SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-783
DATE: 2013-10-01

RE: R. v. Tammy St. Denis

BEFORE: Heeney RSJ.

COUNSEL:
J. Bielefeld, Counsel, for the Crown (Respondent)

E. Seaman, Counsel, for the Accused (Appellant)

HEARD: August 12, 2013 at London

ENDORSEMENT

[1] This is an appeal of the conviction entered against the Appellant by Justice G. Pockele on July 25, 2012 of possession of a Schedule I substance, namely oxycodone, contrary to s. 4(1) of the Controlled Drugs and Substances Act. There is no appeal as to the sentence, which was 60 days incarceration followed by two years’ probation.

[2] The sole ground of appeal is that the verdict is unreasonable and not supported by the evidence.

[3] This was a circumstantial evidence case. Briefly stated, the Appellant was being held in holding cells at the London courthouse following her sentencing on another matter. While in the cell, she spent most of her time at the rear of the cell, where the toilet is located. She was seated on the toilet for more than two minutes, at which point she waved to other inmates, two of whom stood up and positioned themselves between the Appellant and the surveillance camera. The court officers immediately entered the cell, and found the Appellant over the toilet with her skirt and underwear down. A broken green condom was in the toilet, no bodily waste was in the toilet, and a cylindrical cellophane package containing oxycodone pills was in plain view by her foot.

[4] It is conceded by Mr. Seaman for the Appellant that the circumstantial evidence relied upon by the trial judge in convicting the Appellant is accurately summarized at para. 36 of the Crown’s factum. That evidence is as follows:

a) Before the Appellant entered the cell, the other inmates were sitting on the benches and had been so for most of the day;

b) When the Appellant entered the cell, she walked almost immediately to the toilet area and spent most of her time there;

c) One of the inmates asked Officer Duncan to close the door between the cell and the hallway, which prevented direct viewing of the cell. This was an unusual request;

d) The Appellant then sat on the toilet, and was the only inmate to do so in the relevant time-frame;

e) The Appellant behaved in an odd manner while she was on the toilet: swinging her arm, moving back and forth and up and down;

f) Still while sitting on the toilet, the Appellant motioned to other inmates – two of whom instantly got up from their seats and positioned themselves between the Appellant and the surveillance camera;

g) Court officers immediately entered the cell: the Appellant was over the toilet with her skirt and underwear down, a broken green condom was in the toilet – no bodily waste – and a 1” x 3” cylindrical cellophane package containing oxycodone pills was in plain view by her foot.

[5] The standard of review in an appeal of this nature is found in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at para. 25. The question to be asked is this:

[W]hether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

[6] Where, as here, the Crown’s case depends primarily on circumstantial evidence, Doherty J.A. provides the following guidance in R. v. Mars (2006), 2006 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.) at para. 4:

When assessing the reasonableness of a verdict, the appellate court must have regard to the burden of proof applicable in a criminal case. Where, as here, the Crown’s case depends on inferences drawn from primary facts, the question becomes: could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence?

[7] Doherty J.A. made it clear that, in considering the “totality of the evidence”, regard must be had to potentially exculpatory evidence as well as to evidence that supports the Crown’s case.

[8] Four points were canvassed in argument by Mr. Seaman. The first submission was that the trial judge failed to consider the exculpatory evidence that supported the alternative theory of the defence that these drugs had been brought in earlier by someone else and dropped on the floor. He points to evidence that the cell had not been searched since early in the day, that many female inmates came and went during the course of the day, and that the Appellant did not have exclusive access to the area where the drugs were found.

[9] On reviewing the reasons of the trial judge, however, each and every one of these points of evidence were considered by him. However, he found the alternative hypothesis to be illogical and unreasonable. For the hypothesis to be true, the drugs, in a plastic tube wrapped in plastic, would had to have sat on the floor of the cell, unnoticed and untouched by the Appellant and all of the other inmates, until it was discovered by the court staff. The trial judge rejected that hypothesis.

[10] As to the other inmates, he made the common sense observation that they had absolutely nothing to do in the cell but sit and watch. They were, in his words, in a state of “sensory deprivation”. It was inconceivable that this multi-coloured package of drugs would have sat there for any meaningful period of time without one of them noticing it and opening it to see what was inside.

[11] The Appellant argues that there is no evidence to support these findings of fact. I disagree. The surveillance video was filed in evidence. It shows these female inmates sitting in the cell, doing absolutely nothing but sitting and staring straight ahead, for extended periods of time. Indeed, it shows two or three inmates sitting on a bench at the rear of the cell, facing directly toward the toilet area where the drugs were found. The trial judge was quite entitled to conclude that they could not have failed to notice the package of drugs, if it were sitting on the floor for some period of time, having been dropped there by someone earlier in the day.

[12] The trial judge also properly rejected the suggestion that the Appellant, herself, would not have noticed the package of drugs, which was found on the floor near her foot. During both the act of pulling down her underwear to seat herself on the toilet, as well as during the period of time that she sat on the toilet, the package would have been immediately in front of her, in her plain view.

[13] In any event, the Appellant’s attack on this one item of evidence is misplaced. The ultimate question is not whether this single piece of evidence points to no other rational conclusion than guilt, but rather whether the evidence, considered in its totality, points to no other rational conclusion than guilt. It is quite true that the Appellant did not have exclusive opportunity to possess the drugs that were found on the floor. But the drugs were found in close proximity to her foot, where she could not have failed to notice them. That fact must be considered in the context of the other relevant pieces of circumstantial evidence, such as the broken condom in the toilet – the same toilet on which the Appellant was seated for several minutes with her underwear removed – the absence of bodily waste in the toilet, and the movement of the inmates to block the view of the surveillance camera, in response to an apparent signal from the Appellant. On the totality of the evidence, a properly instructed jury would be quite entitled to conclude that the only rational inference was that the Appellant had brought the drugs into the cell secreted in a body cavity, protected within a condom, and that she pulled down her underwear and seated herself on the toilet not for the purpose of eliminating bodily waste, but for the purpose of removing the drugs. When Officer Duncan unexpectedly entered the cell, the Appellant dropped the drugs on the floor, where they were found at her feet.

[14] The second point argued was that the trial judge misapprehended the evidence when he said “now we learn that the green broken condom would be used to protect or insolate [sic] an item that may be in a body cavity”. It is argued that there was no evidence to support this finding, and that the trial judge did not invoke judicial notice in arriving at it.

[15] The issue of judicial notice was not argued to any degree. A helpful summary of the concept is found in the comments of Watt J. (as he then was) in R. v. Scott, 2004 9339 (ON CA), [2004] O.J. No. 90 (S.C.J.) at paras. 35 and 36:

Judicial notice overcomes the necessity of proving facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not established by evidence under oath or its equivalent. There is no testing of facts judicially noticed by cross-examination. See, R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97, 115 (S.C.C.) per McLachlin C.J.

The nature of judicial notice, a substitute for the usual method of proof, requires that the threshold for it be strict. A court may take judicial notice of facts that are:

i so notorious or generally accepted that they are not the subject of debate among reasonable persons; or

ii capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

See, R. v. Find, above, at p. 115 per McLachlin C.J. The first category is often described as the "everybody knows" rule, and the second, the "anybody can find out", or "readily accessible" rule.

[16] It seems to me that “everybody knows” that condoms are routinely used as a vessel for the storage of drugs, either by being placed within a body cavity or, in cases of smuggling, by having the smuggler swallow the drug-filled condom. Reports in the news are commonplace of such vessels rupturing within the body of the carrier, often with fatal results.

[17] Judges are entitled to come to common sense conclusions on the evidence. One does not need expert evidence to draw the connection between the cylindrical package of drugs on the floor, the broken condom in the toilet, the absence of bodily waste in the toilet, and the fact that the Appellant was seated for some period of time on that toilet, with her underwear around her ankles.

[18] Even absent judicial notice, Officer Duncan did provide actual evidence tying the condom to the drugs, when she testified (at pg. 11 of the transcript) that the cylindrical shaped package was the same size as would have gone inside the condom.

[19] There is no merit to this submission.

[20] The third and fourth points that were argued focussed again on the trial judge’s rejection of the alternative hypothesis. I have already dealt with part of that argument. The additional point made was this. It was argued that the trial judge misapprehended the evidence in describing the package of drugs as “brightly coloured” and “brightly wrapped”. In fact, Officer Duncan described it as follows: “it was fairly wrap, like wrapped, it wasn’t just one layer of cellophane. I could see colours all throughout it”.

[21] The relevant point of the trial judge’s recitation of the evidence is that the package was noticeable to anyone sitting there with nothing to do but watch. A package that is wrapped in cellophane, with colours visible throughout it, is clearly noticeable, whether it can be characterized as “brightly coloured” or not.

[22] In R. v. Lohrer, [2004] S.C.R. 732, Binnie J., speaking for the court, referred to a decision of the Ontario Court of Appeal in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) which discussed the concept of misapprehension of the evidence. At para. 4, he said this:

Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

[23] To the extent that the trial judge has misapprehended or mis-described the appearance of the vessel containing the drugs, it goes to detail and not to substance. Furthermore, it does not play an essential part in the reasoning process that led to a conviction. That reasoning process was based on the confluence of several pieces of circumstantial evidence, including but not restricted to the presence of the drugs on the floor near the feet of the accused, which led to the only rational conclusion that the Appellant had had possession of the drugs. The trial judge discussed the appearance of the drug packaging only in the context of testing the alternative hypothesis put forward by the defence: that the drugs had been lying there all along, unnoticed and untouched by anyone. Thus, this discussion was confined to one element only of several items of circumstantial evidence (ie. proximity of the drugs to the Appellant), and cannot be said to have played an essential part in the reasoning process resulting in a conviction.

[24] Objectively speaking, the appearance of the drug package was the least significant item of circumstantial evidence before the court. Much more significant was the fact that the Appellant was seated on the toilet for several minutes, without having excreted any bodily waste, and that the broken condom was found in that very toilet. What was she doing on the toilet for that period of time, if not to eliminate waste? The obvious answer is that she was removing the drug-filled condom from a body cavity.

[25] It is noteworthy that the Appellant did not testify to provide an explanation. The comments of Sharpe J.A. in R. v. Dell, 2005 5667 (ON CA), [2005] O.J. No. 863 (C.A.) at para. 35 are germane:

I would add here that it is a well-established proposition that, when considering the reasonableness of a verdict, an appellate court is entitled to treat an appellant’s silence as indicating that the appellant could not provide an innocent explanation of his or her conduct.

[26] I have no hesitation in concluding that, on the totality of the evidence, a properly instructed trier-of-fact acting judicially would be satisfied that the Appellant’s guilt was the only reasonable conclusion available. The conviction of the Appellant was well supported by the evidence. While it was a circumstantial evidence case, it was nevertheless a powerful and compelling one.

[27] The appeal is dismissed.

[28] The Appellant shall forthwith surrender herself into custody to complete her sentence.

Regional Senior Justice T. A. Heeney

Date: October 1, 2013