Court of Appeal for Ontario
Date: 2025-09-15 Docket: COA-24-CR-0262
Judges: Tulloch C.J.O., Huscroft and Paciocco JJ.A.
Between
His Majesty the King Respondent
and
Carmen Hernandez Appellant
Counsel
Michael W. Lacy and Bryan Badali, for the appellant
Sarah Egan, for the respondent
Heard: September 5, 2025
On appeal from the convictions entered by Justice Peter Bawden of the Superior Court of Justice, sitting with a jury, on February 5, 2024, and from the sentence imposed on May 14, 2024.
Reasons for Decision
Overview
[1] The appellant was convicted of possession for the purpose of trafficking (methamphetamine) and possession of property obtained by crime over $5,000 following trial by judge and jury and sentenced to a term of five and one-half years' imprisonment. She appeals her conviction and seeks leave to appeal sentence.
[2] At sentencing, the trial judge made the following factual findings:
May 2 – While parked in a plaza parking lot, the appellant accepted a gift bag containing methamphetamine from Bau Diu, who was under surveillance based on information he worked at a methamphetamine lab in Toronto. She drove to her residence after accepting the gift bag.
May 5 – Diu put a gift bag containing methamphetamine into the trunk of the appellant's car while she sat parked in the same plaza. The appellant handed Diu a bag containing a large amount of cash before returning to her home with the methamphetamine.
May 11 – The police executed a search warrant at the appellant's home and found 11 Tupperware containers containing approximately 10kg of crystal methamphetamine valued at approximately $245,000. They also found a safe which held bundles of $20 and $50 bills wrapped in elastic bands totalling $17,400.
[3] The contraband was discovered in the appellant's room. She testified that she believed the substance in the containers was silica from Diu's employer. She testified that she was storing it at Diu's request, along with the safe, because he was running out of space at his residence to store material from the business. It is evident that the jury rejected her testimony. At sentencing, the trial judge found that this was a sophisticated and lucrative drug trafficking operation in which the appellant played a critical and essential role "in the distribution network by meeting with the drug producer, receiving the product, safeguarding it in her own home, and returning the cash profits from sales to the producers". He found no evidence that she was pressured or manipulated to commit the offence.
[4] The appellant raises several arguments on appeal against conviction. She submits that the trial judge erred:
by instructing the jury that they could not consider the appellant's character in assessing whether the Crown had proved its case beyond a reasonable doubt;
by instructing the jury that they could consider the existence of smaller quantities of a different drug in assessing the appellant's knowledge of the methamphetamine;
by failing to provide a corrective instruction after the Crown's closing address; and
in his instruction to the jury about the mistake of fact defence.
None of these arguments succeed. The appeal is dismissed for the reasons that follow.
The Appellant's Character Was Not Put in Issue
[5] In closing submissions, trial counsel argued that the appellant was not the "type of person" who would commit the charged offences. Crown counsel responded in her closing submissions by telling the jury that whether someone is the type of person to commit drug offences is stereotypical reasoning and should play no part in their analysis. Trial counsel objected to the Crown's comments and asked for an instruction to the jury about the relevance of character.
[6] The trial judge found that the appellant, who had done no more in her testimony than recount her personal history, had not put her character in issue. He said he would not have allowed the Crown to cross-examine the appellant on her character and commented that the Crown had been "sandbagged" by the issue of character evidence in the defence's closing, without a foundation having been presented in evidence. This was prejudicial to the Crown, since, not having any reason to do so, it did not attempt to cross-examine the appellant about her character or lead evidence to the contrary. The trial judge instructed the jury that trial counsel's reference in her closing submissions to the appellant's good character was not supported by evidence and should not play any part in their deliberations.
[7] Trial counsel objected to the trial judge's instruction, asserting that it denigrated the defence and undermined the value of the evidence. The appellant repeats these arguments on appeal.
[8] We do not accept these arguments. The trial judge was entitled to find that the appellant never presented evidence that explicitly or implicitly relied on good character. She did no more than testify to her education, work history, and family – all matters of background normally canvassed in introducing a witness: R. v. McNamara et al. (No. 1), 56 C.C.C. (2d) 193 (Ont. C.A.), at p. 346, aff'd, [1985] 1 S.C.R. 662. The trial judge's decision that character was not put in issue is supported by the record and is entitled to deference in this court. The trial judge's reference to the possibility of the Crown leading bad character evidence does not cause prejudice in this case, as the appellant confirmed that no such allusion was made at any other stage of the proceedings. There is no merit to the assertion that the trial judge's instruction denigrated trial counsel – neither the tone nor the substance of the instruction was derogatory, and the judge did not single out the defence for criticism, having corrected the Crown as well.
The Trial Judge Did Not Err by Instructing the Jury That They Could Consider the Existence of the Dime Baggies in Assessing the Appellant's Knowledge of the Methamphetamine
[9] Trial counsel requested an instruction directing jurors not to convict the appellant of the charge of possessing methamphetamine for the purpose of trafficking based on the discovery of three small dime baggies containing ketamine, which were found in the safe. In her submissions she conceded that the discovery of dime baggies of ketamine in the safe was circumstantial evidence available to consider in determining whether the appellant had knowledge that the methamphetamine was an illicit drug. The trial judge gave that instruction. He said the jury could take into account the existence of the baggies as relevant to whether the appellant knew of the methamphetamine but also stated that the appellant was not facing any charge concerning ketamine and reiterated that their deliberations should be limited to the appellant's knowledge of the substance in the Tupperware containers.
[10] The appellant now submits that the trial judge erred in giving the requested instruction. We do not agree. The instruction was clear and gave rise to no reviewable error. This ground of appeal must be rejected.
The Trial Judge Did Not Err by Failing to Provide a Corrective Instruction After the Crown's Closing Address
[11] The appellant argues that the Crown violated the rule in Browne v Dunn (1893), 6 R. 67 (H.L.) by making submissions in her closing address that were not put to the appellant – in particular, that her narrative about a romantic relationship with Diu was false. In addition, the appellant argues that the Crown invited the jury to speculate by making submissions about the frequency of drug deals in parking lots. The appellant argues that the trial judge erred by not issuing a corrective instruction.
[12] There was never any doubt that the Crown did not accept the appellant's testimony that she had a romantic relationship with Diu. The Crown specifically noted the brevity of the appellant's May 5 interaction with Diu, when the two exchanged methamphetamine and a large amount of cash while the appellant sat parked in her car. The Crown noted the lack of personal interaction – the absence of hugs or kisses – and stated, "he's your boyfriend you say?" More specific confrontation of the appellant was not necessary in the circumstances: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 82, leave to appeal refused, [2016] S.C.C.A. No. 203. The trial judge's conclusion that no corrective instruction was necessary is entitled to deference: Quansah, at para. 90.
[13] The Crown's suggestion in closing that drug deals may happen in plain sight in a parking lot was not problematic. This was a common sense suggestion offered in response to the appellant's attempt to suggest that since the transaction occurred in a public parking lot, this was evidence that the appellant did not believe she was engaged in a drug transaction.
The Trial Judge Made No Error About the Mistake of Fact Defence
[14] We see no error in the trial judge's instructions in this regard. The reasonableness of the appellant's belief that she possessed silica had to be taken into account in determining whether her belief was honestly held. Indeed, the appellant argued that the claimed mistaken belief was credible because the mistake was reasonable. The propriety of the instructions is reinforced by the absence of any objection to the charge in this regard. This ground must be rejected.
Sentence
[15] The appellant seeks leave to appeal sentence. She argues that there was no basis for the trial judge to conclude beyond a reasonable doubt that the appellant served as anything more than a stash house for the drug trafficking ring.
[16] There is no merit in this argument. The trial judge explained why her role was critical and essential, based on the evidence. There was ample evidence of the extent of the appellant's involvement in the trafficking scheme, not least possession of over 10 kg of methamphetamine, weigh scales, and over $17,000 cash. Finally, the sentence imposed was plainly at the low end of the range: R. v. Mercier, 2023 ONCA 98, 166 O.R. (3d) 171, at para. 23. It reflected the appellant's youth and rehabilitative potential. There is no basis to conclude that it is too high.
Disposition
[17] Accordingly, the appeal is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.
"M. Tulloch C.J.O."
"Grant Huscroft J.A."
"David M. Paciocco J.A."