COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Giscombe, 2023 ONCA 637

DATE: 20230926

DOCKET: C69004

Doherty, Rouleau and Zarnett JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Shaquan Giscombe

Appellant

Marianne Salih, for the appellant

David Quayat, for the respondent

Heard: September 22, 2023

On appeal from the conviction entered by Justice Deena F. Baltman of the Superior Court of Justice, sitting with a jury, on October 19, 2020.

REASONS FOR DECISION

Introduction

[1] The appellant was convicted, after trial by judge and jury, of importing heroin. He was sentenced to 10.5 years imprisonment less 15 days credit for pre-sentence custody. He appeals his conviction, raising one ground. He submits that the trial judge erred in her instruction to the jury about circumstantial evidence by failing to tell them that exculpatory inferences − unlike inculpatory ones − need not arise from proven facts.

[2] After hearing oral argument, we dismissed the appeal with reasons to follow. These are those reasons.

Background

[3] On April 1, 2017, the appellant was arrested at Toronto Pearson International Airport upon his return from a trip to South Africa. The reason for the arrest was the discovery of approximately 1.8 kilograms of heroin, estimated to have a maximum value of about $755,600, hidden within items in his suitcase − commercially sealed Dove soap packages and the cover of a children’s book − and in a false bottom of the suitcase itself. Prior to the discovery of the heroin, the appellant had acknowledged to Border Service Officers that the suitcase was his, that he had packed it himself, and that he was aware of its contents.

[4] The appellant denied having knowledge that there was heroin hidden in his suitcase. He testified at trial that he was an inexperienced traveller and that while in South Africa, he met a man named “Tony”. He ended up seeing Tony frequently as both a driver and tour guide. At Tony’s suggestion, the appellant bought a suitcase at a store in Johannesburg. At the same store, the appellant bought a children’s book for his niece which he left in the new suitcase. During the last 30 hours of his trip, the appellant partied significantly leaving his suitcase in the back of Tony’s car. The appellant did not know who had access to the car during that time. The appellant also testified that as he disembarked from the aircraft when it landed in Toronto, he received a phone call from someone who said: “Hey, what’s up? Back in Toronto. It’s Tony’s boy.” He believed he asked the caller why they were contacting him at which point the call ended.

[5] The Crown’s position, as summarized to the jury, was that the appellant knew he was importing drugs based on, among other things, their presence in his suitcase and the implausibility of the appellant being entrusted to carry such valuable items without his knowledge. The Crown urged rejection of the appellant’s evidence.

[6] The appellant’s position, as summarized to the jury, was that he had no knowledge of the heroin in his suitcase, and that Tony had set him up.

The Circumstantial Evidence Instructions

[7] The only issue for the jury was whether the Crown had proven beyond a reasonable doubt that the appellant had knowledge of the heroin in his suitcase. This turned almost entirely on circumstantial evidence.

[8] The trial judge gave specific instructions relating to circumstantial evidence. She explained to the jury the difference between direct and circumstantial evidence. She also explained that in drawing inferences the jury was to be guided by common sense and experience, and that inferences must not be the product of conjecture or speculation. She told the jury that in considering “what inferences, if any, you are prepared to draw, be sure that you do not consider evidence in isolation. Consider all of the evidence, or the lack of evidence, in deciding what inferences you are prepared to draw and rely upon”. To this she added:

I have one very important and final word of caution about this. Here the Crown's case is mostly (if not entirely) based on circumstantial evidence. Sometimes circumstantial evidence is capable of supporting more than one reasonable inference. So the rule is this: if you are relying on circumstantial evidence to establish guilt, you must be satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the whole of the evidence is that Mr. Giscombe is guilty.

[9] In the pre-charge conference, the appellant had proposed that an instruction be added cautioning that “[i]n assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” and that “[r]equiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is reasonable doubt is assessed by considering all of the evidence.” The Crown objected to this language being included, and the trial judge did not do so.

Analysis

[10] The appellant argues that the instruction he requested at the pre-charge conference is required by R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 and that the failure to include it caused irreparable prejudice. He submits that if the jury had been properly instructed (by the inclusion of the requested language) the verdict may have been different.

[11] We do not agree.

[12] Appellate review of a jury charge follows a functional approach. An accused is entitled to a jury that is properly, not perfectly, instructed. The overriding question is whether the jury was adequately and sufficiently instructed to decide the case according to the law and the evidence. Any alleged errors will be considered within the context of the entire charge and the trial as a whole: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-37; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.

[13] The jury was told that the central issue for them to decide was whether the appellant knew about the heroin in his suitcase. They were told that the Crown had sought to prove his knowledge through circumstantial evidence, that that kind of evidence can give rise to more than one inference, that they should consider both the evidence and lack of evidence in deciding what inferences to draw, that inferences should not be based on speculation or conjecture, and that they could only convict if they were satisfied beyond a reasonable doubt that guilt was the only reasonable inference that could be drawn from the whole of the evidence.

[14] Given the issues and competing positions in this case, the instruction was adequate and sufficient. Villaroman is clear that there is no particular form of mandatory jury instruction regarding circumstantial evidence: paras. 22, 24, 30-31. The instruction conveyed the substance of Villaroman’s important messages.

[15] As the appellant points out, Villaroman states that inferences consistent with innocence do not have to arise from “proven facts”. Importantly, it also explains why: this would put an onus on the accused to prove facts and “is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence”: at para. 35. Given that no precise form of jury instruction is mandatory, the issue is whether the substance of this point was miscommunicated in a way that would have misled the jury. In our view it was not, especially when the charge is considered as a whole.

[16] The jury was not told that it required facts proven by the appellant to draw or consider an inference other than guilt. The jury was told at the outset of the charge that the burden of proof was on the Crown and that the appellant “does not have to present evidence or prove anything in the case…”.

[17] Nor was the jury told that they should consider anything other than all of the evidence, or that they could not consider gaps in the evidence, in deciding whether a reasonable doubt was raised. The trial judge, in explaining reasonable doubt, told the jury that a reasonable doubt could arise “from the evidence, or lack of evidence”. This dovetailed with the instruction on circumstantial evidence, in which the jury was told to use common sense and experience and to take into account the evidence and lack of evidence in deciding what, if any inference to draw. And they were told that whether they could convict was dependent on being satisfied beyond a reasonable doubt that guilt was the only reasonable inference on the basis of all the evidence.

[18] Moreover, we are not persuaded the appellant was prejudiced by the instruction given in this case. He has not identified a non-speculative exculpatory inference that the jury would not have considered because of the instruction that they were given but which they might have considered if they had been instructed as the appellant proposed.

Conclusion

[19] The appeal is therefore dismissed.

“Doherty J.A.”

“Paul Rouleau J.A.”

“B. Zarnett J.A.”