2019 QCCA 726, 2019 QCCA 726

Gardner c. R. 2019 QCCA 726 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006356-172 (500-73-003949-134) MINUTES OF THE HEARING DATE: April 12, 2019 CORAM: THE HONOURABLE GUY GAGNON , J.A. PATRICK HEALY , J.A. SIMON RUEL , J.A. APPELLANT COUNSEL DEIDRE CHANTEL GARDNER Mtre STEVEN SLIMOVITCH Mtre OLGA POTLOG (Steven G. Slimovitch, avocat) (Absent) RESPONDENT COUNSEL her majesty the queen Mtre mathieu stanton (Public Prosecution Service of Canada) (Absent)

On appeal from a guilty verdict rendered on December 22, 2016 by a jury of the Superior Court, Criminal Division, District of Montreal, presided by the Honourable Madam Justice Carol Cohen. DESCRIPTION : Guilty verdict – Importation of cocaine - Possession of cocaine for the purpose of trafficking cocaine Clerk: Lory Beauregard Courtroom: Antonio-Lamer HEARING 9 :00 Continuation of the hearing of April 11, 2019. The parties’ attendance is not required this morning. BY THE COURT: JUDGMENT – SEE PAGE 3. Conclusion of the hearing.

Lory Beauregard Clerk BY THE COURT RECTIFIED JUDGMENT [ 1 ] On December 22, 2017, a jury found the appellant, Deidre Chantel Gardner, guilty of importing 31 kg of cocaine into Canada and possession of the said cocaine for the purpose of trafficking. [ 2 ] The appellant appeals these verdicts. She argues that the peremptory challenge of four Afro-Canadian potential jurors was the result of a process that is systemically racist.

She also argues that, in instructing the jury, the judge did not place sufficient emphasis on the cultural phenomenon according to which it is customary for Jamaican Canadians to bring food from their native land back to Canada. Lastly, the appellant argues that an analysis of the circumstantial evidence presented to the jury shows that the verdicts are unreasonable. (

i) Fresh evidence [ 3 ] The appellant filed a motion to adduce fresh evidence comprised of her affidavit and the affidavit of her father (a witness for

the defence). These affidavits describe the process followed by the judge during jury selection. They state that the potential jurors were brought into a courtroom in groups of 20. The first three groups included four Afro-Canadians whom the Crown challenged peremptorily. [ 4 ] The presiding judge and counsel for the parties were present when the challenges occurred during the jury selection process. Moreover, the process followed by the judge is abundantly clear from the transcript of the jury selection hearings.

The appellant’s motion raises nothing that was not already known to her before the start of the trial. Although her motion was previously granted in order for this panel to determine the admissibility of the proposed fresh evidence, the evidence fails to meet the criteria for the admission of fresh evidence and is therefore excluded. (ii) Peremptory challenge [ 5 ] The appellant claims that the process inherent in jury selection was tainted by discrimination based on the race of the potential jurors.

She alleges that after the judge excused a significant number of potential jurors for cause, there were still approximately 60 to 80 potential jurors available to empanel a jury. According to the appellant, the potential jurors still on the jury roll included four Afro- Canadian jurors who were challenged peremptorily by the Crown. The appellant argues that the composition of the jury that convicted her was the outcome of a systemically improper process. [ 6 ] The appeal record shows that potential jurors were called into a courtroom in groups of 20.

The evidence, however, does not reveal which group included the challenged Afro-Canadian potential jurors, nor if they were part of one and the same group. We do know that a jury was empanelled without the need to go through all the remaining potential jurors.

However, it is not possible to determine from the record whether there were Afro-Canadian potential jurors among those remaining potential jurors. [1] [ 7 ] Before dealing with this first ground of appeal, it should be noted that the Court is well aware of Bill C-75, [2] which deals with peremptory challenges and sets out the considerations that led Parliament to address this matter. It is clear, of course, that this pending legislation has no retroactive effect. Moreover, the appellant, has not raised the unconstitutionality of

section 634 Cr.C . , which provides for peremptory challenges. In essence, she attacks the result of a selection process, which she considers to be systemically tainted. [ 8 ] In the case at bar, the appellant is not challenging the procedure followed by the sheriff to establish the jury roll, and has made no claim against the sheriff which would give rise to a challenge of the jury panel on the ground of partiality. Nor is the appellant faulting the judge for the procedure followed during jury selection.

Furthermore, in her appeal brief, the appellant specifies the following: “At the outset, it must be made clear that Appellant is not suggesting that Crown trial counsel was racist or acted in a racist fashion”. [3] Finally, the appellant’s arguments do not contain any attack on the jury’s competence, independence or impartiality, which ought to be presumed. [4] [ 9 ] It should be noted that the appellant, acting through new counsel, filed an application with the judge seeking a mistrial on the ground of “improper use of peremptory challenges”, [5] but this application was filed late, after the guilty verdicts.

The judge dismissed the application on the ground that she was now functus officio for all matters involving the trial, other than those pertaining to sentencing. [6] [ 10 ] That said, the appellant failed to raise the issue of “improper use of peremptory challenges” at the first opportunity, that is, either when the alleged violation occurred or as soon as the jury had been empanelled and, in any event, before the start of the trial.

In Gayle , the Ontario Court of Appeal, for obvious reasons of judicial policy, pointed out that an accused’s failure to raise this type of argument until the appeal creates an insurmountable difficulty for the success of the appeal. [7] [ 11 ] More recently, in the Supreme Court judgment in Kokopenace , [8] Moldaver, J., writing for the majority, stated: [67] In my view, if an accused intends to challenge the representativeness of the jury roll, the appropriate time to do so is at the outset of the trial .

It is a waste of judicial time and resources to conduct an entire trial only to have representativeness challenged after the fact. […] [Emphasis added] [ 12 ] In the case at bar, at the time the jury was empanelled, the appellant already had all the information she is now invoking in this appeal.

And if additional time had been required in order to properly present a relevant legal argument on this issue, she should have asked the trial judge to postpone the hearing, which she did not do. [ 13 ] In effect, the appellant is challenging the representativeness of the jury, in retrospect, based on a particular aspect of its composition.

As explained in Kokopenace , however, a results-based test is not the proper test. [9] Absent any evidence that the sheriff did not make the necessary efforts to compile a representative jury roll, the appellant’s argument must fail. [ 14 ] Moreover, no one here has questioned the strong presumption of jury impartiality. [10] [ 15 ] Lastly, the appellant is not claiming that counsel for the Crown acted in a discriminatory, unjust or unfair manner or abused their position as officers of the court when they exercised the peremptory challenge discretion, in order to obtain a conviction at any price. [11] [ 16 ] To this list of obstacles to the merit of this ground of appeal, we can also add the fact that no representations were made to the judge during her management of the jury selection process.

Faced with an impeccable jury selection process and the absence of any demonstration at first instance of an oblique motive on the part of the Crown, it is not possible to assess how the judge could have acted had this matter been brought before her in a timely manner. It bears repeating that the appellant did not try to challenge the validity of

section 634 Cr.C .

[ 17 ] In short, this first ground of appeal must fail. (iii) The customary practice argument [ 18 ] The appellant argues that the judge, in her instructions to the jury, did not place sufficient emphasis on the customary practice of Canadians who have cultural ties to Jamaica to bring food from their native land back to Canada.

According to the appellant, this was an important issue, because it raised the possibility of reasonable doubt regarding the intent required to commit the crimes of importing cocaine and possession thereof for the purpose of trafficking, given the appellant’s claim that she believed she was bringing Jamaican food back in her luggage. [ 19 ] First, it is worthwhile noting that the appellant’s counsel asked the judge to read to counsel for the parties, outside the presence of the jury, the portion of her instructions on culpable intent.

After having summarized her remarks on this matter, the judge asked defence counsel, “Would you like to hear it exactly?”, [12] and counsel answered, “Please.” The judge therefore read the full version of her instructions dealing with this specific point.

Once she had finished, she asked defence counsel if this was satisfactory (“Alright?”), [13] to which counsel replied “[c]orrect.” [14] [ 20 ] Aside from these discussions between the judge and counsel outside the presence of the jury, defence counsel never complained, either before or after the instructions to the jury, that these instructions were insufficient, particularly as regards a customary practice of Jamaican Canadians. [ 21 ] But there is more. The appellant’s counsel had taken the time to prepare a

summary of their theory of the case and asked the judge to read it to the jury; the judge read it in full: And I would like to briefly read out to you each of the parties’ theory of the case, what they have pleaded. They have prepared me a written statement , a resume of what they pleaded, and I am going to give that to you now to remind you, although you heard i[t] this morning.

So, the Defense theory of the case. […] [15] [Emphasis added] [ 22 ] Moreover, later in her instructions, the judge referred specifically to the following: Richard’s aunt reminded her she would be bringing food back only hours before she left, and she did so in front of a table covered in Jamaican food.

This was customary to Jamaican Canadians and she had no reason to be suspicious . [16] [Emphasis added] [ 23 ] Based on the appellant’s argument, it would appear that she would have liked more detailed instructions on a practice with respect to which her own counsel’s observations took up only 13 lines in the transcripts. [17] It is difficult to fault the judge for having given this matter as much importance in her instructions to the jury as the appellant’s counsel did in their address to the jury. [ 24 ] The fact that the appellant’s counsel did not object to the instructions or ask the judge for more details is indicative of the lack of seriousness, if any, of this so-called irregularity the appellant is raising on appeal. [ 25 ] The Supreme Court pointed out, in Daley , that the instructions to the jury must be considered together with the addresses of the parties’ counsel. [18] In the case at bar, the judge’s instructions and the representations of counsel for the defence allowed the jury to weigh the probative value of the argument based on a customary practice of Jamaican Canadians when travelling, a customary practice which has become more important on appeal than it was at trial. [19] [ 26 ] This second ground of appeal must also fail. (iv) Unreasonable verdicts [ 27 ] The appellant states that the evidence in the case at bar was circumstantial.

When testifying, she denied knowing that she was transporting 31 kg of cocaine in her two suitcases (one of which had been provided by the persons who had housed her in Jamaica). She believed instead that she was bringing back food from the country she had visited. Before the jury, she emphasized the following elements of the case, which she reiterated on appeal, in order to support the argument that the verdicts are unreasonable:

(1) Did not have a criminal record,

(2) Was highly educated,

(3) Had a full-time job,

(4) Was financially stable,

(5) Had a stable family life,

(6) Absent her boyfriend, (of whom she knew not that he was in any way connected with the drug trade), had no connection to the drug trade, and,

(7) Could not possibly have been an experienced mule as she had left Canada only twice previously. [20] [ 28 ] None of these arguments raised a reasonable doubt in the minds of the jurors. In fact, the appellant’s theory was unbelievable in many ways: 1. Although they had been together for some time and she trusted him completely, the appellant did not know her boyfriend’s (Richard) last name at the time. That boyfriend organized (and paid for) her trip to Jamaica. Yet she told her family in Canada that she was going on vacation with friends on a ski trip. 2.

While in Jamaica, she did not visit her own family members who resided there. Instead, she stayed at a hotel for a few days before being housed by “Richard’s” family, and taken care of by his cousin, a person named “Tyrone”.

3. The day before her return to Canada, the appellant purchased large plastic bags at the Mega Mart Store in the city of Montego Bay. Upon her arrival in Canada, the country’s Border Services officers discovered 63 large plastic bags containing cocaine in her luggage. 4. During the return trip, “Tyrone” travelled on the same plane as the appellant, but sat in a different section. There is no evidence that, once they arrived in Canada, he helped the appellant carry the two suitcases that were allegedly full of Jamaican food and weighed at least 31 kilos, or that he went to the luggage claim area with her.

Moreover, the appellant never mentioned to the officer that she was travelling with a person named “Tyrone”, and the evidence does not indicate that this supposed friend showed any concern regarding the appellant’s misadventure. 5. When questioned by the customs officer about the contents of her luggage, and after having told the officer that she had packed her two suitcases and knew their contents, she declared that she was bringing back “soya milk” for her family, because they loved it. 6.

At the hearing, the appellant contradicted herself, saying that the day before her departure, “Richard’s” aunt and cousin “Tyrone” were the ones who had packed her two suitcases with Jamaican food and that she had paid no attention to what they were doing. She thought she was bringing back food prepared by “Richard’s” Jamaican aunt. 7. However, just as the officer was about to discover that she was transporting the largest quantity of cocaine ever seized at the Montreal airport in the past several years, she texted “Richard” several times and made revealing comments regarding her state of mind.

These texts were sent while her luggage was being searched. When sentencing the appellant, the judge described the situation as follows: [39] The evidence at trial showed that at 2:07 am, Ms. Gardner texted one of Richard’s cellphones, registered to a Chris Tucker, saying: “ I go pulled over ”. At 2:17 am, she texted “ What now? ”. Richard answered at 2:18 am “ Get a room ” and she responded at 2:22: “ I can’t. They searching ”. At 2:26 am, Richard texted: “ Ok then done get a room ”. At 2:29 am, Ms. Gardner texted Richard: “ I cannot. She saying its picking up traces of things ”. At 2:40 am, Ms.

Gardner texted: “ Now what ”, and Richard responded at 2:41 am: “ R then done now ”. [40] Ms. Gardner[’s] cell phone records also indicated that at 2:18 am, she texted to her friend Jessica, with whom she had been living in Toronto, saying: “ I’m going to jail ”. At trial, Ms. Gardner testified that this mention of jail to Jessica was because she would have heard Ms. Carrière say the word “ prison ” in French, which she understood. Ms. Carrière did not testify as to having said the word “ prison ” at that point of the examination of Ms.

Gardner’s luggage. [21] [ 29 ] In short, there were several probative elements that seriously undermined the appellant’s credibility, not to mention that the 31 kg of cocaine found in her suitcases was certainly not circumstantial evidence. [ 30 ] The evidence in the record clearly shows that the verdicts are based on probative evidence that could convince a properly instructed jury of the accused’s guilt beyond a reasonable doubt.

In the case at bar, the appellant has not shown that the jury’s verdicts conflict with the bulk of judicial experience in this matter: 40 When an appellate court arrives at that conclusion, it does not act as a “thirteenth juror”, nor is it “usurping the function of the jury”. In concluding that no properly instructed jury acting judicially could have convicted, the reviewing court inevitably is concluding that these particular jurors who convicted must not have been acting judicially.

In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. This, in my view, is the assessment that must be made by the reviewing court.

It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction. [22] [ 31 ] The argument that the verdict is unreasonable must therefore be rejected. FOR THESE REASONS, THE COURT: [ 32 ] DISMISSES the appeal. GUY GAGNON, J.A. PATRICK HEALY, J.A. SIMON RUEL, J.A.