



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2021 ONCA 337

DATE: 20210520

DOCKET:
C64868

Juriansz, van Rensburg and
    Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcia Chambers

Appellant

Mark C. Halfyard, for the appellant

Brian Puddington and Leanne Siu, for
    the respondent

Heard: May 5, 20201 by video
    conference

On appeal from the conviction entered by
    Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on
    September 25, 2017.

Juriansz
    J.A.:


[1]

The appellant appeals her conviction of
    possession for the purpose of trafficking in cocaine and marijuana. The police
    executing a search warrant found the drugs in her bedroom in an apartment she
    shared with her adult son. She was arrested away from the residence shortly
    before the execution of the search warrant. The sole issue at trial was whether
    the Crown could establish the appellants knowledge of the drugs found in her
    bedroom. The defence theory at trial was that an available and reasonable
    inference was that during the short delay while the police were attempting to
    gain entry to the residence, the son moved the drugs into the appellants
    bedroom.

[2]

The appellant raises three grounds of appeal:

1. the trial judge erred in failing to exclude
    police opinion evidence about the appellants demeanour and in failing to
    instruct the jury to disregard that evidence;

2. the trial judge failed to instruct the jury
    that if any reasonable inference other than guilt was available, they must
    acquit, and he failed to highlight the other dangers of relying on
    circumstantial evidence; and

3. the verdict was unreasonable as there was
    insufficient evidence to establish knowledge beyond reasonable doubt.

[3]

I would allow the appeal on the first ground, find
    it unnecessary to discuss the second, and would reject that third.

(1)

The Demeanour Evidence

[4]

Before executing the warrant at her residence,
    the police arrested the appellant at a shopping plaza a few minutes away. The
    police blocked her vehicle, identified themselves as police and arrested her.
    No drugs were found in her car or on her person.

[5]

At the outset of trial, the Crown sought to
    introduce demeanour evidence by having the police witnesses attest to how she
    behaved in their opinion. The trial judge stated flatly, Their opinion is not
    admissible. He ruled that the police can say she appeared nervous but nothing
    about their opinion about her demeanour.

[6]

During the trial, various police officers testified
    about the appellants demeanour at the time of her arrest as well as at the
    residence while the officers searched it.

[7]

Constable Griffin testified:

She was cooperative with us. As soon as I
    started to explain that we had a search warrant for the residence and for the
    car she became very nervous, very, her demeanour was just, I would, I would, I
    would call it upset.
She didnt say anything to us. She did not answer any
    questions.



She did answer to her name and during the
    search we had located identification for her. [Emphasis added.]

[8]

Constable Hart also testified she appeared
    nervous upon being arrested.

[9]

Constable Reynolds testified about the
    appellants demeanour when she was returned to the residence. He testified she
    appeared very nervous, very agitated in a very agitated state. Asked what
    made him say that, he responded, her demeanour to me appeared that
she wasnt
    answering questions put to her
 (emphasis added). Asked to describe her
    appearance, he answered:

The best way to describe it would be that she
    appeared to be like a deer caught in headlights.



I dont know how better to describe it than
    that; very staring, not blinking a lot, just very wild, like, you know, a very
    pronounced stare with respect to her eyes. Her demeanour was very nervous. To
    me she was not presenting. She appeared as such to the point where it was
    obvious based on her reaction to us being in the home and us there to execute a
    search warrant, that she appeared to be very concerned with respect to that.

[10]

In cross-examination, Constable Reynolds agreed
    he was not a trained psychologist. He disagreed with suggestions that the
    appellant may have been upset at seeing her son in handcuffs and hearing that
    drugs and bullets had been found in her sons room. He said:

Her demeanour was a deer caught in the
    headlights. The, from my understanding at that point, that the drugs that were
    located in [the sons] room werent of a significant quantity to warrant that
    reaction or her demeanour. But as you stated, it is possible that, you know,
    her son being under arrest, the drugs that had been found in the residence at
    that point, could have been a contributing factor to her demeanour. But I dont
    believe that that was the, the full scale of her, of her reaction

(2)

The Pre-Charge Conference

[11]

At the pre-charge conference, defence counsel raised
    the police testimony about the appellants demeanour. The trial judge indicated
    he would be telling the jury they should be extremely reluctant to rely on this
    evidence, and added:

I regret letting it in. Saying that she looks
    like a deer trapped in the headlight and then attempting to quantify what that
    meant when you put other perfectly reasonable scenarios to the officer, I
    shouldnt have let the evidence in. Its, in my thinking its akin to post-offence
    conduct and there are numerous other reasons that she might look like that. So,
    Ill be dealing with demeanour.

[12]

Defence counsel then asserted that Constable Canning
    had testified that the appellant had been uncooperative and that the jury might
    say well, she didnt cooperate with the police officer. Defence counsel was
    concerned that the jury might think there was an onus on her client to say
    anything to the police.

[13]

The trial judge said he did not have a note that
    Constable Canning said the appellant was uncooperative. Defence counsel
    insisted he had said at one point she was not cooperative. After the Crown
    stated that they did not have a note of Canning saying the appellant was not
    cooperative, the trial judge stated, Well, Im not going to say anything about
    that.

[14]

Defence counsel was mistaken in attributing the
    testimony to Constable Canning. It was Constable Griffin who had testified the
    appellant did not say anything to the police and would not answer any questions,
    and it was Constable Reynolds who said she was not answering questions put to
    her.

[15]

After the trial judge read to counsel what he
    proposed to say in his charge about the elements of the offence, including about
    the police testimony that the appellant looked like a deer caught in headlights,
    defence counsel said he had nothing further to say.

(3)

The Charge

[16]

As he had indicated at the pre-charge conference,
    the trial judge said to the jury:

Constable Reynolds testified that [the
    appellant] appeared to be very nervous and agitated and she looked like, a lot
    like a deer in the headlights. Now, in my view, this evidence does not really
    help you. There is no evidence that Constable Reynolds knew [the appellant], or
    what her demeanour is usually like, and there are several reasons why she might
    appear to be nervous and upset. The police were searching her home. She and her
    son were in handcuffs, and there was mention of drugs being found in her sons
    room.

[17]

The trial judge said nothing to the jury about
    the police testimony that the appellant had not answered the questions of the
    police (other than identifying herself).

[18]

The trial judges charge also contained the
    standard instructions:

My references to the evidence are only to help
    you remember it and to show how it relates to the issues in this case. If my
    memory of the evidence is different from yours, its yours that counts. You
    find the facts and base your decision on your memory of the evidence, not mine,
    nor that of counsel.

Now, our law also permits me to comment or
    express opinions about issues of fact. If I do that however, you do not have to
    reach the same conclusion. You, not I, determine what happened in this case.

(4)

Analysis

[19]

The trial judges instructions to the jury were
    deficient in two respects.

[20]

First, the charge left it open to the jury to
    rely on evidence that was not admissible. Before the police witnesses
    testified, the trial judge had ruled their opinions about the appellants
    demeanour inadmissible. At the end of the testimony, the trial judge
    acknowledged the police witnesses had gone beyond testifying about their
    observation of the appellants demeanour and had offered opinion evidence about
    the appellants demeanour. Telling the jury that he viewed the evidence as not
    helpful, while leaving the jury free to apply their own view of it, left open
    the prospect that the jury might rely on the evidence. The trial judge should
    have instructed the jury clearly and unambiguously to disregard the evidence.

[21]

Second, the charge lacked a clear instruction
    that the jury could not draw anything from the appellants post-detention
    silence, which was her constitutional right. While the trial judge and neither
    counsel had a clear recall of Constable Griffins testimony that the appellant
    didnt say anything to us. She didnt answer any questions, members of the
    jury may well have noted and remembered the testimony. The instructions should
    not have left open the prospect that the jury might use the evidence for an
    impermissible purpose by reasoning that if the drugs were not the appellants
    she would have answered their questions.

[22]

These deficiencies in the charge to the jury
    rendered the trial unfair and would necessitate a new trial.

(5)

Unreasonable verdict

[23]

I would reject the appellants submission the
    verdict is unreasonable. The evidence in this case, considered as a whole, was
    reasonably capable of supporting the verdict.

[24]

Cocaine worth $287,000, marijuana worth $70,000
    and additional drug paraphernalia, such as digital scales, were found in various
    places in the appellants bedroom. Her ODSP receipt, her lease for the
    premises, and her passport were also found in the bedroom. The lease indicated
    she was paying $1600 a month in rent while receiving $1912 in disability
    support according to the ODSP receipt. High-end watches were also found in her
    bedroom. She was in possession of three cell phones when arrested.

[25]

In my view a correctly instructed jury could have
    rejected the theory of the defence, that the appellants son placed the drugs
    and other items in various spots throughout his mothers bedroom during the
    brief period the police were attempting to gain entry to the premises, and
    could have concluded the appellant was guilty.

(6)

Conclusion

[26]

I would allow the appeal, quash the convictions,
    and remit the matter to the Superior Court of Justice for a new trial.

Released: May 20, 2021 RGJ

R.G. Juriansz J.A.

I agree. K. van Rensburg J.A.

I agree. Sossin J.A.


