R. v. IGBINOBA, 2015 ONSC 3568

COURT FILE NO.: CV-13-91-00

DATE: 20150602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID IGBINOBA and EWAH GODWIN

Defendants

R. Johnston for the Crown

A. Akinyemi for Mr. IGBINOBA

E. Ghebrai for Mr. GODWIN (Applicant)

HEARD: May 28, 2015

ENDORSEMENT ON THE ADMISSIBILITY OF CERTAIN EVIDENCE

Ricchetti, J.:

THE CHARGES

[1] Mr. Igbinoba is charged as follows:

a) importation of heroin;

b) conspiracy to import heroin; and

c) possession for the purpose of trafficking.

[2] Mr. Godwin is charged as follows:

a) conspiracy to import heroin; and

b) possession for the purpose of trafficking.

[3] Mr. Godwin is also charged with possession of heroin. However, all counsel agreed that the possession charge would be dealt with after the completion of the present trial. New indictments were filed on May 27, 2015 severing this count.

[4] An application for severance was heard in the fall of 2014 by Justice André. The application was dismissed.

[5] On May 27, 2015, a jury was selected for this trial. This trial is scheduled to proceed on May 29, 2015.

[6] This pre-trial application was heard on May 28, 2015.

[7] During the course of argument, Mr. Godwin's counsel raised the possibility of a renewed severance application, but none was brought during this application.

[8] I advised counsel that the evidence was admissible and written reasons would be provided at a later date. These are those reasons.

THE APPLICATION

[9] Mr. Godwin brought this application to exclude "the evidence of tracking numbers allegedly located on a cellphone upon the arrest of Mr. Godwin."

[10] At the conclusion of the evidence on the voir dire, Mr. Godwin's counsel, fairly and properly, conceded that the evidence of the tracking numbers allegedly located on Mr. Godwin's cellphone were admissible at the instance of the co-accused, Mr. Igbinoba, given the evidence of Mr. Igbinoba at the voir dire and the position that Mr. Igbinoba will take at trial.

[11] However, during the course of the hearing the issue of the admissibility of certain other propensity evidence, namely the discovery of a digital scale, cash and a small quantity of heroin during the search of Mr. Godwin's home pursuant to a search warrant shortly after his arrest, arose.

[12] Mr. Godwin seeks an order excluding this specific propensity evidence at the trial. The Crown agrees it will not lead this evidence. However, Mr. Igbinoba’s counsel has advised he will seek to elicit this evidence from the police officers during his counsel's cross-examination of Crown witnesses.

[13] While there is no proper application before this court on this specific relief, I agreed to hear the application because:

a) time had been set aside to deal with pre-trial matters and it was preferable to deal with the issue now so as not to adjourn the jury trial to deal once the trial proper commenced;

b) the necessary evidence was already in the record on the voir dire or conceded by counsel in argument;

c) the parties appeared ready to deal with the admissibility of this evidence at this time;

d) this issue had already been identified as part of the severance application in the fall of 2014 which led to the consent severance of the count but the admissibility of this evidence appears to not have been dealt with; and

e) No counsel requested an adjournment to prepare for this application or suggested any prejudice to hearing the application at this time.

[14] Mr. Godwin's counsel does not oppose the admissibility of the scale or the cash. The objection only relates to the small amount of heroin discovered at Mr. Godwin’s home during the search.

[15] As a result, the issue for this court is whether the discovery of small amounts of heroin in Mr. Godwin's home by the police during the execution of their search warrant shortly after Mr. Godwin's arrest is admissible by Mr. Igbinoba to exercise his right of full answer and defence in this trial.

THE POSITION OF THE PARTIES

[16] Mr. Godwin's counsel submits that there is no relevance to the discovery of the small amount of heroin at his home to the present charges and, as such, even at the instance of a co-accused, such evidence, is not admissible.

[17] Mr. Igbinoba's counsel submits the discovery of the small amount of heroin, along with all the other evidence found at Mr. Godwin’s home and on his cell phone, is highly relevant evidence that it was Mr. Godwin's plan and, with his knowledge, to import the package containing the heroin from Thailand.

[18] Mr. Igbinoba's defence is that he had no knowledge the package contained any drugs. Mr. Igbinoba’s counsel submits the evidence of discovery of the heroin at Mr. Godwin’s home is admissible because it makes it more likely that Mr. Igbinoba was an innocent person in these circumstances and Mr. Godwin the importer of the heroin.

THE FACTS

[19] The police received information from the United States Border Services that a package from Thailand, en route to Canada, contained heroin. Approximately one kilogram of heroin was concealed in the package, in a briefcase. As a result, the police decided to engage in a controlled delivery of the package.

[20] The package was delivered to a self storage facility. Mr. Igbinoba rented facilities and a mailbox at the self-storage facility but in the name of a third person. Mr. Igbinoba was called about the arrival of the package on or about August 11, 2011. Mr. Igbinoba attended at the storage facility, paid the delivery charges and took possession of the package.

[21] Mr. Igbinoba got into his car with the package. The police were in surveillance of Mr. Igbinoba.

[22] Shortly after Mr. Igbinoba left the storage facility, he parked on the side of the street. Shortly afterwards, Mr. Godwin arrived in his own vehicle. Mr. Godwin stopped a short distance behind Mr. Igbinoba.

[23] Mr. Igbinoba got out of his car with the package in hand. He went to Mr. Godwin's vehicle. He entered Mr. Godwin’s vehicle, stayed a very short time, and then returned to his vehicle. Mr. Igbinoba no longer had the package when he returned to his vehicle.

[24] Shortly after Mr. Igbinoba and Mr. Godwin were arrested. The package was found in Mr. Godwin's vehicle. A “wad” of cash was found in Mr. Igbinoba's vehicle.

[25] A search warrant was subsequently issued for Mr. Godwin’s home. A small amount of heroin, some cash and a digital scale was found in Mr. Godwin's home.

[26] Mr. Igbinoba submitted an affidavit as evidence on the voir dire. There was considerable cross-examination as to the truthfulness or accuracy of the evidence of Mr. Igbinoba. Nevertheless, Mr. Igbinoba testified that he and Mr. Godwin were going into business together to import rice. Mr. Godwin told him that he had contacts in Thailand who could get Mr. Igbinoba a better price for the rice.

[27] Mr. Godwin also told Mr. Igbinoba that he had had some problems receiving packages and could not receive packages at his new home. Mr. Godwin asked Mr. Igbinoba whether he could have delivered some gift or other package(s) to Mr. Igbinoba's storage facility. Mr. Igbinoba agreed.

[28] Mr. Igbinoba agreed he picked up the package, addressed to a third party, believing it to be a package for Mr. Godwin. Mr. Igbinoba denied knowing that there were drugs in the package. He stated his only role was to pick up the package for Mr. Godwin and deliver it to Mr. Godwin.

[29] Mr. Igbinoba also pointed to evidence that Mr. Godwin had, on his cell phone, tracking numbers for other packages from Thailand. Three such packages had arrived earlier for the same named third party. One package was en route. This last package was stopped by the police but nothing relevant was found in that package.

[30] Mr. Igbinoba also pointed to a similarity to the telephone numbers involving the other tracking numbers and Mr. Godwin’s telephone number.

[31] Essentially, Mr. Igbinoba’s defence is that it was Mr. Godwin who imported the heroin without Mr. Igbinoba’s involvement or knowledge.

THE LAW

[32] The Crown concedes it would not be entitled to lead the subject evidence. The Crown concedes that the subject evidence has little probative value as against Mr. Godwin and is prejudicial as it may lead to propensity reasoning such as: "If Mr. Godwin uses heroin, he must have been the person importing the heroin and knew it was in the package". See Makin v. Attorney-General for New South Wales, [1894] A.C. 57 (P.C.) at p. 65. The Crown does not suggest that the probative value exceeds its prejudicial value as against Mr. Godwin as a means of admissibility. See R. v. Handy 2002 SCC 56 at para 55.

[33] Where the evidence is sought to be introduced in a joint trial by one accused against another, different considerations apply.

Evidence adduced by a co-accused

[34] Let me start with the case of R. v. Crawford 1995 138 (SCC), [1995] 1 S.C.R. 858. There were two accused of murder. Both suggested it was the other - a "cut throat defence". At the center of the Crawford case was the cross examination by one co-accused of another co-accused’s failure to make any statement to the police at the time of arrest. The Supreme Court stated the following:

12. Where an attack on a co-accused is relevant to his defence, an accused cannot be limited…

13. There is no doubt about the right of co-accused persons to cross-examine each other in making full answer and defence. See R. v. McLaughlin (1974), 1974 748 (ON CA), 2 O.R. (2d) 514 (C.A.), and R. v. Ma, Ho and Lai (1978), 1978 2405 (BC CA), 44 C.C.C. (2d) 537 (B.C.C.A.). Moreover, restrictions that apply to the Crown may not apply to restrict this right of the co-accused. As pointedly observed by D. W. Elliott, "Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused", [1991] Crim. L. Rev. 5, at p. 17, "[t]he notion of the Crown having one hand tied behind its back is familiar and accepted, but not the notion of a person standing trial being in that position".

See also R. v. Jackson (1991), 1991 11739 (ON CA), 68 C.C.C. (3d) 385 (affirmed on other grounds, 1993 53 (SCC), [1993] 4 S.C.R. 573), at p. 434, per Doherty J.A. Accordingly, a co-accused may adduce evidence of or cross-examine on the disposition or propensity of a co-accused to commit the offence even though the co-accused has not put his character in issue, and may cross-examine a co-accused on a statement the voluntariness of which has not been established. See R. v. Kendall and McKay (1987), 1987 180 (ON CA), 35 C.C.C. (3d) 105 (Ont. C.A.); Lowery v. The Queen, [1974] A.C. 85 (P.C.); R. v. Pelletier (1986), 1986 1179 (BC CA), 29 C.C.C. (3d) 533; R. v. Jackson, supra. Exclusionary rules based on a policy of fairness to the accused would preclude the Crown resorting to this kind of evidence.

28 The right to make full answer and defence is protected under s. 7 of the Charter. As stated in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at p. 336:

This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. . . . The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.

This right extends to prevent incursions on its exercise not only by the Crown but by the co-accused. As observed by Goodman J.A. in Kendall, supra, at p. 127:

Having been obliged to participate in a joint trial, Kendall was nevertheless entitled to make full answer and defence in accordance with the principles of fundamental justice: see Canadian Charter of Rights and Freedoms, s. 7, and the Criminal Code of Canada, s. 577(3). The law is clear that if Kendall had been tried alone he would have been entitled to call Dakin's evidence to show that it was probable that McKay had committed the crime. His right to call that evidence cannot be denied simply because he was obliged to participate in a joint trial.

The right to full answer and defence, as is the case with other Charter rights, is not absolute. It must be applied and be subject to other rules that govern the conduct of a criminal trial. As I stated in Dersch v. Canada (Attorney General), 1990 3820 (SCC), [1990] 2 S.C.R. 1505, at p. 1515:

The right to full answer and defence does not imply that an accused can have, under the rubric of the Charter, an overhaul of the whole law of evidence such that a statement inadmissible under, for instance, the hearsay exclusion, would be admissible if it tended to prove his or her innocence.

[35] In Crawford, the matter was sent back for a new trial based on the lack of complete and proper jury instructions by the trial judge as to how the evidence could be used.

[36] This issue was recently considered by Justice Boswell in R. v. Pan [2014] O.J. No. 5963 (SCJ). This case involved multiple murders in a home invasion. The accused engaged in a cut throat defence. One accused wanted to lead evidence that one of the other accused had a propensity for extremely violent behaviour based on his past actions. The Justice Boswell summarized the law as follows:

23. While the presumptive rule prohibits the Crown from adducing propensity evidence against an accused, it does not operate in the same way against an accused who seeks to tender similar evidence against a co-accused in an effort to raise a reasonable doubt about his or her own guilt. That said, even when tendered by an accused person, the ride through the admissibility gateway is not entirely free and unfettered. Though the evidence may be relevant to the defence of one accused, it may yet result in prejudice, distraction and unwarranted time consumption. In the result, the court must take great care in assessing the evidence on offer and in balancing the interests of all of the accused.

24 When one accused intends to introduce propensity evidence about another, it is incumbent upon counsel to advise the court of that intention, to precisely describe the evidence to be called and to identify the live issue to which the evidence relates. Only through a careful examination of the evidence and its likely impact, can the court sufficiently weigh its probity, consider the prejudicial effect it is likely to have and, ultimately, balance the fair trial rights of all accused. As Rosenberg J.A. held in R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652, 187 C.C.C. (3d) 213, at para. 106:

[S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered...An evidentiary foundation is essential to ensure fair management of the trial. The need for the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of the defence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence.

25 Once the accused person tendering the propensity evidence has clearly identified it, established the requisite evidentiary foundation for it, and established its relevance and materiality, the onus shifts to the party seeking to exclude the evidence to satisfy the court that it ought to be excluded, despite its relevance to a live issue in the trial. Typically, exclusion is sought under the court's residual discretion to exclude evidence pursuant to its trial management function.

26 As former Chief Justice Dickson observed in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at para. 98:

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

27 The court's discretion to exclude otherwise relevant and material evidence is circumscribed, as Justice Dickson's ruling indicates. The limited circumstances in which the discretion be invoked were described again by Watt. J.A. in R. v. Spackman, 2012 ONCA 905, at paras. 115, as being where:

(a) the probative value of the evidence is overborne by its prejudicial effect;

(b) the introduction of the evidence would involve an inordinate amount of time not commensurate with its value to the determination of the dispute; or

(c) the evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof.

28 The court's residual discretion to exclude otherwise relevant and material evidence is even further circumscribed when that evidence has been tendered by an accused. Where evidence tendered by an accused person is sought to be excluded on the basis of its prejudicial impact, the court must be satisfied that the prejudicial effect of the evidence substantially outweighs its probative value: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577; R. v. Pollock, as above, at para. 110.

[37] As acknowledged by counsel and their respective positions, the threshold issue is whether the subject evidence has relevance and, if so, to what extent is the evidence probative to Mr. Igbinoba’s defence.

Relevance of Items found at an accused’s home to a charge of importation

[38] During the course of argument, I asked counsel if there were any similar cases relating to importation of drug charges. None were brought to my attention.

[39] However, I note that the situation before this court has been dealt with on several occasions by the Supreme Court of Canada. In the following cases, only one accused was on trial. As a result, the impact of a joint trial and two accused engaging in a cut throat defence was not dealt with and must still be considered in the admissibility of the subject evidence.

[40] In R. v. Cloutier, 1979 25 (SCC), [1979] 2 SCR 709, the accused was charged with importing marijuana. at issue was the following:

(p. 734)

In a search made of the accused's home before his arrest, the prosecution seized a number of items: these included, inter alia, a manuscript in which the accused extolled the virtues of marijua­na, a metric scale, a cigarette butt made of a green vegetable substance, tweezers and three pipes.

The trial judge allowed all these exhibits to be presented. He also allowed the prosecution to prove that the cigarette butt and one of the pipes gave off an odour of cannabis. The uncontradicted evidence disclosed in addition that these items (metric scale, tweezers and pipes) are of the type that is ordinarily found in the possession of marijuana users. However, the trial judge did not allow the introduction of certificates of analysis which would have established beyond any question that the cigarette butt was made of marijuana and that the pipes had been used to smoke this drug, traces of which were also found on the tweezers and the metric scale. The judge also refused to admit a glass jar containing a green substance, which had been seized at the accused's home in the aforementioned search, and the certificate of anal­ysis establishing that this substance was marijua­na.

The question to be resolved in the case at bar is whether the fact that the accused uses marijuana creates a logical inference that he knew or ought to have known that the dresser contained a narcotic at the time it was imported. To me there is no connection or nexus between either of these two facts. The use of marijuana by the accused cer­tainly established that he knew of this narcotic, that he was in a position to identify it, but it had no probative value in relation to the guilty knowl­edge which must be proven by the prosecution. The evidence that the prosecution sought to introduce can have only one effect: that of raising suspicions against the accused solely for the reason that a marijuana user is more likely to import the substance illegally than someone who does not use the narcotic. In my view, this is precisely the type of evidence which cannot be admitted.

For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real proba­tive value with respect to the latter (Cross, On Evidence, 4th ed., at p. 16).

Thus, apart from certain exceptions which are not applicable here, evidence is not admissible if its only purpose is to prove that the accused is the type of man who is more likely to commit a crime of the kind with which he is charged; such evi­dence is viewed as having no real probative value with regard to the specific crime attributed to the accused: there is no sufficient logical connection between the one and the other.

Nor should this evidence be admitted because it may disclose the interest of the accused in the importation. Proof of the motive for a crime is generally admitted as circumstantial evidence: in his Textbook of Criminal Law, Glanville Williams writes at p. 56:

The prosecution may prove a motive for the crime if it helps them to establish their case, as a matter of circum­stantial evidence; but they are not legally bound to prove motive, because a "motiveless" crime is still a crime.

However, I think it is clear that evidence as to the accused's motive cannot be admitted if it is not relevant, that is, if it does not disclose a sufficient­ly close logical connection between the facts that are to be proven as a motive and the crime com­mitted. Proof of the accused's motive cannot be a means of circumventing the application of the rules of evidence regarding relevance and similar acts.

The other ground relied on by the Court of Appeal was that the evidence at issue could also have been used to [TRANSLATION] "cast doubt on the hypothesis that he [the accused] was the inno­cent victim of an importation orchestrated by other persons".

This second ground does not appear to me to have any more validity than the first one. The accused called no witnesses in his defence; nothing in the cross-examination of the prosecution wit­nesses suggests that the accused intended to argue that he did not know what marijuana was and could not identify it. This is not a situation where the prosecution may try to rebut a possible defence; rather, it must try to prove one of the essential elements of the crime attributed to the accused: guilty knowledge (see Thompson v. The King[32], per Lord Sumner, at p. 232; Noor Mohamed v. The King, supra, per Lord du Parcq, at pp. 191 et seq.).

[41] The Supreme Court in Cloutier distinguished the decision in Levac v. The Queen (C.A.M. 10-000030-73 where relevancy had been found between narcotics’ items found in the accused's home and the charge of importing.

(p 736-737)

In support of its decision, the Court of Appeal referred to its finding in Leva; Mayrand J.A. observed:

[TRANSLATION] In Levac v. The Queen (C.A.M. 10-000030-73, judgment dated June 2, 1975), appellant relied as a ground of appeal on the fact that the trial judge had authorized the introduction of a scale, a pipe and other items found at the home of the appellant charged with importing the narcotic. This Court dismissed the appeal. Owen J.A., whose opinion was con­curred in by his brother judges, said:

"In order to prove the offence charged, the Crown had to establish in addition to the importation of the cylinders containing marihuana a guilty knowledge on the part of Levac. A party having no knowledge of narcotics or of the drug scene might innocently accept $450 from a virtual stranger in order to clear through customs a shipment from Jamaica of two metal cylin­ders purportedly coming into this country for the purpose of being repaired. A person possessing a balance that had been used for weighing marihuana, a small quantity of marihuana, and a pipe that had been used to smoke "resine de cannabis" and who in explaining his possession admitted being a user of marihuana would not be as likely to do so innocently.

I agree with the presiding judge that in this particular case the exhibits and the evidence showing that Levac used marihuana was relevant to an essential element in the charge against Levac namely the guilty knowl­edge in connection with actual importation of the cylinders containing marihuana."

If this Court held in the aforementioned case that the evidence was properly admitted, I must conclude in the case at bar that the same evidence should be admitted.

The very wording of the reasons of Owen J.A. indicated that the decision in Levac depended on the particular circumstances of the case: Owen J.A. expressly stated, "I agree with the presiding Judge that in this particular case the exhibits and the evidence ... was relevant to an essential element

[Page 737]

in the charge against Levac, ...". The deci­sion in Levac should therefore not be given a general application which it does not warrant.

[42] The Cloutier decision by the Supreme Court is a confusing case. Some items showing the accused’s use of marijuana was admitted as relevant to the charge of importing while others were not. The Supreme Court did not deal with the items which had been admitted. The only issue before the court were the items which the trial judge had not admitted.

[43] The Supreme Court dealt with the same issue in R. v. Morris 1983 28 (SCC), [1983] 2 S.C.R. 190. In this case, on his return from Hong Kong, the accused was charged with importing heroin. A search of the accused's apartment took place the day after his arrest. In the bottom drawer of a night table there was a newspaper article regarding the movement of the heroin trade to Pakistan. On behalf of the majority, Justice McIntyre stated the following:

(p. 191)

In my view, an inference could be drawn from the unexplained presence of the newspaper clipping among the possessions of the appellant, that he had an interest in and had informed himself on the question of sources of supply of heroin, necessarily a subject of vital interest to one concerned with the importing of the narcotic. It is this feature which distinguishes the case at bar from Cloutier v. The Queen, 1979 25 (SCC), [1979] 2 S.C.R. 709, where the purpose of the impugned evidence was to show that the accused was a user of marijuana and had the necessary mens rea for the offence of importing.

(p. 192)

Pratte J. dealt with the matter in these words, at p. 734:

The question to be resolved in the case at bar is whether the fact that the accused uses marijuana creates a logical inference that he knew or ought to have known that the dresser contained a narcotic at the time it was imported. To me there is no connection or nexus between either of these two facts.

In the case at bar the connection of nexus, absent in the Cloutier case, was clearly present. Depending on the view of the trier of fact and the existence of other evidence, an inference could possibly have been drawn or could have been supported to the effect that preparatory steps in respect of importing narcotics had been taken or were contemplated.

The evidence of the newspaper clipping is similar in nature to the cheque forms of certain banks and the list of banks found in possession of the accused and admitted in evidence on a charge of fraudulently endorsing and cashing a cheque in R. v. Gaich (1956), 1956 520 (ON CA), 24 C.R. 196 (Ont. C.A.), or the list of burgled premises found upon one of the accused which was admitted in evidence on a charge of unlawful possession of house-breaking implements in R. v. Hannam, 1963 728 (NS SC), [1964] 2 C.C.C. 340 (N.B.C.A.) Other cases which have dealt with this issue are: Picken v. The King, 1938 21 (SCC), [1938] S.C.R. 457; R. v. Mustafa (1976), 65 C.A.R. 26; R. v. Kanester, 1966 544 (BC CA), [1966] 4 C.C.C. 231 (B.C.C.A.); R. v. Jesseau and Breen (1961), 1961 471 (BC CA), 129 C.C.C. 289 (B.C.C.A.); and an Australian case, R. v. Hull, [1902] Q.S.R. 1.

I agree that the probative value of such evidence may be low, especially since the newspaper article here concerns the heroin trade in Pakistan rather than in Hong Kong, which was apparently the source of the heroin involved in this case. However, admissibility of evidence must not be confused with weight. If the article had concerned the heroin trade in Hong Kong, it would of course have had greater probative value. If the article had been a manual containing a step-by-step guide to importing heroin into Vancouver from Hong Kong, the probative value would have been still greater. The differences between these examples, however, and the facts at bar are differences in degree, not kind. In other words, the differences go to weight and not to admissibility.

[44] The conviction was upheld in Morris by the majority.

ANALYSIS

Is the evidence of Mr. Godwin's possession relevant to Mr. Igbinoba's defence?

[45] The issue in this case is whether Mr. Igbinoba had knowledge the package contained a controlled substance. He suggests that the importation was planned and carried out by Mr. Godwin without Mr. Igbinoba’s knowledge. Mr. Igbinoba points to the propensity of Mr. Godwin to import heroin given his alleged possession of heroin and his possession of items which are consistent with distribution of heroin.

[46] Relevance was described by Justice Watt in R. v. Luciano, 2011 ONCA 89 as follows:

[204] Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense. Attaching a label like “evidence of after-the-fact conduct” or “post-offence conduct” to an item of evidence does not establish its relevance. An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence, through the application of everyday experience and common sense.

[205] We assess the relevance of items of evidence in the context of the entire case and the positions of counsel. Relevance does not exist in the abstract or in the air: R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709, at pp. 730-32. An item of evidence does not cease to be relevant or become irrelevant because it can support more than one inference: R. v. Underwood (2002), 2002 ABCA 310, 170 C.C.C. (3d) 500 (Alta. C.A.), at para. 25.

[206] To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. What is essential is that the item of evidence must reasonably show, by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than it would be without it: 1 McCormick on Evidence (6th ed.), para. 185, at p. 733.

(emphasis added)

[47] Mr. Igbinoba seeks to use the evidence of Mr. Godwin's possession of the heroin, as part of the overall evidence and circumstances in this case, that Mr. Godwin was the planner and importer of the heroin because of:

a) Mr. Godwin's possession of shipment tracking numbers from which one could conclude Mr. Godwin had received a number of packages from Thailand, a place where controlled substances originate;

b) Mr. Godwin's alleged connections with persons from Thailand;

c) Mr. Godwin's receipt of this package and being the person who had the package last (i.e. Mr. Igbinoba gave Mr. Godwin the package containing the heroin);

d) the fact the package contained a large quantity of heroin (sufficient for the purpose of trafficking);

e) Mr. Godwin's familiarity and use of heroin; and

f) Mr. Godwin's possession of a digital scale, an object which can be used to reduce large quantities of drugs such as heroin, into smaller quantities and which such items are commonly possessed by those in the drug trade

[48] Mr. Igbinoba also submits that:

a) there is no evidence he had any connections with persons from Thailand or previous dealings with any packages from Thailand;

b) the evidence is that he simply received and immediately transferred the package to Mr. Godwin within a very short time; and

c) there is no evidence Mr. Igbinoba has any connection to any drugs whatsoever.

[49] Mr. Igbinoba suggests that these alleged facts are consistent with Mr. Igbinoba being, unknowingly, the middle man for Mr. Godwin's plan to import the heroin.

[50] Mr. Igbinoba's counsel submits the evidence of Mr. Godwin's possession of the heroin adds to the entire evidence from which the jury can infer that it is more likely Mr. Igbinoba did not know the package contained heroin and to infer that it is more likely it was Mr. Godwin who planned and imported the heroin without Mr. Igbinoba’s knowledge.

[51] I agree. As a result, I am satisfied that the possession of heroin may very well lead the jury to the inference which the Supreme Court found was available in Morris, which inference may very well assist Mr. Igbinoba’s defence he wishes to put forward.

[52] The inference that is sought to be urged by Mr. Igbinoba's counsel on the jury is more compelling with the admission of the evidence of Mr. Godwin’s possession of heroin. Further, as in Morris, the evidence has a relevance to show that it was Mr. Godwin, not Mr. Igbinoba who “had an interest in” heroin, its use and its possible acquisition by importation for use or distribution. This inference might assist Mr. Igbinoba’s defence that it was not him and he had no idea the package contained heroin. It provides a possible rationale for the jury to accept as to why Mr. Godwin would more likely be the importer of the heroin for personal use and/or distribution rather than Mr. Igbinoba.

[53] The evidence is relevant to Mr. Igbinoba’s defence.

Will there be prejudice to Mr. Godwin?

[54] No doubt there is potential for propensity reasoning. The drugs found in Mr. Godwin's home is the same as the drugs being imported. The connection is apparent. The jury might engage in impermissible propensity reasoning to conclude that because Mr. Godwin is a possessor of heroin, he is more likely to be an importer of the heroin. A limiting instruction can and should be provided to the jury prohibiting the use of this propensity evidence against Mr. Godwin. In my view, this limiting instruction would balance the competing interests of both accused in a fair manner.

[55] In R. v. Suzack, 2000 5630 (ON CA), [2000] 128 O.A.C. 140the Court of Appeal suggested that the appropriate way to balance a fair trial for both accused where there is a "clash" in the joint trial is by way of a limiting instruction.

126 R. v. Valentini, supra, confirms the trial judge's obligation to balance the competing interests of co-accused where those interests clash in a joint trial. It also demonstrates that the way the balance is achieved will vary with the circumstances of the case. What is important is that the jury understand the purpose for which the evidence is admitted and that the prejudice to the co-accused be minimized.

127 In a case like this one where an accused leads evidence of the co-accused's propensity for violence in support of the position that the co-accused committed the crime, a proper balance of the competing interests requires that the jury be told how it can use the evidence in considering the case of the accused and how it cannot use the evidence in considering the case of the co-accused. An example of an appropriate limiting instruction is found in the draft specimen charges developed by the Ontario Specimen Jury Instruction Project under the direction of the Honourable Mr. Justice David Watt. That instruction provides:

(1) Sometimes a person charged with a crime will say, "it was not me, it was (an) other person charged who did it", and will point to evidence that this other person had an opportunity and a disposition to do it. In this case, (NOA1) is saying that (NOA2) committed the crime, and points to evidence (NOA2) is the sort of person who would do such a thing.

(2) It is up to you to determine whether the disposition evidence, alone, or together with other evidence, raises a reasonable doubt that (NOA1) committed the offence charged. However you must not use the disposition evidence in any way when you consider whether Crown counsel has proven the case against (NOA2). No one can be convicted of a crime just for being the sort of person who might have committed it.

(3) In other words, you may consider evidence of (NOA2)'s opportunity and disposition to commit the offence(s) charged in deciding whether you have a reasonable doubt that (NOA1) committed it (them), but you must not use evidence of (NOA2)'s disposition to find (NOA2) guilty of it (them).

[56] With this limiting instruction, is the probative value of the possession of the heroin substantially outweighed by the prejudicial impact? I am not persuaded that this has been shown.

CONCLUSION

[57] The evidence of the discovery of the heroin in Mr. Godwin's home may be adduced by Mr. Igbinoba, if he chooses to do so.

Ricchetti, J.

Released: June 2, 2015