



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rhooms, 2016 ONCA 738

DATE: 20161006

DOCKET: C59011

Laskin, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marlon Rhooms

Appellant

B. Vandebeek and Mark C. Halfyard, for the appellant

James Clark, for the respondent

Heard and released orally: September 28, 2016

On appeal from the conviction entered on March 28, 2013
    and the sentence imposed on June 30, 2014 by Justice McWatt of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for possession of cocaine for the purpose
    of trafficking. He makes three submissions in support of his appeal:

(1)

The trial judge erred in refusing to grant a mistrial because the
    Crowns expert was asked and answered a question disapproved of by the Supreme
    Court of Canada in
R. v. Sekhon
, 2014 SCC 15;

(2)

The trial judge erred in admitting Dr. Bosmans evidence that the
    appellant had given a statement to the effect I have done this before and
    nothing happened; and

(3)

The trial judge erred in refusing to grant an adjournment so that the
    defence could  call an expert on cocaine toxicity.

[2]

We do not accept the appellants submissions. Generally, all three submissions
    challenge discretionary rulings of the trial judge. A trial judges exercise of
    discretion is, of course, entitled to deference in this court, and we have not
    been persuaded she exercised her discretion unreasonably.

[3]

On the appellants first submission, the trial judge agreed, in the
    light of
Sekhon
, that the question have you come across this method
    of coercion and the answer no were improper. However, following the suggestion
    of Moldaver J. at para. 48 in
Sekhon
, she chose to give the jury a
    remedial instruction, an instruction she gave twice. The appellant contends
    that the context for the improper question and answer in this case were
    sufficiently different from the context in
Sekhon
, that a mistrial was
    warranted in this case. We do not agree that any differences in context
    justified ordering the drastic remedy of a mistrial. The trial judges choice
    of remedy  a direct instruction to the jury not to consider the evidence  was
    sufficient.

[4]

On the appellants second submission, we agree with the trial judge that
    the appellants statement as related by Dr. Bosman was admissible. The context
    for the statement was obvious. The appellant was in the hospital and was
    responding to the question why he had swallowed the cocaine. His answer was highly
    probative because it explained why he had acted the way he did in swallowing
    the cocaine, and it went directly to the issue of voluntariness, the core of
    the excuse of duress, which was a central issue in this case. Thus any
    prejudice flowing from the admission of the appellants statement was
    outweighed by its probative value. Finally, on this issue, no remedial
    instruction was sought, and no objection was made to its absence in the charge.
    Indeed, in the context of the appellants duress claim, no remedial instruction
    was required.

[5]

On the appellants third submission, we are not persuaded that the trial
    judges refusal to grant an adjournment was unreasonable. It was open to the
    trial judge to conclude that the appellant ought reasonably to have foreseen
    the need for an expert if he really wanted to call one. The trial judge was
    justified in proceeding with the trial.

[6]

Accordingly, the appeal from conviction is dismissed. The appellant did
    not pursue his sentence appeal, and that appeal is dismissed as abandoned.

John Laskin J.A.

Eileen E. Gillese J.A.

David Watt J.A.


