



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2021 ONCA 59

DATE: 20210201

DOCKET: C67318

Rouleau, van Rensburg and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angella Lewis

Appellant

Angella Lewis, acting in person

Michael Dineen, appearing as duty
    counsel

Sandy Thomas, for the respondent

Heard: January 12, 2021 by
    video conference

On appeal from the conviction entered by
    Justice Ivan S. Bloom of the Superior Court of Justice, sitting with a jury, on
    February 28, 2019 and from the sentence imposed on July 31, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of importing
    cocaine, contrary to s. 6(1) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. Through duty counsel, she appealed on the basis that the
    trial judge ought to have discharged two jurors (in addition to one juror who
    was discharged) and declared a mistrial. The appellant also argued two grounds
    of appeal on her own behalf: that her right to trial within a reasonable time guaranteed
    by s. 11(b) of the
Charter
was infringed; and that her right to make
    full answer and defence was compromised by the loss of airport surveillance
    video.

[2]

For the reasons that follow, the conviction appeal
    is dismissed. The sentence appeal was not argued and is dismissed as abandoned.

ANALYSIS

Application for a mistrial

[3]

In the trial judges charge to the jury, he
    instructed the jurors that they were to take their instruction on the law from him,
    and not to consult other sources. However, it was later discovered that one of
    the jurors (Juror #4) brought into the jury room two articles the juror had
    found on the internet. One article addressed how to select a jury foreperson, and
    the other addressed the meaning of reasonable doubt. When this was brought to
    the trial judges attention  prior to the jury having given its verdict  the
    trial judge conducted an inquiry beginning with Juror #4 and questioning each
    juror in turn. Juror #4 told the trial judge that he had brought the two
    articles into the jury room, that each of the jurors had read the article about
    foreperson selection, and that two of them had also looked at the article on
    reasonable doubt. The trial judge then asked the other jurors in succession
    whether they had been shown an article on reasonable doubt, whether they had looked
    at any other material regarding the law or evidence in this case, and whether
    they were able to follow the trial judges instructions regarding the law. Most
    of the jurors advised that they had not looked at any extraneous material
    regarding law, which arguably conflicted with Juror #4s statement that all of
    the jurors had read the foreperson selection article. The trial judge then
    reopened the inquiry to specifically ask those jurors why they had not
    mentioned the foreperson selection article. Most of the jurors advised that
    they had not seen the foreperson selection article. Those who acknowledged having
    read the article explained why they did not mention it in response to the trial
    judges question. One had forgotten having read it. Another did not consider it
    to be an article regarding law.

[4]

On the application for a mistrial, the trial
    judge concluded that Juror #4 had demonstrated an unwillingness to be guided by
    the trial judges instructions, and he therefore discharged that juror, with the
    agreement of the Crown. But the trial judge did not declare a mistrial, having
    been satisfied from the inquiry that the remaining jurors would faithfully
    discharge their duties.

[5]

The trial judge made no error in dismissing the
    application for a declaration of mistrial. The trial judge conducted an
    appropriate inquiry and reached a reasonable conclusion about the fitness of
    the remaining jurors and the fairness of the trial. As the trial judge noted,
    the application for the declaration of mistrial was not made on the basis of
    the content of the materials viewed, which did not relate to the factual issues
    before the jury. The application was based on the initial non-disclosure by two
    jurors that they had seen the article about foreperson selection, and whether
    that non-disclosure negated the presumption that the jurors would perform their
    duties and follow the instructions they had been given.

[6]

The trial judge made no error in concluding that
    the presumption was not rebutted, given his satisfaction with the explanations
    given by the jurors for non-disclosure. The assessment was the trial judges to
    make, and he made it reasonably. The trial judge made no error in concluding
    that a mistrial was not necessary, and that any potential for trial unfairness
    could be remedied with an appropriate direction to the jury. There was no challenge
    at trial to the sufficiency of the trial judges instruction in this regard
    (indeed the trial judge sought and obtained input from both Crown and defence
    counsel on the precise wording). We find that the instruction was sufficient
    and there was no resulting trial unfairness.

Section 11(b) application

[7]

The appellant brought a s. 11(b) application pre-trial,
    but she could not perfect it as she was unable to secure funding for
    transcripts. She was denied legal aid for this particular disbursement, and the
    trial judge was not prepared to order the preparation of transcripts in the
    absence of a formal application for funding. That application was never
    brought, and the s. 11(b) application relating to pre-conviction delay was
    never heard.

[8]

On appeal, although the appellant seeks to renew
    the s. 11(b) application in its entirety, the emphasis is now on the
    post-conviction, pre-sentencing delay.

[9]

With respect to delay pre-conviction, the
    argument cannot succeed. The fact remains that there is much in dispute, there
    are no transcripts, and there is therefore no evidential foundation on which the
    claim could be advanced. However, things stand on a different footing with
    respect to the period of delay between conviction and sentencing, for which
    there are sufficient transcripts and no real factual dispute about what
    transpired. Conviction was entered on February 28, 2019, and reasons for
    sentence were delivered on July 31, 2019. Shortly thereafter, this court
    decided
R. v. Charley
, 2019 ONCA 726, 147 O.R. (3d) 497, which
    established a five-month presumptive ceiling for delay between verdict and
    sentencing, after which the delay is presumed to be unreasonable and must be
    justified by the Crown.

[10]

It is agreed that the total delay is five months
    and three days, largely the result of scheduling of the
Gardiner
hearing, which had to be adjourned due to the unavailability of witnesses. The
Gardiner
hearing was scheduled to be heard March 27-29, 2019, was adjourned to April
    23-25, and the ruling was given on June 10. Sentencing submissions commenced
    immediately thereafter and the sentence was imposed on July 31.

[11]

The question that arises is whether the
Gardiner
hearing constitutes an exceptional circumstance under the
Jordan
framework, such that it should be deducted from the delay. The appellant argues
    that it should not, because the
Gardiner
hearing was necessitated by a
    tactical decision of the Crown at trial to invite the jury to return a verdict
    of guilty if it found the appellant had imported one cannister containing
    cocaine. The defence pointed to evidence suggesting that cannisters carried by
    another passenger had been mixed up with the appellants articles.  At trial, the
    Crown sought to ground the conviction in the importation of one particular cannister
    that stood on a different evidential footing. The jury convicted the appellant,
    but this necessitated a
Gardiner
hearing to determine the quantity of cocaine
    imported for the purposes of crafting a fit sentence. The appellant argues that
    the resulting delay should be attributed to the Crown in the
Jordan
analysis,
    and not be considered an exceptional circumstance.

[12]

We do not agree. A case in which a
Gardiner
hearing becomes necessary is not the routine sentencing framework contemplated
    by this court in
Charley
when the presumptive ceiling of five months
    was set. Without the benefit of full argument on the issue, we do not purport
    to resolve the question of whether a
Gardiner
hearing is best
    characterized as a discrete event, a matter of complexity, or some other
    category of exceptional circumstance. It is sufficient to note that the
Gardiner
hearing was an exceptional circumstance.

[13]

We find that the delay of five months, three
    days, after the necessity of the
Gardiner
hearing is taken into
    account, reduces the net delay to well under the five-month ceiling, and does
    not constitute unreasonable delay. That disposes of the s. 11(b) argument.

Lost surveillance video

[14]

With respect to the lost evidence argument, the
    appellant argues that she was unable to make full answer and defence because of
    the absence of security video from the secondary inspection area. The appellant
    argues that the video, had it been available, could have supported her argument
    that the four cannisters of cocaine said to have come from her luggage actually
    came from another passenger and were attributed to her through error.

[15]

Canada Border Services Agency officers testified
    at trial that the area for secondary inspection was video recorded, though
    neither of them had seen or requested the video from that day and did not know whether
    it existed at the time of trial. An agreed statement of facts filed in evidence
    at the trial attests that although the CBSA records video of passengers passing
    through the Toronto Pearson Airport, no video is available for the date of the
    appellants passage through the airport on May 29, 2015, because the video
    recording system suffered a large computer system failure, and that the lost
    video records would not have included any audio.

[16]

In the instructions to the jury, the trial judge
    noted the evidence addressing the absence of the video and the defence theory
    of prejudice. On the instruction given, the jury was able to understand the
    defence position that the Crown had not proved the charges beyond a reasonable
    doubt, given the absence of a video recording in circumstances where a video
    recording is routinely made but a system wide computer system failure had
    occurred, as well as the evidence relevant to that position. The impact of the
    lost video on the appellants right to make full answer and defence was not
    argued at trial; nor was there any objection to the jury instructions on this
    issue. No more was required. The jury instruction was sufficient and fair.

DISPOSITION

[17]

The appeal is dismissed.

Paul Rouleau J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


