Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211116 DOCKET: C68281

Doherty, Pardu and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Andre Karmar Morgan Appellant

Counsel: Matthew R. Gourlay and Sarah Strban, for the appellant Jeremy Streeter, for the respondent

Heard: November 8, 2021

On appeal from the conviction entered on February 5, 2020, and the sentence imposed on May 19, 2020 by Justice Bernd E. Zabel of the Ontario Court of Justice.

Doherty J.A.:

Endorsement

[1] The appellant appeals his conviction on a charge of possession of cocaine for the purposes of trafficking. He also seeks leave to appeal and, if leave is granted, appeals from the sentence of 53 months imposed by the trial judge after the trial judge had given the appellant credit for 7 months pretrial custody.

[2] The Crown’s case at trial was circumstantial but formidable. The defence called a witness, Christopher Small, who testified that the drugs in issue belonged to him and not to the appellant. The Crown maintained both Small and the appellant were in possession of the cocaine.

[3] The appellant did not testify.

The Conviction Appeal

[4] Counsel advances a single ground of appeal in oral argument. He contends the trial judge erred in permitting the Crown to cross-examine Mr. Small on his knowledge of his rights under s. 13 of the Charter and s. 5 of the Canada Evidence Act. Those provisions provide a witness with limited immunity from the use, in subsequent proceedings, of any incriminating evidence given by that witness.

[5] Counsel for the appellant further submits the trial judge improperly used the cross-examination to impeach Mr. Small’s credibility.

[6] The Crown cannot use the fact that a witness has “invoked” the protection of s. 13 of the Charter or s. 5 of the Canada Evidence Act to discredit the testimony of that witness. Nor can a witness be cross-examined about his or her understanding of the rights and protections afforded by s. 13 or s. 5. Finally, a trial judge cannot discredit a witness’s evidence because the witness was aware of the protections afforded to the witness by s. 13 and s. 5 when the witness testified: see R. v. Jabarianha, 2001 SCC 75; R. v. Dudhi, 2019 ONCA 665; R. v. Swick (1997), 35 O.R. (3d) 472 (C.A.).

[7] At the outset of his examination-in-chief, Mr. Small invoked the protection of s. 13 of the Charter and s. 5 of the Canada Evidence Act. At the very end of his examination-in-chief, the following exchange occurred with counsel for the appellant:

Q. Okay. Alright. Why are you here today testifying and telling us that those were your drugs in the room and that the others didn’t know about them?

A. Because I think – I don’t think nana Mainoo or Andre [the appellant] or Romeo should go to jail for what’s mine. And I feel that I – I don’t want to – not even feel, I know that I am the reason why they came to the house, right? I’m the reason why they came to the house? I’m the reason why they were there. And I didn’t want – I don’t want them to go to jail for something that’s not their own, right?

[8] In cross-examination the Crown asked Mr. Small about his stated reason in examination-in-chief for coming forward and taking responsibility for the possession of the cocaine:

Q. Right. And you said – you told us that today you’re here because you don’t – and I want to use your words – ‘I don’t want them to go to jail’, right? For something that’s not theirs? Right.

A. Yes.

[9] The Crown followed these questions by asking Mr. Small whether he had spoken to the police about taking responsibility for the cocaine. Mr. Small said he had not. Crown counsel next asked whether Mr. Small had spoken to his lawyer about not wanting his friends to go to jail for something he had done. Crown counsel made it clear that he was not interested in any details of any conversation between Mr. Small and his lawyer. Mr. Small replied:

A. Yes. I – I said to – I said to Andre [the appellant] to tell his lawyer that I would testify and I would talk to my lawyer to see if I would be protected if I testified to say – to tell the truth … [Emphasis added.]

[10] The Crown followed with questions about Mr. Small’s belief that he would be protected from prosecution:

Q. So you know that today you’re protected in terms of being prosecuted for the drugs if you give this evidence? That’s a decision you made before you got here today, correct?

A. Yes.

Q. Okay. If I were to suggest to you that had you not been guaranteed that protection you wouldn’t be here today, is that fair?

A. If I wasn’t guaranteed, I wouldn’t come and tell the court that the drugs were mine.

Q. Right. So you being here today, while it’s not necessarily just wanted to see your friends not go to jail.

A. Yes.

Q. You don’t want to see yourself go to jail for this?

A. Exactly. [Emphasis added.]

[11] At a subsequent point in his cross-examination, Mr. Small reiterated the claim that he was testifying because it was “the right thing”. The following exchange then occurred with Crown counsel:

Q. Right. But you were only going to do the right thing if the right thing didn’t affect you?

A. Kind of, yes.

[12] The defence chose to lead evidence during Mr. Small’s examination-in-chief as to his motive for testifying and taking responsibility for the cocaine. The evidence led by the defence presented Mr. Small in a positive light and was no doubt intended to enhance his credibility as a witness.

[13] The questions asked by Crown counsel flowed directly from the evidence given by Mr. Small in-chief as to his motive for testifying. Those questions challenged the veracity of Mr. Small’s explanation for coming forward as a witness. His answers to Crown counsel’s questions put his motives in a significantly different light. On Mr. Small’s answers in cross-examination, he was only prepared to do “the right thing” if doing so would have no negative impact on him. Based on the answers given in cross-examination, a trier of fact could fairly conclude that Mr. Small had been far less than frank and honest in his examination-in-chief when explaining why he had come forward to take responsibility for possession of the cocaine. Mr. Small’s lack of candor when explaining his motive for testifying was relevant to the assessment of his credibility.

[14] The trial judge did not find Mr. Small to be a credible or reliable witness. In the course of his assessment of Mr. Small’s evidence, the trial judge referred specifically to Mr. Small’s failed attempt during his examination-in-chief to present himself:

As displaying a noble purpose by testifying so that innocent persons wouldn’t be wrongfully convicted.

[15] The trial judge referred to some of the passages from the cross-examination of Mr. Small quoted above. Those passages supported the inference that Mr. Small’s reason for testifying was far less “noble” than he had suggested in his examination-in-chief. It was open to the trial judge to treat Mr. Small’s answers in cross-examination as tantamount to an admission that he had been less than forthcoming in his examination-in-chief. The trial judge’s use of Mr. Small’s answers went no further than that.

[16] The questions posed by the Crown on cross-examination were not improper, given the evidence advanced in-chief. The trial judge did not misuse the answers to those questions, but rather used those answers in considering whether Mr. Small’s evidence in-chief was misleading and therefore adversely affected his credibility.

[17] We would not give effect to this ground of appeal.

[18] The appellant advanced other grounds of appeal in his factum, but counsel did not pursue them in oral argument. We have considered those grounds of appeal. None warrant the intervention of this court. There was ample reason to reject Mr. Small’s evidence. The trial judge identified some, but by no means all, of the problems associated with his testimony. Setting aside Mr. Small’s testimony as incredible, the case against the appellant was overwhelming.

[19] The conviction appeal is dismissed.

The Sentence Appeal

[20] Given the large quantity of cocaine involved (half a kilogram), the effective sentence of 5 years imposed by the trial judge cannot be described as excessive: R. v. Bryan, 2011 ONCA 273.

[21] The appellant is subject to deportation upon release from custody. Counsel submits this justifies a reduction of the sentence to 3½ years. We disagree. The court is not asked to mitigate a sentence to avoid a significant collateral consequence: R. v. Pham, 2013 SCC 15. Instead, the court is asked to treat the possible immigration consequences of the appellant’s conviction as a mitigating factor on sentence. Counsel does not suggest that a sentence of less than six months, which would avoid the immigration consequences, is appropriate here, but instead argues that what would otherwise be an appropriate sentence should be reduced in light of the appellant’s possible deportation when released from custody.

[22] No one knows what immigration consequences will flow when the appellant is released. More to the point, those consequences are not dictated by the Criminal Code or the applicable principles of sentencing, but are instead reflective of principles and policies applicable to immigration. The trial judge did not err in failing to reduce the period of incarceration imposed to take into account the risk the appellant would be deported when released.

[23] Counsel also argued the trial judge failed to consider the impact of COVID-19 when imposing sentence. The appellant has been on bail and has served very little of his sentence to this point in time. It is unclear what the impact of COVID-19 will be on those in custody on a going-forward basis.

[24] In any event, the trial judge did recognize the reality of COVID-19 as it existed at the time of sentencing. He took that reality into account in imposing an effective sentence of 5 years.

[25] Leave to appeal sentence is granted but the appeal is dismissed.

Released: “November 16, 2021 DD”

“Doherty J.A.”

“I agree G. Pardu J.A.”

“I agree Thorburn J.A.”