



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Curtis, 2016 ONCA 685

DATE: 20160916

DOCKET: C62219

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Krista Curtis

Appellant

Paul Calarco, for the appellant

Jeremy Streeter, for the respondent

Heard: September 12, 2016

On appeal from the conviction entered on October 26, 2015
    and the sentence imposed on April 19, 2016 by Justice Nathalie Gregson of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant appeals her conviction for possession of fentanyl for the
    purpose of trafficking and failing to comply with a recognizance by having a
    cell phone.

[2]

The appellant was arrested about three and a half hours after being
    observed meeting with a known drug user and exchanging a small item for cash.
    Upon her arrest, the appellant was found in possession of four fentanyl
    patches. Although the appellant had a prescription for fentanyl, the patches
    were not found in her purse where two bottles of prescription medication were
    located, but rather in a plastic baggy hidden in the folds of her stomach skin.

[3]

The police also found a cell phone in the appellants purse. This was in
    breach of her bail terms as the phone had to have been registered with the
    police within 48 hours of it being acquired and it was not.

[4]

The appellant advances three grounds of appeal.

[5]

First, she argues that the trial judge erred in relying on hearsay from
    an informant as proof of the substantive elements of the drug offense.

[6]

The Crown agrees that the trial judge erred in relying on the
    information received from an informant but argues that, quite apart from the
    hearsay, the evidence in support of the conviction was overwhelming. The Crown
    maintains that this is an appropriate case to apply the curative proviso under
    s. 686(1)(b)(iii) of the
Criminal Code
. We agree.

[7]

In our view, even without the trial judges reference and apparent
    reliance in his reasons on hearsay from an informant to the effect that the
    appellant may have had involvement with illegal drugs, there is no reasonable
    possibility that the verdict would have been different.

[8]

In
R. v. Bevan
, [1993] 2 S.C.R. 599, at p. 617, the Supreme
    Court of Canada asserted that the curative proviso can only be applied where
    there is no reasonable possibility that the verdict would have been different
    had the error at issue not been made. In
R. v. Sekhon
, 2014 SCC 15, [2014]
    1 S.C.R. 272, at para. 56, Moldaver J. reminded appellate courts that, when considering
    the application of the proviso in a circumstantial case:

it is necessary to look at the whole of the admissible evidence
    in assessing the strength of the case. It is not the task of an appellate court
    to parse each item of evidence in search of a possible innocent explanation. If
    that were so, it would be virtually impossible to ever satisfy the second
    branch of the proviso in a circumstantial case.

[9]

Aside from the impugned evidence, the trial judge relied on the observed
    hand-to-hand transaction by the appellant with a known drug user carried out in
    a gravel parking lot some three and a half hours prior to her arrest and noted
    that when she was arrested she had a cell phone and cash in her purse and a
    second cell phone was found in the back seat of the vehicle. More importantly,
    the trial judge relied on where and how the drugs were found.

[10]

If the appellant had been holding the drugs for a valid purpose, she
    would not normally have become nervous when the officer conducting a body
    search asked her to lift up her stomach skin. It is only upon her having lifted
    her stomach skin that the drugs contained in a baggy were revealed. It simply
    defies logic and common sense that someone with a valid prescription for
    fentanyl who is holding it for personal use and not to traffic would choose to
    hide it in this manner. It is also incongruous given that she kept two
    prescription bottles of medication in her purse.

[11]

The second and third grounds of appeal relate to the conviction for
    failure to comply with a recognizance. The appellant submits that the trial judge
    erred in permitting the Crown to lead evidence of a statement made by the
    appellant regarding her cell phone without a
voir dire
to establish
    the voluntariness of that statement and in failing to consider exculpatory
    evidence contained in that statement.

[12]

We do not give effect to these grounds of appeal. We agree that, in the
    absence of any attempt at establishing the voluntariness of the statement, the appellants
    statement should not have been entered into evidence. That error, however, is
    harmless as the trial judge did not rely on it in convicting the appellant.

[13]

The failure to comply conviction rested on the examination of the cell
    phone, which examination revealed that a text message had been sent to the
    appellant two weeks prior to her arrest, and on the evidence of Detective
    Sherriff to the effect that the police had no record of the cell phone having
    been registered.

[14]

As for the exculpatory evidence relied on by the appellant, it consists
    of a statement by her that she had only had the cell phone for two days and had
    not had time to register it. That statement was proven wrong by the objective
    evidence of the cell phone examination and was properly rejected by the trial
    judge.

[15]

In conclusion, we consider the errors to have been harmless and that this
    is an appropriate case to apply the curative proviso. The appeal is therefore
    dismissed.

Eileen E. Gillese J.A.

Paul Rouleau J.A.

David Brown J.A.


