





CITATION:
R. v. Hewitt, 2011 ONCA 702



DATE: 20111114



DOCKET: C52964



COURT OF APPEAL FOR ONTARIO



Rosenberg, Rouleau and Karakatsanis JJ.A.



BETWEEN:



Her Majesty The Queen



Respondent



and



Jerry Hewitt



Appellant



Jerry J. Hewitt, in person



Paul Burstein, for the appellant

Vanita Goela, for the respondent



Heard: April 12, 2011



On appeal from the conviction entered by Justice Beverly A.
          Brown of the Ontario Court of Justice, dated August 16, 2010, with reasons
          given orally.



By The Court:



[1]

The appellant, Jerry Hewitt, with the assistance of duty counsel,
    appeals his conviction by Brown J. for possession of marijuana for the purpose
    of trafficking.  The appellant submits that the trial judge made an error in
    her assessment of the credibility of an important Crown witness who supported
    the defence, erred in her assessment of the credibility of the appellant, and
    misapprehended the import of certain expert evidence.  We agree with the
    appellant. The appeal is allowed, the conviction set aside, and a new trial
    ordered.

THE PROCEEDINGS

[2]

The appellant was charged with two offences: possession of marijuana for
    the purpose of trafficking and simple possession of MDMA.  The appellant
    pleaded not guilty to the marijuana charge and stood mute when arraigned on the
    MDMA charge. Consequently, the trial judge entered a plea of not guilty to the
    MDMA charge.

THE FACTS

[3]

On January 6, 2010, the appellant, an inmate of the Toronto Jail, was in
    the visitors area.  A correctional officer, Jodhi Alleyne, brought another
    inmate, Mr. Mumby, to the area.  Officer Alleyne did a cursory search of
    Mumby.  She testified that Mumby had a soft-ball-sized bulge in the groin area.
    She did not do anything about the bulge since she is not authorized to search
    male inmates in that area of the body. She also thought it might be a hernia,
    because she had seen a guy with a hernia before.

[4]

Officer Alleyne briefly left the area but asked other officers to keep
    an eye on Mumby and the appellant.  When she returned, she observed that Mumby
    was noticeably nervous.  He was standing near the appellant, and the officer
    detected a faint smell of marijuana in the area.  Mumby asked to be returned to
    his unit.  Officer Alleyne noticed that the bulge in Mumbys pants was gone.  She
    asked that the appellant, and two other prisoners who had been in the visitors
    area, be strip searched before being returned to their units.

[5]

Officer Alleyne testified that she brought the appellant and the other
    two inmates into the B Landing where they were separated into two of three
    interview rooms.  One inmate was placed alone in the first interview room and
    was searched by another officer, Kulwinder Jauha.  Meanwhile, according to
    officer Alleyne, the appellant and the other inmate were placed in the second
    interview room.  Officer Alleyne watched the appellant and the other inmate through
    a window in the door of the second interview room while officer Jauha conducted
    the first search in the first interview room.  She testified that she had a
    clear recollection of the location of the inmates on B Landing and who did
    what. However, she was not sure if the appellant and the other inmate were
    separated when they were strip searched.

[6]

The evidence of officer Jauha was different. He testified that he placed
    the three inmates in separate rooms and strip-searched each inmate individually
    in the room where they had been placed.  The appellant was the last to be
    searched.  Officer Jauha testified that after searching the appellant and
    finding nothing, he noticed that the appellant was constantly looking to the
    back of the room.  Officer Jauha went to the back of the room where he found a
    sock with black packages in it.  The appellant immediately said, Thats not
    mine. Officer Jauha placed him in handcuffs and took him to segregation.  The
    sock contained 171.71 grams of marijuana. Officer Jauha also testified that the
    interview rooms are regularly searched during the day after they are used.

[7]

The MDMA charge related to a search of the appellants segregation cell
    on January 11, 2010.  During the search, a correctional officer found a package
    with some drugs in it.  The package contained 10.88 grams of MDMA.

[8]

The appellant testified. He has a relatively lengthy criminal record. In
    examination-in-chief and in cross-examination he stated that when he is guilty
    of an offence he admits to the wrong-doing.  He put it this way initially:

More often than not I would plead to anything that
    Ive done wrong, whereas if Im not, if I havent beenif I dont feel Ive
    done anything wrong, which I havent, then Im more than willing to say its
    not me.

[9]

He testified that the MDMA, and a small amount of marijuana, found in
    the segregation cell was his.  He immediately admitted to senior officers in
    the institution that the drugs were his. He testified that he had been given
    the drugs by another inmate and he had secreted them in a body cavity. He explained
    why an inmate would give away drugs to him.  An inmate, who has some drugs,
    could be getting out of jail.  Since the inmate would have no further use for
    the drugs, he would give the drugs to the appellant because he had been in
    custody for some time.

[10]

The appellant denied that the sock found by officer Jauha was his.  He
    testified that after visiting with his family, he entered the elevator with
    three other inmates.  As they left the elevator, they were told that they were
    all going to be searched.

One inmate was searched somewhere on B landing while the
    appellant, and the other two inmates, were placed in one of the interview
    rooms. The appellant smelled marijuana as soon as he entered the interview
    room. The other two inmates were removed from the interview room one at a time
    and, presumably, searched. Officer Jauha then came into the interview room and
    strip-searched the appellant in the same room. He did not find anything on the
    appellant. He then left the interview room while the appellant dressed. When
    the officer returned to the room, he put on a pair of gloves and picked
    something up.  A few minutes later, officer Jauha returned to the interview
    room with a senior officer and questioned the appellant about what he had
    found.  It was at this time that the appellant said, Thats not mine.

[11]

The defence conceded that if the appellant was found to have been in
    possession of the marijuana found by officer Jauha, the full charge of
    possession for the purpose of trafficking was made out. In spite of this, Crown
    counsel called Officer Canepa of the Toronto Drug Squad to give opinion
    evidence. Officer Canepa had extensive experience with drug investigations and
    the value of drugs on the street.  He had limited experience with drug
    investigations in jails and had only testified twice in relation to
    prosecutions arising out of drugs found in the jail.  That said, the defence
    conceded that he was an expert in the use, distribution, and value relating to
    marijuana in jails, in terms of trafficking and possession. He testified that
    while the street value of 171.71 grams of marijuana was about $3,400, in the
    jail context the resale value was between $25,000 and $34,000. The disparity exists
    because of the more limited access to drugs in the jail; it is much harder, and
    much more dangerous, to get drugs into the jail. Given the value of the
    marijuana, and that such a large quantity could not be stored and kept fresh in
    the jail setting for any period of time, it was Officer Canepas opinion that
    the marijuana was possessed for the purpose of trafficking.  Officer Canepa was
    not asked the value of the MDMA found in the appellants segregation cell.

THE TRIAL JUDGES REASONS

[12]

The trial judge held that where the evidence of officers Jauha and
    Alleyne differed, she accepted the evidence of the former. She stated that she
    was not impressed with officer Alleyne.  The first reason she gave for
    rejecting officer Alleynes evidence was that although her notes had been
    qualified in the course of her examination she did not refer to them to refresh
    her memory. The trial judge said:

She indicated she had provided notes and her notes
    were qualified in the course of her examination to permit her to refresh her
    memory and strangely enough, even though many months had passed since the
    incident, the Court specifically made note of the fact that she did not refer
    to her notes even once during examination in chief after having been provided
    the opportunity to do so.

[13]

The trial judge was also concerned that even though officer Alleyne had
    noticed the bulge in Mumbys pants, she did not ask that he be searched. She
    considered her statement that Mumby might have had a hernia to be unbelievable.
    The trial judge noted that officer Alleyne was relatively inexperienced, and that
    she conceded she did not pay attention to the manner in which the strip
    searches were conducted.  Officer Alleyne did not even know whether two inmates
    had been strip-searched together, which would have been shocking.  The trial
    judge found officer Alleynes evidence that the inmates were kept in the same
    room unreliable; it did not make sense. Her manner of giving evidence was
    somewhat flighty.

[14]

In contrast, officer Jauha was an experienced correctional officer who
    gave evidence in a professional manner.  The trial judge accepted his evidence
    that the inmates were kept in separate rooms before being searched, and she accepted
    his version of events rather than the version given by officer Alleyne and the
    appellant.

[15]

The trial judge did not find the appellant to be a credible witness.  She
    relied upon several factors. The first factor she mentioned was his criminal
    record that included offences of dishonesty. The trial judge then noted that
    the appellant testified that if he makes mistakes he never wastes the Courts
    time to fight something, that he does not drag out things.  In this case,
    however, the appellant had not pleaded guilty to the charge of possession of
    MDMA.  She said the following:

In this case, the court notes that when arraigned
    in relation to the January 11
th
charge he did not enter a plea and
    his lawyer invited the court to enter a not guilty plea.  Upon testifying he
    admitted from the outset of his testimony that he did possess the MDMA, ecstasy
    that was the subject of the January 11
th
charge.
The Court does
    not consider his failure to enter a guilty pea against him, but rather
    considers it in the context of his testimony with respect to what he does when
    he is guilty of something and he has made a mistake.
[Emphasis added.]

[16]

The trial judge then went on to consider the appellants explanation as
    to how he received the MDMA. She did not believe this explanation:

The Court accepts the testimony of Detective Canepa
    which was not challenged, that drugs in the jail context are valuable and are
    expensive to acquire.  The Court finds Mr. Hewitts testimony, that he was
    given drugs on multiple occasions for free, is incredulous in creating a strong
    question as to his credibility as a witness.

[17]

The trial judge was also concerned about the appellants reply when
    defence counsel put to him the Crown theory that inmate Mumby had passed him the
    marijuana. Rather than simply denying the allegation, the appellant suggested
    that the officers should have searched him first: arguably an answer that had
    very little to do with the question.

[18]

In all, the trial judge accepted the Crown theory that Mumby had passed
    the marijuana to the appellant. The appellant brought the package with him when
    he was placed alone, in the interview room. Officer Jauhas suspicions were
    aroused because the appellant kept looking at a corner of the room. As the
    officer approached the package, the appellant said it was not his, which was
    evidence of consciousness of guilt.

ANALYSIS

Rejection of Officer Alleynes Evidence

[19]

Officer Alleynes testimony, that two of the inmates were kept together
    in the same interview room before being strip searched, was important evidence
    for the defence. That testimony provided an explanation, inconsistent with the
    appellants guilt, for why officer Jauha later found the package in the room.
    As we have noted, the trial judges first reason for rejecting this evidence
    was that officer Alleyne did not refer to her notes, although she was given an
    opportunity to do so. In our view, the trial judge misapprehended the record. Admittedly
    the issue of officer Alleynes notes was somewhat confusing. When the officer
    was asked, at the beginning of her testimony, whether she would like to refer
    to her notes, she said yes. However, the trial judge immediately interjected
    and suggested that Crown counsel was leading the witness and should reserve
    questioning about the notes until an issue arose. There was some discussion
    between the trial judge and counsel about the notes, but in the result, Crown
    counsel never finished qualifying officer Alleynes notes.

[20]

On this record, the trial judges own interjection meant that it was
    never clear that officer Alleyne was entitled to use her notes. Thus, her
    failure to do so could not be used to undermine her credibility. We also note,
    as pointed out by duty counsel, that the issue of whether the officer reviewed
    her notes before testifying was never examined. Crown counsel did not, either
    in examination-in-chief or in re-examination, challenge officer Allenye as to
    whether her memory was faulty because she did not refer to her notes.

Use of the Appellants Failure to Plead Guilty

[21]

The trial judge found that the appellants decision not to plead guilty
    to the MDMA charge affected his credibility. The appellant opened up this issue
    by testifying that when he is guilty of something he admits it. It was
    certainly open to Crown counsel to challenge the appellant on this assertion,
    and, in particular, to draw his attention to the fact that he stood mute when
    asked to plead to the MDMA charge. However, Crown counsel never questioned the
    appellant about his decision to stand mute rather than plead guilty to the MDMA
    charge. Thus, the appellants assertion that he had immediately admitted his
    liability to senior officers in the jail stood unchallenged and there was no
    explanation for why the appellant stood mute.

Improper Use of the Expert Testimony

[22]

The trial judge rejected the
    appellants explanation that he received the MDMA as a gift. In doing so, she
    relied upon officer Canepas evidence as to the value of drugs in the jail.
    However, officer Canepa gave no evidence as to the value of the drugs found in
    the appellants segregation cell. His evidence only covered the value of the large
    quantity of marijuana found in the interview room. He also provided no opinion
    as to the reliability of the appellants explanation about receiving drugs for
    free in the jail setting. Crown counsel did not seek to call Officer Canepa in
    reply to dispute the appellants explanation.

Conclusion

[23]

Standing on their own, none of the
    errors committed by the trial judge would be sufficient to overturn this
    verdict. There were no doubt good reasons to reject the evidence of both officer
    Alleyne and the appellant. Further, as Crown counsel fairly points out, the
    trial judge could have arrived at some of her conclusions simply by application
    of common sense. However, this was a case that turned on credibility and several
    of the important reasons the trial judge gave for rejecting the exculpatory
    evidence of officer Alleyne and the appellant do not withstand scrutiny. On
    this record, we cannot be satisfied that the verdict was a safe one.

DISPOSITION

[24]

Accordingly, the appeal is allowed, the conviction for possession of
    marijuana for the purpose of trafficking is set aside and a new trial ordered.

[25]

We wish to express our appreciation to both counsel. Following oral
    argument of this inmate appeal, Crown counsel obtained the entire transcript of
    evidence and both Ms. Goela and Mr. Burstein provided very helpful written
    argument.

Signed:           Marc Rosenberg J.A.


Paul
    Rouleau J.A.

Karakatsanis
    J.A.

RELEASED:  MR November 14, 2011


