



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Marin-Ariza, 2012
    ONCA 385

DATE: 20120607

DOCKET: C51989 and C51552

Goudge, MacPherson and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yovanny Marin-Ariza and Luis Sanin

Appellants

Brian Snell, for the appellant Yovanny Marin-Ariza

Frances Brennan, for the appellant Luis
    Sanin

Thomas Lemon and Peter M. Campbell, for the respondent

Heard: February 28, 2012

On appeal from the conviction entered on November 19,
    2009 by Justice T. David Little of the Superior Court of Justice, sitting with
    a jury.

Goudge J.A.:

INTRODUCTION

[1]

On August 23, 2006, the appellant Sanin was charged with importing
    heroin and conspiring with his co-appellant Marin-Ariza to import heroin.  The
    next day, Marin-Ariza was charged with the same offences.  On November 19,
    2009, both were convicted as charged by a judge and jury.  Marin-Ariza was
    sentenced to eight years imprisonment.  Sanin was sentenced to five years in
    prison.  Both men appeal their convictions.

[2]

The charges arose when a package containing heroin was delivered to the
    apartment of Carlos Cuadra.  Cuadra told a police officer that Marin-Ariza had
    arranged for the importation of this package, and had forced him to accept the
    package at his apartment.  Sanin came to his apartment shortly thereafter to
    pick up the package.  Cuadras evidence was central to the Crowns case.  Both
    accused testified and denied the allegations.  The credibility of these three
    witnesses was thus critical, and was the fundamental issue at trial.

[3]

The appellants argue that the charge to the jury was fatally flawed in a
    number of respects.

[4]

I have focused on three of these.  The appellants say that the charge
    gave the jury almost no guidance in deciding the central issue of credibility
    and indeed was in error in the little help that was provided.  They also argue
    that the trial judge erred in telling the jury that a juror holding a contrary
    view to the other 11 jurors should reconsider his or her position.  Finally
    they argue that the charge failed to assist the jury by separately identifying
    the evidence that could link each appellant to the alleged conspiracy.

[5]

For the reasons that follow, I agree with these submissions.  I conclude
    that the cumulative effect of the failings in the charge means that the
    appellants did not receive a fair trial. I would allow the appeal and direct a
    new trial.

THE FACTS

[6]

In August 2006, the police arranged for the controlled delivery of a
    package to Cuadras apartment.  It contained a disassembled bath spa, and a
    crudely forged receipt purporting to show the purchase of a bath spa from a
    Home Hardware in London, Ontario. The original receipt from which the forgery
    was derived had a phone number on it that had been Marin-Arizas home number
    two years earlier.  The package also contained three bags of heroin totally 433
    grams and shipping documents showing that the package had been sent from
    Venezuela addressed to Jimmy Galicia in London, Ontario.  Galacia lived in the
    apartment with Cuadra and his common-law wife.

[7]

On August 23, 2006, Cuadras wife was sitting outside the apartment
    talking to an acquaintance.  The acquaintance testified that Cuadras wife told
    her that she was waiting for a package containing cocaine or something from
    which to make cocaine.

[8]

A police officer posing as a delivery man arrived with the package. 
    Cuadras wife signed for it and took it to the apartment.  After Cuadra
    returned home, the police raided the apartment and arrested Cuadra for
    conspiring to import heroin.  Cuadra asked to speak to a police officer privately. 
    He told the officer that he and his wife were not involved, but that
    Marin-Ariza was responsible for shipping the package. He said Marin-Ariza told
    him the package was on its way and that he had no choice but to receive it.

[9]

Shortly thereafter, Sanin arrived at the apartment, explaining that he
    was there to provide a moving estimate.  Cuadra identified him as the pick-up
    guy.  He too was immediately arrested.

[10]

Cuadra
    and his wife gave statements to the police at the police station.  They were
    then released without being charged. Because the recording equipment
    malfunctioned, there was no record of their statements.  Marin-Ariza was
    arrested the next day.  Both appellants were then charged with these two
    offences.

[11]

At
    trial, Cuadras evidence was, as the trial judge said, the crux of the Crowns
    case.  He testified that on one occasion, he could not remember exactly when,
    he met both appellants at a Tim Hortons. Marin-Ariza said that he was
    trafficking drugs and asked if Cuadra knew anyone who could bring drugs across
    the border.  Cuadra said that Sanin was mostly agreeing, but did not say much
    on this occasion.  Cuadra also said that almost a year earlier, he agreed to
    allow Marin-Ariza to use Galacias name on packages although he did not tell Galacia.

[12]

Cuadra
    testified that the package that arrived on August 23, 2006, was the third that
    Marin-Ariza had sent to his address.  The first never arrived because
    Marin-Ariza arranged for someone to pick it up from the courier, although he
    later paid Cuadra $200.  The second package was picked up by Cuadra at
    Marin-Arizas request and when he gave it over to Marin-Ariza, the latter said
    that he had been ripped off because the package contained a book but no
    cocaine.  Cuadra testified that he told Marin-Ariza he did not want to be
    involved in drugs, but was told that a third package was already on its way.

[13]

The
    police testified that at the apartment Cuadras cell-phone rang at one point,
    and Cuadra said that it was probably Marin-Ariza. Cuadra answered and had a
    conversation partly in Spanish that the police could not understand. Shortly
    thereafter, Sanin knocked on the door and Cuadra told the police that it was
    Marin-Arizas pick-up guy.  In addition, there was evidence from telephone
    records of a number of calls in late July and early August 2006, between
    Marin-Ariza and Sanin, and between Marin-Ariza and Cuadra, but none between
    Sanin and Cuadra.

[14]

The
    appellants both testified in their own defence. They denied any involvement
    with drugs or the shipment of them, or meeting Cuadra at Tim Hortons. 
    Marin-Ariza said he knew Cuadra because he was a customer at the meat market
    where Cuadra worked, and they had also operated a sausage cart together for a
    short time.  He knew Sanin because their wives were friends.  Sanin testified
    that he worked for a moving company and took on extra moving jobs on his own
    time.  He said he had gone to the apartment at Marin-Arizas request to provide
    a moving estimate and had met Cuadra only once, at the sausage cart.

ANALYSIS

[15]

The
    appellants first argument focuses on the way the charge addressed
    credibility.  The Crowns case rested on the evidence of Cuadra.  The defence
    rested on the evidence of Marin-Ariza and Sanin.  The jurys central task was
    to assess the credibility of these witnesses.  In this case it was therefore
    important that the trial judge provide some guidance to the jury in addressing
    this issue.  In my opinion, the charge in this regard came up significantly
    short in several respects.

[16]

To
    begin with, the trial judge gave the jury almost no assistance in assessing the
    evidence of an individual witness.  In its totality, it was as follows:

The way to do it really, I think, is to talk about this
    witness.  Did you believe the witness? Yes. Why? No? Why? Work on it that way.

[17]

There
    was nothing, for example, about considering whether a witness has a reason not
    to tell the truth or about the limitations of demeanour, both of which could
    well have mattered in this case.  While appellate courts are reluctant to interfere
    with this aspect of a jury charge, in the circumstances here, this fell short.

[18]

Moreover,
    the guidance that was given was erroneous in one respect.  It told the jury
    that they could believe or disbelieve a witness.  Rather, it should have been
    made clear to the jury that they could believe all, some or none of any
    witness evidence.

[19]

Related
    to this was the trial judges failure to instruct the jury that the principle
    of reasonable doubt applies to the issue of credibility.  As Cory J. said, in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, in a case where credibility is important,
    as it was here, that instruction is essential.  He said this at p. 757:

In a case where credibility is important, the trial judge must
    instruct the jury that the rule of reasonable doubt applies to that
    issue.  The trial judge should instruct the jury that they need not firmly
    believe or disbelieve any witness or set of witnesses.

[20]

In
    addition, in the context of the evidence in this case, the instruction quoted
    above encouraged the jury to choose between the evidence of Cuadra and the
    evidence of the appellants.  Implicit in the instruction quoted above, is an
    invitation to the jury to accept the evidence of Cuadra or reject it, and vice
    versa for the evidence of the appellants.  A jury cannot approach its
    fact-finding task by choosing one version over the other.

[21]

This
    invitation to choose one version over the other was made explicit at later
    points in the charge where the trial judge said:

You have two conflicting stories. Who is telling the truth and
    who had time to think up the story?

[22]

Shortly
    thereafter, this instruction was repeated:

The issue you have is who do you believe in this case?

[23]

Yet
    another flaw in the charge relating to credibility occurred in the
Vetrovec
warning given concerning Cuadra.  The Crown does not contest the necessity of
    such a warning.

[24]

In
    my view, the warning fell short in two respects. In explaining to the jury why
    Cuadras evidence required special scrutiny, the trial judge simply said,
    Cuadra may well be involved in this.  On these facts that is an inadequately
    bland description of Cuadras strong motive to lie to the police to avoid his
    own prosecution.  Indeed, on any view of the evidence, Cuadra was involved. 
    The need for the
Vetrovec
warning was the concern over whether he was
    the one importing heroin rather than the appellants, and was lying to save his
    own skin.

[25]

In
    addition, the charge failed to properly explain the kind of evidence that the
    jury could look to in order to corroborate Cuadras evidence.  In the main
    charge, the trial judge incorrectly told the jury that they could look to
    evidence emanating from Cuadra and to all the supporting evidence. A recharge
    following counsels objection properly clarified that corroborating evidence
    could not come from Cuadra, but was confused about what could provide
    corroboration:

So when you are looking for other evidence, you have to think
    about the names on the receipts at the store and you would have to think about
    the phone call  I dont know what all you have to think about  but you would
    have to have that rather than saying that let us look at Cuadras evidence and
    then say is it supported by something else, not by something that emanates from
    him...

[26]

The
    reference to a phone call was confusing because it could have been taken to be
    the one received by Cuadra in the apartment, which was evidence that did
    emanate from Cuadra.  The reference to not knowing what all the jury has to
    think about as possible corroboration was confusing because it could have been
    taken to permit them to refer to any evidence as corroboration, which was incorrect.

[27]

In
    summary, credibility was the critical issue in this case.  The jurys
    fundamental task was to assess Cuadras evidence and that of the appellants. 
    The cumulative effect of the inadequacies I have described meant that the
    charge fell short of giving the jury the necessary guidance to perform this
    task.

[28]

The
    appellants second argument is that the trial judge erred in inviting a juror
    faced with 11 colleagues holding the contrary view to reconsider his or her
    position.

[29]

The
    error was described by this court in
R. v. Gabie (D.)
(1997), 98
    O.A.C. 75 and most recently in
R. v. Vivian
,

2012 ONCA 324.  In
Gabie (D.)
the trial
    judge said this in exhorting the jury:

If you happen to be in a minority, maybe the -- I don't want to
    know what size the minority is, large or small, but if you happen to be in a
    minority, would you be prepared to reconsider your positions in view of the
    expressed view of the majority?  It may be good sense in doing so, and the
    minority does not have to agree with the majority.  There's no question
    about that.

[30]

This
    court held at para. 9, that this constitutes a serious error:

The second exhortation contained the additional serious error
    of advising only the minority to reconsider their views.  In
R. v. G.
    (R.M.)
(1996), 110 C.C.C. (3d) 26 (S.C.C.) Cory J. explained that such
    instructions risk introducing irrelevant factors into the jurys deliberations
    and coercing some members of the jury to agree with the majority despite their
    own genuinely held doubts.

[31]

In
    this case, albeit in the charge itself rather than an exhortation, the trial
    judge fell into the same error given Cory J.s explanation in
R. v. G.
    (R.M.)
of the problem this kind of language creates.  I do not think that
    the damage is lessened when it occurs in the main charge rather than in an
    exhortation.  The language used in the charge in this case gives rise to this very
    problem. Indeed it implies that it is abnormal for a juror to maintain a
    genuinely held view in the face of contrary opinions:

However, on the other side of that is, if 11 normal guys think
    one way, and you think the other way, have a look in the mirror and see why it
    is, see if there has got to be some reason for it.

[32]

The
    appellants third argument addresses the way the trial judge dealt with the
    charge of conspiring to import heroin.

[33]

The
    trial judge had ruled that because of the wording of the indictment, the Crown
    had to prove that the appellants conspired with each other, so that if one
    appellant was acquitted of this charge, the other appellant must also be
    acquitted of the charge. The Crown did not contest this at trial or on appeal.

[34]

Against
    this backdrop, the appellants argue that the trial judge erred by failing to separately
    review for the jury the evidence linking each appellant to a conspiracy to
    import heroin.

[35]

I
    agree with this submission.  The strength of the evidence linking Sanin to a
    conspiracy was considerably weaker than that for Marin-Ariza.  It was limited
    to the phone records showing a number of calls between the appellants, Cuadras
    evidence of the meeting at Tim Hortons in which Sanin played almost no role,
    the phone call said to be from Marin-Ariza, and Sanins arrival thereafter with
    the backpack.

[36]

The
    evidence against Marin-Ariza was stronger. It included the same phone records,
    but also phone records of calls between Marin-Ariza and Cuadra.  Cuadras
    evidence also spoke to the greater involvement of Marin-Ariza, including
    particularly, his role at Tim Hortons and all his previous interactions with
    Cuadra.

[37]

Since
    the evidence linking one appellant to a conspiracy to import heroin was
    considerably weaker than that linking the other appellant, and since failure to
    prove one of these linkages beyond a reasonable doubt meant acquittal for both
    appellants, the trial judge should have separately reviewed the evidence against
    each appellant on this issue: see
R. v. Nadarajah
, 2009 ONCA 118, 242
    C.C.C. (3d) 215.

[38]

In
    summary therefore I conclude that in the three ways I have described, the
    charge fell short.  While each standing alone would not warrant setting aside
    the convictions, their cumulative effect was sufficient to conclude that the
    appellants did not receive a fair trial.

[39]

This
    was far from an overwhelming case for the Crown.  It is not one that warrants
    the application of the proviso. In the result I would set aside the convictions
    and order a new trial.

Released: June 7, 2012 (S.T.G.)

S.T. Goudge J.A.

I agree. J.C. MacPherson
    J.A.

I agree. R.G. Juriansz J.A.


