



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stevens, 2016 ONCA 292

DATE: 20160422

DOCKET: C58578

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Junior Stevens

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Robert Morin, for the respondent

Heard: April 20, 2016

On appeal from the conviction entered on December 13,
    2013 by Justice L. Ricchetti of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant appeals his conviction on a charge of importing 933 grams
    of cocaine. He also brings a motion to adduce fresh evidence on the appeal.

[2]

The only issue at trial was whether the Crown had proven beyond a
    reasonable doubt that the appellant knew of the existence of the cocaine found
    in his suitcase during a customs inspection at Pearson Airport.

[3]

The cocaine was secreted in the lining of a binder containing music CDs.
    Customs Officer Serengelyi (the Customs Officer) testified that the binder
    had attracted his interest due to its weight, the thickness of its covers and his
    observation that the seams of the covers had been re-glued.

[4]

The appellant denied knowledge of the drugs. He claimed the binder had
    been given to him by a friend in Jamaica for delivery to a third party in
    Canada.

[5]

The appeal centres on a statement allegedly made by the appellant to the
    Customs Officer. The Customs Officer testified that after admitting that he
    owned and had packed his suitcase, and while he was inspecting the binder, the
    appellant volunteered that he had purchased the binder used in Jamaica (the
    impugned statement).

[6]

The appellant denied making the impugned statement.

[7]

Neither party had anticipated the impugned
    statement as there was no reference to it, either in the Customs Officers
    notes or in his evidence at the preliminary inquiry. At the preliminary, the Customs
    Officer indicated that without looking at his notes, he could not recall any of
    the conversations he had with the appellant. At trial, the Customs Officer
    explained that he did not routinely take notes when he was examining baggage
    and he did not make a note of the appellants statement because he did not
    consider it important at the time. He did not say anything about the statement
    at the preliminary hearing because he was not asked about it.

[8]

The trial judge admitted the statement in evidence before the jury,
    without conducting a
voir dire
.

[9]

The appellant raises three interconnected grounds of appeal. He submits
    that the trial judge erred:

(a) in
    admitting the statement without a
voir dire
;

(b) in
    refusing the defence application for a mistrial based on the prejudice caused
    by the unanticipated evidence in the statement; and

(c) in failing
    to instruct the jury that the officers omission of the statement in his notes
    went to its ultimate reliability.

[10]

We do not accept these submissions.

(a)

The admission of the impugned statement
    without a
voir dire

[11]

At the outset of the trial, before the Crown opened its case, the defence
    waived the need to establish the voluntariness of pre-arrest statements made by
    the appellant to two customs officers. The appellant argues that this waiver of
    a
voir dire
was not informed, because he was not aware of the Customs
    Officers evidence about the impugned statement. He points to
R. v. Hodgson
,
    [1998] 2 S.C.R. 449, at para. 41, as authority for the duty of the trial judge
    to ensure that a statement is voluntary notwithstanding counsels failure to
    raise the issue.

[12]

Hodgson
itself makes it clear that the trial judge does not
    commit reversible error unless clear evidence existed in the record which
    objectively should have alerted him to the need for a
voir dire
notwithstanding counsel's silence. Voluntariness is concerned with the
    circumstances in which a statement is made. The impugned statement did not
    affect or change the circumstances in which the pre-arrest statements were
    made. The voluntariness of the pre-arrest statements having been admitted, the
    trial judge made no reversible error in not holding a v
oir dire
in
    relation to the impugned statement. See
Park v. R.
, [1981] 2 SCR 64 at
    para. 15.

(b)

The denial of the mistrial
    application

[13]

The trial judges denial of the mistrial application was a discretionary
    decision. We cannot interfere unless the decision was clearly wrong or based on
    an erroneous principle. See
R. v. Chiassen
, 2009 ONCA 789, at para.
    14.

[14]

We make no such finding. In dismissing the mistrial application, the
    trial judge reasonably concluded that any potential prejudice arising from the Customs
    Officers evidence could be addressed through cross-examination.

[15]

We reject the appellants application to admit as fresh evidence on this
    ground of appeal portions of the transcript of the Customs Officers evidence
    at the preliminary hearing that were not put to either the witness or to the
    trial judge on the mistrial application. The transcript was obviously available
    at trial and other portions of the transcript were put to the Customs Officer
    in cross-examination. The evidence fails the
Palmer
test. It was
    available at trial and could have been adduced with due diligence. It was
    irrelevant, because it was essentially consistent with the Customs Officers
    evidence at trial. And finally, it could not reasonably have affected the
    result.

[16]

On cross-examination at trial, the Customs Officer admitted that his
    memory was not good and that the appellant may have said that he got it [the
    binder] used. We agree with the respondent that by the end of the trial the
    evidentiary value of the statement had been weakened.

[17]

In our view, the appellants ability to make full answer and defence was
    not impaired by the admission of the impugned statement.

(c)

The charge

[18]

The trial judges charge was provided to counsel in advance. The trial
    judge modified it to take into account suggestions made by defence counsel.
    There was no request by the defence for a special instruction in relation to
    the impugned statement. There was ultimately no objection to the charge as delivered.
    The trial judge summarized the evidence of the appellant and the Customs Officer
    and set out the positions of the Crown and defence concerning the Customs
    Officers evidence. He pointed out that the defence position was that the
    statement should not be relied upon because it was not in the Customs Officers
    notes and had not been mentioned at the preliminary inquiry. He instructed the
    jury that a prior inconsistent statement could be a factor in assessing the
    credibility of a witness. In our view, the appellant has demonstrated no error
    in the charge.

[19]

For these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

E.E.
    Gillese J.A.

G. Pardu
    J.A.


