Arguments on Appeal
[59] The appellant reminds us that a verdict is unreasonable if it is one that a properly instructed jury, acting judicially, could not have reached. Since the evidence in this case is entirely circumstantial, to find the appellant guilty of importing, the jury must have concluded that the appellant’s guilt was the only reasonable inference available from the evidence taken as a whole.
[60] In this case, the appellant argues, the offence of importing was complete when the package entered British Columbia. This was the date the offence was alleged to have occurred in the indictment. The trial judge failed to properly define when the offence was complete. The principal evidence against the appellant, apart from being a person to whom the package was addressed, was text messages and other conduct that took place over two weeks later. In these circumstances, without a proper direction about when the offence was complete, the jury could not properly have concluded that the appellant’s guilt was the only reasonable inference available on the evidence considered as a whole. Another reasonable inference was available on the evidence – that the appellant’s only involvement with the package occurred after the importing was over and done with.
[61] The respondent acknowledges the standard of review applicable generally to claims of unreasonable verdict and that governing unreasonableness claims when the case for the Crown consists entirely of circumstantial evidence. In deciding whether a verdict is unreasonable, we are entitled to conduct only a limited weighing of the evidence as a whole within the limits of appellate disadvantage. Provided the evidence, taken as a whole, is reasonably capable of supporting the verdict, the verdict must stand.
[62] In this case, the cumulative effect of the evidence supports the verdict of the jury. Several items of evidence, taken together, support the inference that the appellant was awaiting a package from overseas and that she had agreed to receive it before it was mailed to Canada. Among the items of evidence:
• the appellant was the addressee at her current home address;
• the sender was in China;
• the appellant directed Roman to accept the package on her behalf;
• after the failed delivery, the appellant returned home, checked the mailbox and house and left quickly;
• at the same time, the appellant constantly texted Roman about the package from Canada Post;
• after the failed delivery, the appellant texted Roman “That was an important package FK man”;
• the appellant was relieved when the package was delivered;
• the appellant lied to the police that she was not expecting a package; and
• the fentanyl in the package as shipped was valued at about $320,000.
The Governing Principles
[63] The controlling principles spark no controversy.
[64] First, unreasonable verdict.
[65] A verdict is unreasonable if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. We must conduct our review of a jury verdict within two well-established boundaries. We must accord due weight to the advantage of the jury as the trier of fact, present throughout the trial, ear and eyewitness to the evidence as it unspooled. This is an advantage denied us at one remove from the trial process. We must be resolute in our resistance to re-try the case and to label a verdict “unreasonable” simply because we have a reasonable doubt based on a lifeless printed record. But our review is not limited to an assessment of the sufficiency of the evidence adduced at trial to determine whether there was some evidence which, if believed by the jury, supports the conviction. We must review, analyze, and, within the limits of appellate disadvantage, weigh the evidence, and consider, through the lens of judicial experience, whether judicial fact-finding precludes the jury’s conclusion: W.H., at paras. 27-28.
[66] Where the case for the Crown depends wholly or substantially on circumstantial evidence and a conviction is impeached as unreasonable on appeal, the issue for the appellate court is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.
[67] Second, proof by circumstantial evidence.
[68] Proof of an issue of fact, such as importing a controlled substance, may be established by direct evidence, by circumstantial evidence, by an admission of fact, or by some combination of these various means of proof. Where circumstantial evidence is involved, the inference-drawing process may involve any or all of three methods of reasoning:
• prospectant (for example, motive);
• concomitant (for example, skill, means, opportunity);
• retrospectant (for example, after-the-fact conduct).
The fundamental inquiry is one of relevance, whether the claimed conclusion is a probable inference from the offered fact: John Henry Wigmore, revised by Peter Tillers, Wigmore on Evidence, vol. 1A (Toronto: Little, Brown and Company, 1983) at § 43, pp. 1138-42.
[69] The inference involved when evidence of after-the-fact conduct is received looks backward from the evidentiary fact offered to the act alleged. Evidence of after-the-fact conduct refers to evidence of things done and said by an accused after the offence charged was alleged to have been committed: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106, per Martin J. (dissenting, but not on this point). Although proof of an accused’s involvement in collection of imported items, such as controlled substances, does not prove, on its own, that the accused is the importer, that activity may be circumstantial evidence tending to prove that the accused was in fact the importer: R. v. Toe, [2010] SASC 39, 238 FLR 137 (South Australia S.C.), at para. 76.
[70] The assessment of circumstantial evidence, whether by triers of fact at first instance or by an appellate court on a review for unreasonableness, does not involve an examination of individual items of circumstantial evidence in isolation and separately from the rest, adjudging them against the criminal standard of proof and rejecting them if they are found wanting, as surely they will be. No individual item of circumstantial evidence is ever likely to do so. They are the building blocks of proof, not the final product. It is commonplace that individual items of evidence adduced by the Crown examined separately and in isolation, have not a very strong probative value. But all the pieces have to be considered. Each one in relation to the whole. And it is the whole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
The Principles Applied
[71] I would not give effect to this ground of appeal.
[72] At the outset, the question to be answered is whether the jury, acting judicially, could reasonably have been satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence. Further, we must be mindful that the circumstantial evidence does not have to totally exclude other conceivable inferences and that a verdict is not unreasonable because the alternatives do not raise a doubt in the jury’s mind. It remains fundamentally for the trier of fact to decide whether any proposed way of looking at the case is reasonable enough to raise a doubt: Villaroman, at paras. 55-56.
[73] An integral component of the appellant’s assertion of unreasonableness is her complaint of inadequacy in the trial judge’s instruction about when the physical element of importing was complete. As explained earlier, that argument fails in this case. The instructions given and the verdict rendered make it clear that the jury was satisfied that the appellant was responsible for importing the fentanyl.
[74] The appellant was the consignee of a package mailed from China. The package contained fentanyl. Its value was $320,000. The appellant exchanged text messages to be on the lookout for this package. She took steps to ensure that the package was accepted when delivered. It beggars belief that anyone would ship $320,000 worth of goods to an address thousands of miles away to anyone who was not a participant in the importation.
Ground #3: Unreasonable Verdict: Possession of Fentanyl for the Purpose of Trafficking
[75] The appellant was also found guilty and convicted of possession of fentanyl for the purpose of trafficking on or about November 4, 2016. At no time did she have actual physical possession of the fentanyl. By November 4, 2016 when the package was delivered, the fentanyl had been removed. She contends that her conviction was unreasonable. The focus of her submissions is twofold. First, the failure of the trial judge to instruct the jury on the included offence of attempting to possess fentanyl for the purpose of trafficking. Second, the absence of evidence of the appellant’s possession of the actual drug.
[76] The background necessary to understand this ground of appeal may be briefly stated.
The Essential Background
[77] The package containing the fentanyl sent from China was received at the International Mail Centre in Richmond, British Columbia. There, the package was opened, its contents examined. Testing confirmed that a substance found in the package was fentanyl. Because of its toxic nature, the fentanyl was removed from the package. Not even a control sample remained. The package was put back together and re-entered the mail system for a controlled delivery to the appellant in accordance with the terms of a general warrant.
[78] The controlled delivery took place. The appellant directed her ex-boyfriend to take delivery of the package. He did so. When police arrived to execute a search of the appellant’s home, they found the package, unopened on a table in the front hall. The appellant arrived home shortly thereafter. It is common ground that there was no fentanyl in the package.
The Charge to the Jury
[79] At the close of the case for the Crown, the appellant did not seek a directed verdict of acquittal. She did not seek a full acquittal to remove possession for the purpose of trafficking from consideration by the jury, or a partial directed verdict, removing the full offence, but leaving an attempt to possess fentanyl for the jury’s assessment.
[80] The trial judge provided copies of his proposed charge to counsel in advance of its delivery and invited submissions about any errors or omissions. Trial counsel did not seek an instruction on attempted possession for the purpose of trafficking or object to its absence.
[81] In his charge to the jury, the trial judge explained the elements of both actual and constructive possession. He adverted to the fact that the police had removed the fentanyl from the package before it was received by the appellant. The trial judge explained that “a person who knowingly has a substance in the actual possession or custody of somebody else, or in some place for the use or benefit of him or herself or somebody else, has that substance in his or her possession provided she has some element of control over that substance”. He went on to instruct the jury that “if the evidence satisfies you beyond a reasonable doubt that Ms. Hudson believed the package contained fentanyl, and was aware Mr. Roman had accepted that package on her behalf, and that Mr. Roman placed the package in her residence for her, this will meet the legal definition of possession. You can find that Ms. Hudson was in possession of the fentanyl”. He told the jury that if they were not satisfied that the Crown had proven all the essential elements of the offence beyond a reasonable doubt they should find the appellant not guilty of possession of fentanyl for the purpose of trafficking.
The Arguments on Appeal
[82] The appellant says that the trial judge erred in law in failing to instruct the jury on the included offence of attempt to possess fentanyl for the purpose of trafficking. There was an air of reality to the claim that what occurred here amounted to no more than an attempt. For the completed offence, an accused must have control over the controlled substance itself, coupled with knowledge of the controlled substance and an intention to traffic in it. Here, the appellant had no control over the actual drug which had been removed in its entirety from the shipped package.
[83] In this case, the appellant contends, the charge to the jury ignored an essential element of the offence – possession of the controlled substance alleged. The appellant had no control over the fentanyl, even if she could be found to have possession of the package in which it had been contained. The failure to instruct the jury about the absence of evidence of this essential element of the offence – whether the appellant had any control over the fentanyl – should require entry of an acquittal on the count of possession of fentanyl for the purpose of trafficking. At worst, a new trial should be ordered on attempt to possess fentanyl for the purpose of trafficking.
[84] The respondent urges rejection of this ground of appeal, an argument advanced for the first time in this court. That police removed the fentanyl, a highly toxic controlled substance, from the package prior to completion of delivery of the package does not preclude the appellant’s conviction of the full offence of possession for the purpose of trafficking.
[85] According to the respondent, the appellant was in constructive possession of the fentanyl when the controlled substance was in the actual possession of the police. The possession component of the offence of possession for the purpose of trafficking may be established on any basis authorized by s. 4(3) of the Criminal Code, R.S.C. 1985, c. C-46. Possession is not restricted to actual physical possession but includes constructive and joint possession.
[86] The respondent says that when the fentanyl was mailed to the appellant’s home address from China, the controlled substance entered the actual possession or custody of the postal service for delivery purposes. The postal service maintained custody of the package and its contents for the exclusive benefit of the appellant as its addressee. The obligation and assurance of the postal service that it would deliver the package and its contents to the appellant at her address and to no one else established a sufficient level of control to establish her liability for possession. Actual delivery of the contents was not required.
[87] This case involves a highly toxic controlled substance. Its removal, to avoid serious risk of harm or even death to any would-be recipient, should not shield the persons responsible for its shipment from criminal liability. At worst, the court should substitute a conviction for an attempt to possess fentanyl for the purpose of trafficking. The appellant agreed to receive the package, aware of and with the intention to possess its contents, and knowing that the purpose of its possession would be to traffic in those contents. The appellant’s liability crystallized once the package was mailed, or at the very least, when she returned home to recoup the package her ex-boyfriend had accepted on her behalf. The failure of the trial judge to instruct on the inchoate offence of attempt was a harmless error in the circumstances.
The Governing Principles
[88] Section 4(3) of the Criminal Code defines what constitutes possession for the purposes of the Criminal Code. Section 2(1) of the CDSA exhaustively defines “possession” for CDSA purposes as meaning “possession within the meaning of subsection 4(3) of the Criminal Code”. And in s. 34(2) of the Interpretation Act, R.S.C. 1985, c. I-2, makes all Criminal Code provisions relating to indictable offences applicable to indictable offences created by other federal enactments, except to the extent that the enactment otherwise provides.
[89] Under s. 4(3) of the Criminal Code, thus for the purposes of s. 5(2) of the CDSA, possession includes personal possession, constructive possession, and joint possession. Thus, possession need not be personal or actual, but may be constructive, as for example under s. 4(3)(a)(ii): R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15. Knowledge and control are essential elements common to both personal and constructive possession.
[90] Constructive possession may be established where an accused does not have physical custody of the subject-matter in question, provided they have the subject-matter “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”. In other words, constructive possession is complete when an accused:
i. has knowledge of the character of the object;
ii. knowingly puts or keeps the object in a particular place, irrespective of whether the place belongs to the accused; and
iii. intends the object be for anyone’s benefit, including that of the accused.
See, Morelli, at para. 17.
[91] Some authorities have considered the impact of police intervention in shipments of contraband before those shipments reach the consignee. In Bell, where a small amount of contraband was left in the shipment, all members of the court considered that the police intervention was irrelevant to the appellant’s liability for importing: Bell, at pp. 482, 491.
[92] In R. v. Bremner, 2007 NSCA 114, 229 C.C.C (3d) 513, the appellant appealed his conviction of possession of crack cocaine for the purpose of trafficking. The offence occurred when Bremner was in prison. The evidence demonstrated that the cocaine was part of a package Bremner had ordered his drug-dealing subordinates to smuggle into the prison where Bremner was housed. The Crown alleged that Bremner had sufficient control over his subordinates that he was in constructive possession of the drugs which were never delivered. The external source of the drugs was a police informer under police control.
[93] The Nova Scotia Court of Appeal rejected an argument by Bremner that, since he had no control over the drugs, he could not be in possession of them, thus could not be found guilty of possession of cocaine for the purpose of trafficking. It followed, the appellant argued, that his conviction was unreasonable.
[94] The court referred to the concept of joint police-offender control and concluded that a measure of control by one person (the police) does not necessarily exclude the control required to establish possession by another person (Bremner): Bremner, at para. 54, citing R. v. Miller et al (1984), 1984 CanLII 637 (BC CA), 12 C.C.C. (3d) 54 (B.C.C.A.), at p. 90. See also, R. v. Harrison (1982), 1982 ABCA 152, 67 C.C.C. (2d) 401 (Alta. C.A.), at p. 417.
[95] In R. v. Bonassin, 2008 NLCA 40, 236 C.C.C. (3d) 562, police seized a computer from the office of a courier company under the authority of a search warrant. Concealed in the computer were cocaine and marijuana. Police extracted the drugs, inserted books of similar weight and had the courier company deliver the package to its original destination. Although the appellant was not the addressee, he was working at the delivery address and accepted the package. Shortly after the delivery, the appellant went out of the house. He had the package and a suitcase with him. He then returned to the house where police arrested him.
[96] The appellant was charged with possession of cocaine and marijuana for the purpose of trafficking. At trial, the appellant testified that his only purpose for being at the residence was to purchase marijuana. He had no intention of taking the package with him. He was simply moving it out of the doorway so that he could leave the house. The trial judge disbelieved the appellant’s story and convicted him.
[97] On appeal, the appellant argued that the trial judge erred in finding guilt established because the package that was actually delivered contained no drugs. The court was satisfied that the evidence disclosed that the appellant and addressee had agreed before the drugs were removed that he would accept the package. Thus, the appellant and addressee had knowledge of the drugs and exercised control over them until they were seized by police. They were in joint possession of the drugs in advance of delivery. Since joint possession was established, the majority considered it unnecessary to determine the effect of police removal of the drugs and delivery of an empty package.
[98] A final point concerns the nature of offences of which possession is an essential element. In Bell, McIntyre J. described a continuing offence as an offence in which the conjunction of the actus reus and the mens rea, which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements for the commission of the offence continues, leaving the accused in a state of criminality while the offence continues. McIntyre J. cited possession of goods knowing them to have been obtained by the commission of theft as an example of a continuing offence: Bell, at p. 488.
The Principles Applied
[99] As I will explain, I would not give effect to this ground of appeal. I am satisfied that the appellant was in constructive or joint possession of the fentanyl, that her possession was not broken by police removal of the fentanyl, and the purpose of her possession was to traffic the controlled substance.
[100] The package containing the fentanyl was sent by mail to the appellant. On the evidence, the appellant was expecting a package containing drugs, and she was the addressee of the package. In these circumstances, the appellant had joint possession of the package and its contents with the postal service before the drugs were removed. The indictment alleged possession for the purpose “on or about November 4, 2016”. The “on or about” language is typical of criminal pleading and sufficiently expansive to include the date on which the package was opened and before its contents were removed: see Bell, at p. 485.
[101] However, that the expansive “on or about” language in the count encompasses possession prior to removal of the fentanyl is not the end of the matter. I will explain why.
[102] The indictment included three counts: importing, possession for the purpose, and simple possession. Each offence was alleged to have been committed “on or about November 4, 2016”. The controlled delivery occurred on November 4, 2016. At that time there was no fentanyl in the package.
[103] In his instructions on importing, the trial judge emphasized that to find the appellant guilty, the jury had to find that she was “responsible” for bringing fentanyl into Canada from abroad. The jury was satisfied that she was responsible for the importation. That finding, in these circumstances, meant that the appellant was in possession of the fentanyl under ss. 4(3)(a)(i)(ii) or s. 4(3)(b) of the Criminal Code. Other evidence was available to establish that the amount imported was for the purpose of trafficking. This was sufficient to establish the appellant’s guilt of possession for the purpose and the impact, if any, of the actual delivery of the package without fentanyl on the appellant’s liability for possession for the purpose would not arise.
[104] On the other hand, if the jury were to have had a reasonable doubt that the appellant was “responsible” for the importation of the fentanyl and to have found her not guilty of that offence, then they would have had to consider the impact of the removal of the fentanyl on her liability for possession for the purpose. Absent possession of the fentanyl, the appellant could not be convicted of the full offence of possession for the purpose of trafficking in it.
[105] Since there is to be a new trial on the indictment, it will fall to counsel and the trial judge to consider this prospect and determine whether it will be necessary to instruct the jury on the availability of a verdict of attempted possession for the purpose of trafficking on the count charging the completed offence.
Ground #4: The Instruction on Circumstantial Evidence
[106] The evidence on which the Crown relied to establish the appellant’s guilt was entirely circumstantial. This ground of appeal asserts that the charge to the jury failed to equip the jury with the tools necessary to evaluate this evidence in determining whether, taken as a whole, it satisfied the standard of proof necessary in such cases.
[107] The only background necessary to evaluate this claim of error is a brief reference to the charge itself and the process leading up to its final form.
The Essential Background
[108] The trial judge distributed drafts of his proposed instructions to counsel for review and discussion at pre-charge conferences. The first draft, distributed when Hazare Roman was a co-accused, included a specific instruction about the standard of proof required when the case against an accused rested entirely on circumstantial evidence. The instruction was expressly limited to the case against Hazare Roman.
[109] When the second draft was circulated, Hazare Roman was no longer a co-accused. He had changed his plea and played no further part in the trial. The second draft pointed out the difference between direct and circumstantial evidence and provided a typical example explaining the difference between the two types of evidence. The instruction also advised the jury that it should consider both direct and circumstantial evidence in deliberating on its verdict and that the law treated each equally as a means of proof. The instruction about circumstantial evidence which had been included previously in relation to the former co-accused, Hazare Roman, was not included. Nor was any instruction in equivalent terms included about the case against the appellant.
[110] The final version of the instructions included a passage describing the difference between direct and circumstantial evidence, illustrated by a commonplace example, and a direction that both kinds of evidence – direct and circumstantial – were treated equally by the law.
[111] The charge also included instructions on the presumption of innocence, the burden and standard of proof, and a W.(D.)-compliant direction on the testimony of the appellant.
[112] At no time during the pre-charge conference or after the charge had been delivered did defence counsel – or for that matter, Crown counsel – ever seek a circumstantial evidence-specific instruction on the standard of proof.
The Arguments on Appeal
[113] The appellant says that where the case for the Crown consists entirely or substantially of circumstantial evidence, the standard of proof requires that the jury be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the evidence taken as a whole. The trier of fact must also understand that inferences inconsistent with guilt need not be based on proven facts but can arise from the absence of evidence.
[114] In this case, the appellant submits, the trial judge failed to instruct the jury properly about the requirements of the standard of proof necessary in cases consisting entirely of circumstantial evidence. As a result of this omission, the presumption of innocence was undermined and the burden of proof reversed. The judge fell short of what Villaroman requires in two significant respects. First, he failed to tell the jury that inferences inconsistent with guilt need not arise from the evidence but may also emerge from the absence of evidence. Second, he omitted to tell the jury that even if they were satisfied that the Crown had negated the exculpatory explanation advanced by the appellant, they had to consider the whole of the evidence, including the testimony of the defence witnesses, to determine whether the appellant’s guilt had been proven beyond a reasonable doubt.
[115] The appellant acknowledges that trial counsel’s failure to object to the omission of these instructions is a relevant factor for us to consider in our assessment of this ground of appeal. However, this failure is not fatal. This is so because a proper instruction on the onus and standard of proof is essential to a fair trial.
[116] The respondent contends that no particular form of instruction is required to ensure jurors understand the onus and standard of proof in cases consisting entirely or substantially of circumstantial evidence. The essential requirement is that the jury understand that they must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference that can be drawn from the evidence as a whole. That message was adequately conveyed to the jury in this case.
[117] In this case, the respondent points out, the trial judge explained to the jury and illustrated by example the difference between direct and circumstantial evidence. He told them that both types of evidence count in assessing whether guilt has been proven beyond a reasonable doubt. From these instructions, the jury would understand that, since both direct and circumstantial evidence were equals as means of proof, both had to meet the standard of proof beyond a reasonable doubt before a finding of guilt could be made. In addition, the jury were told that a reasonable doubt could arise from the evidence or the absence of evidence. No distinction was drawn between circumstantial and direct evidence in this respect.
[118] The appellant testified. She, together with her friend, Louisa Munro, provided an alternative explanation. They said that a different package was being delivered. From Nova Scotia, not from China. The jury rejected that explanation. No other explanation was advanced. None emerged from the evidence. No further instructions were necessary.
The Governing Principles
[119] An instruction about circumstantial evidence alerts jurors to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence. The danger is the risk that jurors will “fill in the blanks” or “jump to conclusions”. As a result, it is generally helpful that the jury, in a case where proof of one or more essential elements of the offence depends exclusively or largely on circumstantial evidence, be cautioned about too readily drawing inferences of guilt. However, the message may be delivered in different ways. No particular language is required. Instructing the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that the evidence permits is often a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative explanations: Villaroman, at para. 30.
[120] In cases such as this, where proof of guilt depends entirely or substantially on circumstantial evidence, a trial judge may assist the jury in understanding the risk of jumping to conclusions from the evidence in different ways. How this end is achieved in any particular case is left largely to the discretion of the presiding judge: Villaroman, at para. 31. There are different ways in which to assist the jury. This includes instructing the jury in the traditional language of reasonable doubt and charging the jury in accordance with that language, then pointing out the contrary inferences advanced by the defence and the necessity of acquittal if any of the contrary inferences leave a reasonable doubt about the accused’s guilt: R. v. Fleet (1997), 1997 CanLII 867 (ON CA), 36 O.R. (3d) 542 (C.A.), at para. 20; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; Villaroman, at paras. 18, 20.
The Principles Applied
[121] In my respectful view, this ground of appeal cannot prevail despite the absence of an instruction in language typical of most instructions given in this province about the standard of proof required in cases involving circumstantial evidence.
[122] To begin, we have long abandoned any legal requirement that a “specific instruction” be given on circumstantial evidence. No particular language is required. To be certain, telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference the evidence permits, as the Villaroman court noted, will often be a succinct and accurate way of helping the jury guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences: Villaroman, at para. 30. But, as Villaroman, and Griffin before it, emphasized, the Hodge’s Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, formula – the historically provided special instruction on the application of the burden of proof in cases of circumstantial evidence – is not the only way: Villaroman, at para. 31; Griffin, at para. 33.
[123] In this case, the trial judge instructed the jury about the differences between direct and circumstantial evidence. He illustrated the difference between the two types of evidence with a commonplace example that 21st-century jurors could not fail to understand. The judge explained that both types of evidence were available for the jury to consider in deciding the case and of equal value in making that decision. The judge instructed the jurors on their task: to decide what conclusions they would reach based upon the evidence, as a whole, both direct and circumstantial.
[124] Earlier in his charge, the trial judge instructed the jury on the presumption of innocence and the burden and standard of proof. Among the specific instructions on reasonable doubt, was a direction that a reasonable doubt could arise not only from the evidence, but also from “the absence or lack of evidence”. The trial judge also included a W.(D.) instruction based on the appellant’s testimony that she had nothing to do with the package of fentanyl addressed to her and no knowledge that the package was being shipped to her. He told the jury that if they could not decide whom to believe, they must find the appellant not guilty.
[125] In this case, the trial judge charged the jury in accordance with the traditional language of proof beyond a reasonable doubt. He made it clear that it was the evidence as a whole, both direct and circumstantial, that the jury was required to consider to decide whether the standard of proof beyond a reasonable doubt had been met. The trial judge also pointed out the alternative inference advanced by the defence on the basis of the appellant’s testimony – that she was expecting another package that had nothing to do with fentanyl. The charge contains repeated reference to the obligation of the Crown to prove each essential element of the offence beyond a reasonable doubt before the jury could find the appellant guilty of any offence.
[126] The procedure followed by the trial judge in settling upon his final instructions provided counsel with ample opportunity to seek instructions of the nature now said to have been required. No such request was ever made. Not before the charge. And not after. This, despite inclusion of such an instruction in relation to the former co-accused.
[127] I do not gainsay the value of what has become the traditional instruction which Villaroman characterizes as “helpful”. In cases such as this, where the case for the Crown, as a whole or on a particular essential element, consists exclusively or substantially of circumstantial evidence, the traditional instruction should be given. But, as the authorities have repeatedly said, no specific language is required. In this case, taking the charge as a whole, I am satisfied that the jury was properly instructed.
Ground #5: Instructions on After-the-Fact Conduct
[128] The appellant next argues that the trial judge erred in his instructions on evidence of after-the-fact conduct. The error is said to arise because the trial judge mischaracterized evidence of after-the-fact conduct as evidence of the offence itself. This, coupled with a failure to properly define when the offence of importing was complete and to define the case as entirely circumstantial, resulted in a failure to properly instruct the jury on evidence of after-the-fact conduct.
The Background
[129] The evidence which is said to have attracted an instruction that was not given has already been summarized and need not be repeated. It consists of things done and said by the appellant on being advised of the attempted delivery and the later completed delivery.
The Charge to the Jury
[130] No specific instruction was sought or given on evidence of after-the-fact conduct.
The Arguments on Appeal
[131] The appellant argues that the failure of the trial judge to properly instruct the jury on evidence of after-the-fact conduct is the result of two other errors in the charge. The failure to properly define when the offence of importing was complete. And the failure to characterize or define the case as one consisting entirely of circumstantial evidence. In combination, these errors led the trial judge to characterize what was evidence of after-the-fact conduct as evidence of the offence itself.
[132] Where the case for the Crown consists of or includes evidence of after-the-fact conduct, it is incumbent on the trial judge to explain to the jury that this evidence should be approached cautiously. The jury should be instructed to determine first whether the accused engaged in the after-the-fact conduct, then whether the conduct related to the offence charged. And finally, to consider the conduct, together with all the other evidence, before deciding whether the accused’s guilt has been proven beyond a reasonable doubt.
[133] In this case, the trial judge erred in failing to identify this evidence as evidence of after-the-fact conduct and instruct the jury in such a way as to protect against the dangers that they would jump too quickly from this conduct to guilt. This omission resulted in a further reversal of the burden of proof.
[134] The respondent disputes the characterization of this evidence as evidence of after-the-fact conduct. Regardless of when the importing offence was complete, evidence of the text messages and related conduct was circumstantial evidence of the appellant’s involvement in the importing offence. Nor was it evidence of after-the-fact conduct in relation to the count charging possession of fentanyl for the purpose of trafficking. It afforded evidence of the appellant’s constructive possession of the package.
[135] Even accepting the appellant’s characterization of the evidence as evidence of after-the-fact conduct, the respondent says, does not command a special caution. Evidence of after-the-fact conduct is not some special category of evidence. It is not subject to a specific instruction or caution. It is circumstantial evidence that invokes a particular chain of reasoning. No more. No less. No special instruction was necessary. None given. No harm. No foul.
The Governing Principles
[136] Evidence of after-the-fact conduct encompasses evidence of what an accused said and did after the offence with which the accused is charged is alleged to have been committed. Its boundaries are co-extensive with the limits of human experience. It is not offence-specific, but rather is non-discriminatory in relation to offences and legal settings. Its proper legal treatment is highly context and fact-specific: Calnen, at para. 106, per Martin J. (dissenting, but not on this point).
[137] Evidence of after-the-fact conduct is not some special category of evidence. It is circumstantial evidence. Nothing more. Nothing less. Granted, it invokes a chain of reasoning different from other circumstantial evidence – retrospectant, rather than prospectant or concomitant. But that it does so does not alter its fundamental nature. And like other items of evidence received in a criminal trial, evidence of after-the-fact conduct is received if it is relevant, material, admissible under the applicable rules of evidence, and not excluded because its prejudicial effect exceeds its probative value: Calnen, at para. 107, per Martin J. (dissenting, but not on this point).
[138] As with other forms of circumstantial evidence, evidence of after-the-fact conduct allows the trier of fact to draw inferences grounded in an accused’s words and conduct. There is nothing new or unique about this. To draw inferences, the trier of fact invokes logic, common sense, and human experience. As with all circumstantial evidence, evidence of after-the-fact conduct sponsors a range of inferences each of which must be reasonable according to the measuring stick of human experience. The inferences available depend on the nature of the conduct, the inference sought to be drawn from it, the positions of the parties, and the totality of the evidence. Evidence of after-the-fact conduct is not nullified simply because it may generate a range of inferences. For the most part, it is for the trier of fact to choose among those reasonable inferences which inference will be drawn: Calnen, at para. 112, per Martin J. (dissenting, but not on this point).
[139] Evidence of after-the-fact conduct may give rise to imprecise reasoning. It may encourage triers of fact to jump to questionable conclusions. It may seem more probative than it is. And so it is that judges should instruct juries to take into account any alternative explanations advanced for the accused’s behaviour. And in some cases, further specific limiting instructions or cautions may be necessary to counteract any specific reasoning risks associated with the particular evidence: Calnen, at para. 118, per Martin J. (dissenting, but not on this point).
[140] As a general rule, evidence of after-the-fact conduct does not require any specific caution about its use in proof of guilt: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 21-22; R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 58. Evidence of after-the-fact words and conduct often comprises several individual incidents, whether of things said, done, or both. The evidence should be considered as a whole, not in a piecemeal fashion, and together with the rest of the evidence received at trial: R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at para. 47.
The Principles Applied
[141] For several reasons I am not persuaded that this ground of appeal is well founded.
[142] To begin, the evidence to which the appellant points, of text messages and conduct prior to delivery of the package, is not evidence of after-the-fact conduct. The offence of importing was not complete until the actual delivery to Hazare Roman of the package, thus removing the package but not the fentanyl from the control of the authorities. Thus viewed, this evidence cannot reasonably be characterized as evidence of after-the-fact conduct. It is simply circumstantial evidence of things done and said which is relevant to a material issue at trial – whether the appellant caused the fentanyl to be brought into Canada. As such, no special caution was required. It was part of the evidence the jury was entitled to consider in deciding whether the evidence as a whole satisfied the standard of proof required.
[143] Second, inherent in this submission of error is that evidence of after-the-fact conduct is some special category of evidence that requires some special caution to be included in jury instructions. This is not consistent with the prevailing authorities. Evidence of after-the-fact conduct is not some special category or species of evidence. It is circumstantial evidence. It does not command any particular form of instruction apart from a direction that jurors should take into account any alternative explanations for the accused’s behaviour. That was done here.
[144] Third, while not dispositive, trial counsel did not seek any specific instruction about this evidence or any particular direction about circumstantial evidence and the standard of proof. This, despite ample opportunity to do so at various pre-charge conferences when proposed final instructions were being discussed.
[145] Fourth, in this case there was no dispute about the behaviour in question. The texts were sent and received. The conduct between the failed and successful delivery well established. The only alternative explanation advanced – that the behaviour related to an entirely different package the appellant expected to receive and not a drug delivery – was put to the jury and plainly rejected by their verdict.
[146] Finally, there was nothing in the nature of this evidence which required any specific caution, as for example may be necessary where the evidence consists of an accused’s demeanour, lies, refusal to participate in an investigation or extrinsic misconduct.
Ground 6: Adverse Inference from Order of Defence Witnesses
[147] This ground of appeal arises out of a submission made by the trial Crown in his closing address to the jury and the trial judge’s response in his charge. The subject-matter is the order in which the defence witnesses testified at trial. To be more specific, the fact that the appellant testified as the second, rather than the first, defence witness.
The Background
[148] Prior to the closing addresses, the trial Crown indicated in the absence of the jury that he proposed to invite the jury in his closing address to draw an adverse inference against the appellant because she testified after Louisa Munro had testified. Defence counsel objected. The trial judge decided that the Crown was entitled to advance this argument.
[149] Since the defence called evidence, defence counsel addressed the jury first. In anticipation of what the Crown would later say, defence counsel explained in his closing address that counsel decided which witnesses to call and the order in which they would testify. He added that various reasons influenced the order in which witnesses testified, including the availability of the witness, and in some cases, the availability of the witness’ counsel.
[150] In his closing address, Crown counsel (not counsel on appeal) told the jury that there was a convention that an accused who testifies in their own defence testifies first before any other defence witnesses give their evidence. The Crown explained that an accused had the right to be present at their trial. However, the fact that an accused heard the evidence of other witnesses, in this case including Munro, was a factor that should affect the weight the jury should assign to her evidence. The Crown submitted that the appellant was simply trying to parrot in her testimony what Munro had said in her evidence.
The Jury Instructions
[151] In his charge to the jury, the trial judge said nothing about Crown counsel’s invitation to the jury to draw an adverse inference against the appellant from having testified second after having heard the evidence all other witnesses including Munro. The judge did tell the jury that there was no evidence why Munro brought a lawyer to court with her when she testified.
[152] The trial judge also instructed the jury that the decision to call the appellant to testify last was a decision for counsel to make. There could be many reasons why counsel made that decision to call Munro first, none of which emerged from the evidence at trial. The jury were told to ignore the “hypothetical reasons” advanced by defence counsel in his closing address.
The Arguments on Appeal
[153] The appellant begins with the uncontroversial. As the accused in a criminal trial, she was statutorily required and constitutionally entitled to be present at her trial. To see the witnesses testify. And to hear their evidence. It is legally wrong for a trial judge sitting as a trier of fact, to reject the testimony of an accused on the ground that it appeared to be tailored to testimony heard in court or structured to meet the case for the Crown. Equally inappropriate is a suggestion that an adverse inference can be drawn from the failure of an accused to testify before other defence witnesses.
[154] It is well settled, the appellant says, that an accused’s choice and constitutional right to testify after hearing the evidence marshalled against them cannot be turned into an evidentiary trap, a basis upon which to reject their evidence or a makeweight to shore up the case for the Crown. What happened here, through the comments of the trial Crown and the absence of corrective direction by the trial judge, was that the jury were invited to be suspicious of the appellant’s testimony because of the place in the witness lineup in which she testified. What was needed, but lacking, was a clear direction that no adverse inference could be drawn from the order in which the appellant testified.
[155] The respondent concedes that the trial judge erred in permitting the trial Crown to invite the jury to consider the timing of the appellant’s testimony in assessing her credibility. There should have been no mention of a “convention” that an accused testifies before other defence witnesses. It is inappropriate for either the Crown or the trial judge to suggest that the trier of fact draw an adverse credibility inference based on the order in which the accused testifies.
[156] However, the respondent continues, an error such as this does not automatically lead to the conclusion that the trial was unfair. In this case, the comment of the trial Crown was made in the context of a submission that the appellant and Munro fabricated their evidence about a different expected package with benign contents. This was a permissible line of argument on the evidence adduced at trial. Trial fairness was not compromised.
The Governing Principles
[157] The governing principles are well known.
[158] First, the order of witnesses.
[159] A trial judge has no authority to direct an accused to call witnesses in any particular order or to give evidence before any other witnesses: R. v. Sabir, 2018 ONCA 912, O.R. (3d) 465, at para. 39. The order or sequence in which defence witnesses testify is for counsel or the accused to determine: R. v. Smuk (1971), 1971 CanLII 1197 (BC CA), 3 C.C.C. (2d) 457 (B.C.C.A), at p. 462.
[160] Second, the evidentiary significance of an accused’s right to be present at trial and to determine the sequence of defence testimony. A person accused of a crime is statutorily required and constitutionally entitled to be present at their trial: R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14, at para. 24, citing R. v. Laws (1998), 1998 CanLII 7157 (ON CA), 128 C.C.C. (3d) 516 (Ont. C.A.), at para. 79; Criminal Code, s. 650(1). And at their trial, an accused is entitled to make full answer and defence: G.V., at para. 24.
[161] To give proper effect to this obligation and their entitlements, additionally an accused’s right to a trial that is at once apparently and actually fair, it is legally wrong for the Crown or the trial judge to invite the jury to impugn or discount the credibility of the accused on the basis that they have tailored their evidence to the testimony heard in the courtroom: G.V., at para. 25. Despite the logic in the suggestion that, as a person who gets full advance notice of the case for the Crown and testifies last, an accused is in a position to tailor their evidence to fit the case presented. However, the logic notwithstanding, no such inference can be invited or drawn without turning fundamental constitutional rights into a trap and exacting an evidentiary price for their exercise: G.V., at para. 26, citing R. v. White (1999), 1999 CanLII 3695 (ON CA), 42 O.R. (3d) 760 (C.A.), at para. 20.
The Principles Applied
[162] As I will explain, I would accede to this ground of appeal.
[163] The respondent acknowledges that the trial judge erred in permitting the trial Crown in his closing address to invite the jury to consider, in assessing the appellant’s credibility, that she testified last as a witness at trial. But the respondent says this error and the substance of the Crown’s closing did not render the trial unfair. I reach a different conclusion about the effect of the error on the fairness of the trial.
[164] In his closing address, the trial Crown told the jury that it was the convention in criminal trials that the accused testifies first before other defence witnesses. This is to ensure that the accused’s evidence is not tainted by hearing other defence witnesses before they (the accused) testify. The fact that, unlike other witnesses, the accused has the right to be present for the whole of their trial is another reason for the convention. The appellant heard Munro’s evidence. She knew what she had to say. This ought to affect the weight the jury should assign to the appellant’s evidence. The jury could not be sure that the appellant had not simply tried to parrot what Munro had said. As a result, the jury should be “extra skeptical when reviewing” the tale of the care package.
[165] The trial judge permitted the Crown to advance this argument and Crown counsel did so. Despite objection, the trial judge took no corrective action.
[166] It is common ground that Crown counsel’s reference to a convention that an accused testifies as the first defence witness is simply wrong. No such convention exists. The order of defence witnesses is for the defence to determine. It is not subject to bright-line rules. There is no set list. This erroneous statement of the law remained uncorrected.
[167] The trial Crown’s closing invited the jury to reject the appellant’s evidence because, as the accused who was present throughout the trial, she was in the unique position of having heard the storyline from Munro. This permitted her to parrot Munro’s version and made her evidence unworthy of belief.
[168] The closing address of Crown counsel invited the jury to use the appellant’s statutory obligation to be present at her trial, as well her constitutional entitlement to make full answer and defence, as a basis for skepticism about and rejection of her testimony. This turned the appellant’s statutory obligation and fundamental constitutional rights into a trap and imposed an evidentiary penalty for their exercise.
[169] Defence counsel, aware of this aspect of Crown counsel’s closing, attempted to blunt its impact. Required to address the jury before Crown counsel, defence counsel offered some possible explanations about why defence witnesses might testify in a particular order. The trial judge instructed the jury to ignore these explanations.
[170] In this case, the errors in Crown counsel’s closing address were not corrected. The jury was never told that there was no legal “convention” about the order of defence witnesses, in particular, that if an accused chose to testify in their own defence, they had to testify first. Further, the jury was never instructed that the fact that the accused was present throughout the trial and heard all the evidence before testifying was not a factor for the jury to consider in assessing the weight to be assigned to her testimony.
[171] In combination, these errors compromised the fairness of the appellant’s trial.
Ground #7: The Third Party Suspect Issue
[172] The final ground of appeal originates in a failed attempt at trial to adduce evidence about a known third party suspect as the person who caused the fentanyl to be mailed into Canada. The trial judge rejected the application after conducting a voir dire at which the alleged third party suspect testified.
[173] A brief reference to the application and the trial judge’s ruling will provide the background necessary for an evaluation of this claim of error.
The Essential Background
[174] Raza Khan is a former boyfriend of the appellant. The lease for the appellant’s residence, where the package in which the fentanyl had been secreted was delivered, was in Raza Khan’s name. Although Khan did not live with the appellant at the relevant time, she paid her rent to him by electronic money transfer. He forwarded the payment to the landlord. The appellant testified she had the only key to the home. She was not asked whether she ever saw Raza Khan or whether he ever came to her home.
[175] Raza Khan testified on a voir dire to determine whether the appellant would be permitted to adduce evidence in support of a third party or alternate suspect defence. He acknowledged that:
i. he sold cocaine and fentanyl;
ii. he had ordered drugs online;
iii. the drugs ordered online were shipped or mailed; and
iv. he has ordered drugs in the names of other persons, not his own.
[176] Raza Khan has a significant criminal record including two convictions in 2009 for possession of Schedule I and II controlled substances for the purpose of trafficking. In each case, he was sentenced to brief terms of imprisonment, one of which took into account more than seven months of pre-trial custody.
[177] Raza Khan said that he could not recall whether he had ordered drugs to be delivered to the appellant’s home or whether he had a key to her house. He was not asked whether he had previously ordered drugs in the appellant’s name.
The Rulings of the Trial Judge
[178] The trial judge gave two brief oral rulings on the alternate or known third party suspect issue. The first was based on the appellant’s testimony, the second after Khan had testified on a voir dire.
[179] In his first ruling, the trial judge recognized that the application involved a known third party or alternate suspect whom defence counsel wished to call as a witness. The trial judge underscored the burden on the defence to adduce evidence of a nexus between the third party and the alleged offence. In the absence of any such evidence to support the required nexus, the trial judge considered it necessary to hold a voir dire to hear the evidence of Raza Khan before finally ruling on the application.
[180] After receiving the testimony of Raza Khan on the voir dire, the trial judge concluded that there was no air of reality to the third party or alternate suspect defence. In particular, there was no evidence that Khan had ever ordered drugs in the appellant’s name. Although Khan admitted having ordered drugs online, among them cocaine and fentanyl, and having had them mailed or shipped to other houses, he could not recall having ordered a delivery to the appellant’s home. Although there was evidence that Raza Khan had a propensity to commit the offence with which the appellant was charged, the record revealed no nexus between Khan and the offence charged. There was no air of reality to the proposed defence. The application was dismissed.
The Arguments on Appeal
[181] The appellant accepts that to advance a third party or alternate suspect defence, the evidence relied upon in support must meet the air of reality standard. Appellate review of a decision on the issue applies a standard of correctness. The burden on an accused is evidentiary. What is required as an evidentiary threshold is any evidence on the basis of which a properly instructed jury, acting judicially, could acquit. If this burden is met, the trial judge must also be satisfied that the probative value of the evidence in support of the defence is not substantially outweighed by its prejudicial effect.
[182] The appellant also acknowledges that there must be a sufficient connection between the third party or alternate suspect and the alleged offence to furnish the essential air of reality. This may be supplied by evidence that the third party had the opportunity, motive, or propensity to commit the offence. The disposition of a third party to commit the offence is probative and admissible provided there is other evidence connecting the suspect to the offence. Just because a third party does not admit culpability does not mean that there is no air of reality to the defence. Provided the inferences available from the evidence are capable of raising a reasonable doubt about the defence, the defence should be left to the jury.
[183] Here, the appellant urges, there was an air of reality to the defence. The trial judge failed to consider the possibility that Raza Khan was lying on the voir dire. The judge also ignored the cumulative effect of several items of evidence. Raza Khan was the leaseholder of the appellant’s residence and collected the rent from her, sometimes at the residence. Raza Khan had lived at the residence with the appellant and may have received two keys. He was a convicted drug dealer who had ordered drugs online in the past and had trafficked in fentanyl. He had previously ordered drugs online in the names of others and only offered a tepid failure to recall when asked about ordering them delivered to the appellant’s home.
[184] The respondent says that evidence about a third party or alternate suspect is not prima facie admissible. Here, the proposed third party suspect was Raza Khan. But the only evidence advanced in support was his criminal record, drug trafficking practices, and a limited connection to the appellant’s home. This does not satisfy the air of reality standard.
[185] Evidence about an alternate suspect may only be admitted where there is a significant connection between the third party and the offence alleged. Absent this link, evidence about the third party is neither relevant nor material. To connect the alternate suspect to the crime, something more than evidence of bad character or of offence-specific propensity is required. Evidence of motive or opportunity may be sufficient, but speculative evidence will not do.
[186] In this case, the respondent concludes, the trial judge applied the proper test. He considered the evidence. He made a finding that was open to him on the evidence. Nothing connected Raza Khan to the package, its order, or its delivery. The trial judge’s ruling was correct in law and fully supported by the evidence.
The Governing Principles
[187] The principles governing introduction of evidence about a known alternate or third party suspect are not in dispute. The parties divide on the impact of their application in the circumstances of this case.
[188] It is open to an accused charged with an offence to adduce evidence that tends to show that another person committed the offence with which the accused is charged. The evidence offered in support may be direct, or circumstantial, or a combination of both: R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 167, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824. The evidence must be relevant and of sufficient probative value to warrant its reception. As a result, courts have been disinclined to admit evidence about alternate or third party suspects unless the suspect is sufficiently connected by other circumstances with the crime charged to give the proposed evidence some probative value: McMillan, at p. 757; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 46-47.
[189] Evidence of the disposition of a known alternate or third party suspect is admissible to establish commission of the offence charged by that person provided that person is connected to the offence by other evidence. Absent such a nexus, the disposition evidence would lack any probative value: McMillan, at p. 758; R. v. Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122, at para. 19.
[190] To put the third party or alternate suspect issue in play at a criminal trial, the defence must show that there is some basis upon which a reasonable jury properly instructed, could acquit on the basis of the defence. Absent a sufficient connection between the third party and the offence, the defence will lack the required air of reality and fail in limine: Grandinetti, at para. 48.
[191] The requirement to show some nexus or connection between the third party and the offence applies whether the proposed evidence is direct or circumstantial or a combination of both. However, where the defence proposes to call direct evidence from another who admits responsibility for the offence, that proposed evidence itself constitutes a sufficient nexus or connection: Murphy, at paras. 24-25.
[192] Among the items of evidence that an accused may rely upon in support of an alternate or third party suspect defence is evidence of that person’s disposition or propensity to commit offences of the nature charged. One method of establishing disposition is to adduce evidence of the third party’s criminal record disclosing convictions of cognate offences. A single conviction may suffice: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 141.
[193] A final point concerns the principles governing the admissibility of defence evidence in a criminal trial. The exclusion of relevant, material, and otherwise admissible defence evidence may only be justified on the ground that the potential prejudice to the trial process of admitting the evidence substantially outweighs its probative value: Murphy, at para. 17, citing, R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 611-12.
The Principles Applied
[194] In my respectful view, the trial judge erred in failing to permit the defence to call Raza Khan as an alternate or third party suspect. Thus, I would give effect to this ground of appeal.
[195] This case involves delivery of a package containing fentanyl from China to the appellant at her home in Ajax. The package was mailed, arrived in Canada in British Columbia where the fentanyl was removed and the package forwarded to the addressee.
[196] For the proposed evidence to be admitted in this case, it must be relevant and of sufficient probative value to warrant its reception. And there must be a sufficient connection or nexus between the third party and the offence charged. The nexus may be established by direct or circumstantial evidence or combination of both.
[197] Raza Khan testified on the voir dire. He did not admit that he had ever ordered drugs to the appellant’s address. He said he could not recall having done so, although he had ordered drugs online before and had them delivered to other addresses. Disbelief of his faulty memory explanation does not equate to an admission that he committed the offence.
[198] On the other hand, I am satisfied that there was sufficient circumstantial evidence to put the alternate or third party suspect issue in play.
[199] Raza Khan was an admitted and convicted trafficker. He acknowledged ordering drugs online from various sources. The drugs included fentanyl, the same controlled substance at issue here. He had ordered fentanyl online. He ordered that delivery of his online purchase be made to addresses other than his own to recipients other than himself. In other words, he had a disposition to do the very thing the appellant was alleged to have done here.
[200] Raza Khan was also connected to the place of delivery and the recipient. He was the lessee of the property. He had lived there for several months with the appellant. He collected the rent money from her. And this is not a case in which, as his previous dealings show, he needed to be at the address at a specific time to order the fentanyl online and have the appellant’s name appear as addressee and the package delivered to her residence.
[201] The cumulative effect of this evidence was sufficient to meet the evidentiary threshold to engage the alternate or third party suspect defence. The trial judge erred in ruling otherwise.
Disposition
[202] The combined effect of the errors I have identified leads me to conclude that the convictions entered at trial cannot stand. I would allow the appeal, set aside the convictions, and order a new trial on both counts of the indictment.
Released: November 2, 2021 “D.D.”
“David Watt J.A.”
“I agree. Doherty J.A.”
“I agree. K. van Rensburg J.A.”
“I agree, M.L. Benotto J.A.”
“I agree. I.V.B. Nordheimer J.A.”