Court of Appeal for Ontario

Date: 20221118 Docket: C64877

Before: van Rensburg, Roberts and Sossin JJ.A.

Between: His Majesty the King Respondent

And: Joseph Grant-Stuart Appellant

Counsel: Nicholas A. Xynnis, for the appellant Howard Piafsky, for the respondent

Heard: November 9, 2022 by video conference

On appeal from the conviction entered by Justice Barbara A. Conway of the Superior Court of Justice, sitting with a jury, on December 16, 2016, and from the sentence imposed on January 30, 2018.

Reasons for Decision

A. Introduction

[1] The appellant and his brother, Ephraim Grant-Stuart, were charged with importing cocaine and possessing it for the purpose of trafficking. After a trial by judge and jury, the appellant was found guilty on both charges. His co-accused was acquitted. The appellant was sentenced to nine years’ imprisonment, less credit for time served. He appealed his conviction. He also sought leave to appeal his sentence and tendered fresh evidence on the sentence appeal. At the conclusion of oral argument, we dismissed the conviction appeal, admitted the fresh evidence, granted leave to appeal sentence, and dismissed the sentence appeal, with reasons to follow. These are our reasons.

B. Facts

[2] The charges arose out of the seizure of 48 kilograms of cocaine, concealed in a container of foodstuffs, that was imported into Canada from Guyana. There had been four shipments by the appellant’s company, Canadian American Investment, between February and June 2012. It was agreed that there was no evidence, and it was not alleged, that there were any drugs in the first three shipments.

[3] The fourth shipment departed Guyana on May 21, 2012 and arrived in Saint John, New Brunswick on June 3, 2012. Two days later the Canadian Border Services Agency (the CBSA) inspected the contents of the fourth shipment and discovered the cocaine, which was hidden in hollowed-out pallets. The value of the cocaine was approximately $1 million.

[4] After the drugs were removed and handed over to the RCMP, the CBSA re-loaded the container and it was transported by rail to an RCMP secure facility. The RCMP placed a small amount of cocaine into the container and arrangements were made for a controlled delivery.

[5] The consignee of the shipment was the appellant, with an address on Finch Avenue West in North York, which was the co-accused’s home address. The address for delivery was a unit at another address on Finch Avenue West, which was a warehouse leased by the appellant. The appellant had retained a Canadian customs broker to clear all four shipments.

[6] Between June 15-18, 2012, the RCMP intercepted text messages and phone calls to and from the appellant and three individuals. In one of the conversations, an unidentified man told the appellant to change his phone number after a discussion of the fourth shipment.

[7] The fourth shipment was cleared through customs on June 18, 2012 and delivered that day to the warehouse address. The appellant and his co-accused were arrested the same day.

[8] At trial, the appellant and his co-accused denied knowledge of the cocaine. The appellant testified that a man named Baldeo Persaud, who had become his business partner in Guyana, at least in respect of the four shipments, secretly planted the drugs and was responsible for their importation. The appellant identified the unknown man on the intercepted call as Mr. Persaud.

C. The Conviction Appeal

[9] The appellant raised two grounds in his conviction appeal. First, he asserted that the trial judge erred in her answer to a jury question on the principle of reasonable doubt, by failing to declare a mistrial or by not instructing the jury to vacate the verdicts it had reached before submitting their question. Second, the appellant argued that the Crown’s closing submissions created trial unfairness by inviting the jury to speculate. In oral argument, the appellant abandoned his third ground of appeal that alleged that the guilty verdicts were unreasonable. We address the two issues on the conviction appeal in turn.

Issue One: Did the trial judge err in her response to a jury question?

[10] On the second day of deliberations, the jury sent out the following question: “Your Honour, we have reached a decision on the two counts for one of the defendants. However, we are at a stalemate for the other. Would you please clarify your instructions regarding guilt beyond a reasonable doubt. Thank you, the jury.” The jury did not send out a verdict.

[11] The trial judge, following the appropriate practice, consulted with counsel before responding to the jury’s question. Defence counsel requested that the trial judge re-read her instructions on reasonable doubt, the presumption of innocence, and the burden of proof, arguing that an explanation of all three concepts again would be helpful in ensuring the jury understood the principle of reasonable doubt. Crown counsel took the position that the trial judge should only re-read her instructions on reasonable doubt because the jury only requested clarification on that point. Ultimately, the trial judge re-read portions of her charge relating to reasonable doubt, the presumption of innocence, and the burden of proof. The jury returned to their deliberations.

[12] Two hours later, the jury gave court staff two envelopes, with one containing a verdict and the other containing a question. The trial judge told court staff to keep the verdict in the jury room and only looked at the question. The question was in fact a message that stated: “Your Honour, we have a decision on the two counts for one of the defendants. We are not unanimous on the other defendant for both counts. We have come to the conclusion that further deliberation will not help us to reach a verdict. Thank you, the jury.”

[13] After consulting with counsel, and with their agreement, the trial judge provided an exhortation to the jury that included terms proposed by counsel.

[14] The jury returned four and a half hours later with guilty verdicts on the two charges faced by the appellant and not-guilty verdicts for the co-accused.

[15] On appeal, the appellant did not take issue with the content of the trial judge’s response to the jury question in respect of reasonable doubt. Rather, his position was that, because the jury question was prefaced by the comment that the jury had arrived at a decision about one of the accused, the necessary inference was that they reached a verdict in respect of one of the accused without a correct understanding of the principle of reasonable doubt. Further, the appellant argued that the jury’s later communications with the judge – that they had a decision on the two counts for one of the defendants and that they had reached a stalemate in their deliberations – supports this inference. The appellant submitted that the “safest” course of action for the trial judge would have been to declare a mistrial. At a minimum, however, after instructing the jury about reasonable doubt, she should have directed the jury to vacate the verdicts it had reached.

[16] We disagree. The trial judge’s response to the jury question was reasonable and reveals no reversible error. The response – including the failure of the trial judge to declare a mistrial or to include in her instructions a caution to set aside any verdicts they had reached – is entitled to deference: it was “uncontaminated by errors of law or misapprehensions of fact and [fell] within a range of reasonable alternatives”: R. v. Mohamad, 2018 ONCA 966, 369 C.C.C. (3d) 211, at para. 279, leave to appeal refused, [2019] S.C.C.A. No. 162.

[17] First, we note that the trial judge’s instruction was the product of full discussion with trial counsel. She specifically told counsel that she thought she should re-read the portion of her charge on reasonable doubt before any verdicts came in. She expanded the response based on the submissions of defence counsel. All counsel agreed with the manner in which the trial judge proceeded. No one requested a mistrial, and no one sought the specific instruction, as advanced on appeal, or any other type of instruction in respect of the jury having arrived at a decision for one of the accused.

[18] Second, we do not agree that a necessary inference from the jury question was that the jury ultimately arrived at a verdict with respect to one of the accused without a proper understanding of the principle of reasonable doubt. The absence of any request by experienced counsel for a mistrial or the type of instruction that is raised on appeal suggests that there was no such inference: see R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 51.

[19] In our view, the manner in which the trial judge proceeded left no reasonable possibility that the jury was misled or misapprehended the law. After consulting counsel, repeating portions of her instructions, and not having received any verdict, the trial judge sent the jury back to continue their deliberations. In the absence of evidence to the contrary, juries are presumed to follow a trial judge’s instructions: R. v. Richards (2005), 197 O.A.C. 37 (C.A.), at para. 15. There was nothing to indicate that the jury failed to do so. This court has recognized that the declaration of a mistrial is a “drastic remedy and only appropriate as a measure of last resort in the clearest of cases where there is a real danger that trial fairness has been compromised”: R. v. Howley, 2021 ONCA 386, at para. 46. Given the trial judge’s thoughtful response to the jury question, there was no such danger here.

Issue Two: Did the Crown invite the jury to convict based on speculation, and if so, was the trial rendered unfair?

[20] It is wrong for Crown counsel to invite the jury to engage in speculation. If this is made out, as with other allegations of improprieties in the Crown’s submissions or other conduct at trial, the relevant question is whether the Crown’s misconduct rendered the trial unfair: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 106, leave to appeal refused, [2016] S.C.C.A. No. 513.

[21] The appellant argued that the Crown’s closing submissions improperly invited the jury to convict him based on speculation. The appellant cited four examples, described as follows: (a) the Crown asked the jury to speculate that he did not receive an inheritance to finance his business, and if he had received an inheritance, that he would have paid down his delinquent mortgage instead; (b) the Crown invited the jury to convict the appellant because the income claimed in his income tax returns for the previous two years was only $16,000 and insufficient to purchase inventory wholesale despite the jury having been told that money from an inheritance was not taxable; (c) the Crown told the jury that “no one” would hide a valuable drug quantity in a shipment without telling the possessor – and used inappropriate language like “unfathomable” in describing the appellant’s account; (d) the Crown invited the jury to conclude that the warehouse lacked the “usual” look of a legitimate business, without evidence of what a “usual” business looked like.

[22] Having reviewed the four excerpts, we see no merit in this ground of appeal. The first example involved the Crown quite properly inviting the jury to “apply their common sense” to reject the appellant’s evidence that he had financed his business through an inheritance, because the evidence was that his mortgage was in default and he was thus at risk of losing his home. In the second example, the Crown simply pointed out the inconsistency between the appellant’s claimed income and his ability to purchase inventory, challenging his evidence that he had a legitimate food importing business. The third example involved the Crown inviting the jury to make a permissible inference of knowledge based on the value of the seized drug: see e.g., R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 157, leave to appeal refused, [2015] S.C.C.A. No. 478. Finally, in the fourth example, the Crown, referring to various photos and the appellant’s own evidence, pointed out the absence of records and equipment consistent with a legitimate business in the warehouse where the container was delivered.

[23] In each of these four examples, the Crown provided the jury with common sense reasons, grounded in evidence, for disbelieving aspects of the appellant’s testimony. The impugned submissions, to which no objection was raised at trial, did not invite speculation; rather they were an appeal to the jury’s common sense, were connected to the evidence or lack of evidence, and were made to a properly instructed jury.

[24] The Crown’s impugned closing submissions must be reviewed in the context of the defence closing submissions and the trial judge’s jury charge that reviewed the parties’ positions. The defence closing submissions provided a counterbalance and urged the jury to take a different common-sense view of the evidence in favour of the appellant. Experienced defence counsel requested that the trial judge provide the jury with corrections to certain mischaracterizations of the evidence alleged by the Crown (again, not addressing the four examples raised on appeal), and the trial judge provided a corrective instruction on the same day. The trial judge also amended the draft jury charge following defence counsel’s submission that portions of the Crown’s position needed to be presented more evenly.

[25] The Crown's submissions did not create an unfair trial or the appearance of unfairness.

D. The sentence appeal

[26] On his sentence appeal the appellant submitted that his sentence of nine years’ imprisonment, less time served, was unfit because the trial judge failed to give sufficient weight to mitigating factors, including the appellant’s age, health condition, and the fact that he was a first-time offender.

[27] The appellant argued that the trial judge ignored the issue of the appellant’s health condition in sentencing when she stated, “I see no reason that he cannot receive medical treatment within the penitentiary institution”. The appellant also asserted that the trial judge unduly emphasized deterrence to the exclusion of all mitigating factors when she sentenced the appellant to nine years’ imprisonment. Instead, the trial judge should have considered a sentence of less than two years. The appellant’s factum had proposed a conditional sentence with onerous terms, a position that was abandoned during oral argument based on the Supreme Court’s recent decision in R. v. Sharma, 2022 SCC 39.

[28] The appellant submitted fresh evidence in the form of a letter from his family doctor dated November 3, 2022. The letter indicates that the appellant is being followed by multiple specialists and that he suffers from rheumatoid arthritis, gout, hypertension, hyperlipidemia, coronary artery disease, and chronic anemia. While we admitted the fresh evidence on consent of the Crown, we note that the evidence would not have impacted the appellant’s sentence. The appellant testified about his medical condition at the sentencing hearing and, in fact, the sentencing had been adjourned from time to time for 13 months to permit his health condition to stabilize and to update his situation. He had double bypass surgery in the interim. The evidence at the time of sentencing was that the appellant had serious health concerns that required medical intervention, and the fresh evidence is to the same effect.

[29] The trial judge did not err in law or principle in the sentence she imposed for the appellant. She properly identified that general and specific deterrence are the key principles for sentencing in drug importing cases. With reference to the applicable jurisprudence, she identified the range for importing 48 kilograms of cocaine at between nine to twelve years. In imposing a sentence at the low end of that range, the trial judge considered all of the mitigating circumstances, including the appellant’s health issues. She specifically considered the defence request for a sentence of two years less a day, which she described as “wholly inadequate”.

[30] An appellate court will not interfere with a sentence unless the sentencing judge has erred in principle, failed to consider a relevant factor, or imposed a sentence that was demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. No such error has been demonstrated in this case.

E. Disposition

[31] For these reasons the conviction and sentence appeals were dismissed.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“Sossin J.A.”