



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sargeant, 2017 ONCA 725

DATE: 20170925

DOCKET: C58505

Gillese, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Philip Wezley Sargeant

Respondent

David Littlefield and Holly Akin, for the appellant

Carlos F. Rippell and Diana M. Lumba, for the respondent

Heard: April 3, 2017

On appeal from the acquittal entered on February 21, 2014,
    by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a
    jury.

Gillese J.A.:

OVERVIEW

[1]

This appeal was heard with the companion appeal,
R. v. Gopie
,
    2017 ONCA 728.

[2]

Philip Wezley Sargeant and his co-accused, Albert Samuel Gopie, were jointly
    tried on one count of conspiracy to import a narcotic and one count of importing
    a controlled substance (cocaine). The jury convicted Gopie of the conspiracy
    count and acquitted Sargeant of both counts. Gopie was sentenced to 9 years in
    prison.

[3]

The companion appeal is Gopies appeal against conviction and sentence.

[4]

This is the Crowns appeal of Sargeants acquittal. The Crown raises two
    issues on appeal. First, it submits that the trial judge wrongly excluded
    evidence tying Sargeant to the conspiracy. Second, it submits that the trial
    judge erred by imposing a reasonable doubt standard at step two of the
Carter
[1]
test.

[5]

Sargeant submits that the trial judge did not make the alleged errors
    and, even if such errors were made, they could not have affected the verdict. 
    Accordingly, he asks that the appeal be dismissed. Alternatively, if this court
    is inclined to allow the Crown appeal and order a new trial, Sargeant asks that
    the proceedings be stayed based on the s. 11(b)
Charter

application
    (the Application) that he and Gopie brought before trial.  Like Gopie, Sargeant
    says that the Application was wrongly decided.

[6]

For the reasons that follow, I would dismiss the Crown appeal against
    acquittal. In the companion appeal, I explain why, in my view, the application
    judge did not err in dismissing the Application.

BACKGROUND

[7]

The factual background is set out in the
Gopie
judgment and will
    not be repeated here. It is sufficient to note that the charges related to 7.85
    kilograms of cocaine that were found in Tara Frasers luggage when she returned
    to Montreal after a one-week stay in St. Maarten. Fraser was one of two drug
    couriers involved in the conspiracy. The other alleged drug courier was Melissa
    Gittens. Although Fraser and Gittens did not meet until the end of the week in
    St. Maarten, they each took the same flights to and from St. Maarten.

[8]

To the extent that additional facts are required to dispose of the
    issues raised on this appeal, they are set out in the analysis of those issues.

WAS RELEVANT EVIDENCE WRONGLY EXCLUDED?

[9]

The Crown submits that the trial judge wrongly excluded evidence: (1) of
    Randy Datta, the travel agent who sold the return tickets for Frasers and
    Gittens flights to St. Maarten; (2) of a statement that Gittens made to Fraser
    on the return flight from St. Maarten; and (3) about the name Rasta, Sargeants
    purported nickname.

(1)

The Travel Agents Receipt from Paul

[10]

At
    trial, the Crown sought to tender evidence from Datta. Datta testified on a
voir
    dire

that a customer who identified himself as Paul Gomes bought tickets
    for several return trips between Montreal and St. Maarten and that a travel
    receipt for Paul from July 2009 (the July Receipt) listed his address as 25 Martha
    Eaton Way (the Address).

[11]

Paul
    purchased the tickets for Frasers and Gittens return flights from Montreal to
    St. Maarten in November 2009. There was no record of a receipt for this
    transaction.

[12]

If
    not excluded, Datta would have testified that Paul was probably Sargeant and he
    would have given the evidence about the July Receipt.

[13]

The
    trial judge ruled that Datta could not give the identification evidence because
    the photo line-up procedure had been tainted.
[2]
The Crown does not appeal that ruling.

[14]

The
    Crown does, however, submit that the trial judge erred in excluding Dattas evidence
    about the July Receipt.

[15]

The
    trial judge said the following when he excluded the evidence of the July
    Receipt:

But  Im having difficulty with that coming in.  I mean, you
    could ask [Datta] about the, the particulars of his, his meeting with [Paul].
    But I think the relevant time period is this, is this transaction.  If he, at
    the time that these tickets were purchased, you know, did he, did he provide
    any other details. I think that would get us closer to a probative evidence although
    it would still be hearsay coming from Paul Gomes who, according to my ruling,
    [Datta is] not going to be able to say its the accused before the court. So
    thats the difficulty Im having with the, the temporal connection and that
    being a hearsay document coming in.  And its not the address thats given on
    the other one.

[16]

While
    not perfectly expressed, in my view, in excluding the evidence of the July Receipt,
    the trial judge exercised his discretion based on a weighing of the probative
    and prejudicial value of that evidence. I would not interfere with the exercise
    of that discretion.

[17]

It
    is important to begin by placing the ruling in context.

[18]

When
    the Crown raised the admissibility of the July Receipt, she did not give a
    clear indication of the basis on which she sought to have it admitted nor did she
    offer the court any authority justifying its admission.

[19]

Ultimately,
    the Crown chose not to call Datta as a witness before the jury. Instead,
    Dattas evidence went in as an agreed statement of facts. The agreed statement
    of facts did not include a statement indicating that Paul had given Datta the address
    when purchasing tickets other than those for Fraser and Gittens.

[20]

Several
    days elapsed between when the Crown first raised the admissibility of the July
    Receipt and when it introduced Dattas evidence by way of the agreed statement
    of facts. On a full and fair reading of the transcript, it is clear that the Crown
    could have raised again, with the trial judge, the admissibility of the July Receipt
    in that intervening period. Had the Crown sought to have the ruling revisited, she
    could have offered a coherent basis and authority for its admission. The Crown did
    not do so.

[21]

In
    any event, I do not accept that the trial judge erred in his comments about the
    lack of a temporal connection between the July Receipt and the transaction in
    November in which Paul purchased tickets for Frasers and Gittens trips to
    St. Maarten. While Fraser did first meet with Ernest Wilson in July 2009, their
    discussions at that time related to a drug importation scheme involving travel
    to the United States. Fraser abandoned that plan in September. It was not until
    late October 2009 that Fraser renewed her discussions with Wilson and eventually
    agreed to travel to St. Maarten in November 2009 and bring back drugs.

[22]

Further,
    I do not see that the trial judge erred in finding that there was little
    probative value to the July Receipt. The Address on the July Receipt (
25
Martha
    Eaton Way) did not match the evidence at trial that Sargeant resided at
15
Martha Eaton Way. 15 Martha Eaton Way was the address on Sargeants drivers
    license and it was the address he gave when booking the motel rooms in Montreal
    the night before Gittens and Fraser flew to St. Maarten. Moreover, it was
    Wilson whom Fraser asked to wire her money in St. Maarten, not Sargeant. And, the
    address used for the wire was 25 Martha Eaton Way, not 15 Martha Eaton Way.

(2)

Gittens Hearsay Evidence

[23]

Fraser
    expected that when she flew into the Montreal airport on her return from St.
    Maarten, she would be met by Wilson and Gopie who would then take her to
    Toronto. However, during the return flight to Montreal, Gittens told Fraser that
    Sargeant would also meet them at the airport and that Sargeant had been involved
    in planning the importation. Gittens further said that instead of returning
    immediately to Toronto, she and Fraser would be taken to a Montreal motel where
    the luggage containing the drugs would be picked up.

[24]

The
    trial judge allowed Fraser to testify about what would happen upon their
    arrival in Montreal. However, he ruled that Fraser could not relay Gittens comment
    that Sargeant had been involved in planning the importation, finding that it
    was narrative and not in furtherance of the conspiracy.

[25]

The
    Crown says this evidence was wrongly excluded.

[26]

I
    see nothing in this submission.

[27]

The
    Crown relies on several cases for the proposition that statements about past
    events may be admissible under the co-conspirators exception to the hearsay
    rule if they furthered the conspiracy:
R. v. Mota
(1979), 46 C.C.C. (2d)
    273 (Ont. C.A.), at pp. 282-283;
R. v. Bogiatzis
, 2010 ONCA 902, 285
    C.C.C. (3d) 437, at paras. 42-44;
R. v. White
(1997), 32 O.R. (3d) 722
    (C.A.), at pp. 772-774, leave to appeal to SCC refused, [1997] 3 S.C.R. xv; and
R. v. J.F.
, 2011 ONCA 220, 105 O.R. (3d) 161, at paras. 38-44, affd
    2013 SCC 12, [2013] 1 S.C.R. 565.

[28]

However,
    those cases are readily distinguishable from the present case. In each of those
    cases, the statements were found to have been made to further the conspiracy. The
    statements in
Mota

were designed to reassure an undercover
    police officer (the person to whom the statements were made) that he would
    receive the cocaine for which he had paid (at para. 23). In
Bogiatzis
,
    the conversations were an attempt to reassure the other party of the speakers
    reliability and entice him into further transactions (at para. 43). The
    information in
White

was necessary because the recipient had to
    deal with the auditor in question (at para. 161). And, in
J.F.
, the conversation
    gave the recipient details of the murder necessary for planning its concealment
    (at para. 42).

[29]

The
    trial judge carefully reviewed Frasers statements about what Gittens said on
    the flight back to Montreal. He admitted the portions that were made in
    furtherance of the conspiracy. However, as the trial judge found, Gittens excluded
    statement to Fraser was not made in furtherance of the conspiracy. The excluded
    statement was not designed to reassure Fraser that she would be paid, or to entice
    her into further transactions. Nor was the excluded statement necessary for
    Fraser to fulfill her role in the conspiracy. It was simply narrative about the
    past.

(3)

The Name Rasta

[30]

The
    trial judge ruled that Sargeant had not adopted the nickname Rasta by his
    silence.
[3]
The Crown does not appeal that ruling.

[31]

However,
    in its written submissions, the Crown says that the trial judge erred in ruling
    that Fraser could not testify that she was told that Sargeants nickname was
    Rasta.
[4]
The Crown submits that evidence was important because the Rasta nickname linked
    Sargeant to a cellphone number used to text instructions to Fraser and further
    linked Sargeant to Paul because Paul gave Datta the same number when he
    purchased the airplane tickets for Gittens and Fraser.

[32]

The
    Crowns assertion on this matter is not borne out by the record. The trial
    judge did not rule that Fraser could not testify that she was told that Sargeants
    nickname was Rasta. In fact, Fraser testified that she knew Sargeant as Rasta
    and was cross-examined on how she came to learn the nickname. However, the
    evidence on that point was incomplete and inconclusive.

[33]

To
    the extent that the Crown modified its argument in oral argument to suggest
    that Gittens and Fraser, when speaking on the flight back to Montreal, must
    have used the nickname Rasta, I would simply note that when describing her conversation
    with Gittens, Fraser did not use the nickname Rasta.

[34]

I
    see no error in the way in which the trial judge dealt with the Rasta nickname
    evidence.

WAS THE WRONG
    STANDARD APPLIED AT STEP TWO OF THE
CARTER
TEST?

[35]

The
    Crown submits that the trial judge misdirected the jury on the burden of proof
    at step two of the
Carter

test. As membership in the conspiracy
    at step two must be decided on a balance of probabilities, the Crown says that the
    trial judge erred by instructing the jury that they had to be satisfied beyond
    a reasonable doubt of Sargeants membership in the conspiracy. The Crowns submission
    is founded on the following part of the charge:

Mr. Sargeant attended on two occasions at the airport to assist
    Ms. Fraser with her luggage.  On the second occasion, November the 23rd, 2009,
    he went into the airport with her, as you can see on the video filed as an
    exhibit.

If,
    and only if you are satisfied beyond a reasonable doubt that Mr. Sargeant is in
    fact Rasta and Paul, and if you are satisfied that he is the Paul who purchased
    the tickets from [Datta]
at PayLess Travel, then you can consider
    the fact that he bought the tickets as part of Mr. Sargeants own words and
    conduct at this stage of your analysis relating to probable membership.

Also,
if, and only if you are satisfied beyond a reasonable doubt that Mr.
    Sargeant is Rasta and Paul, and that therefore it is Mr. Sargeant who called
    [Datta] while in the vehicle and identified himself as Paul, then you can
    consider that call as part of Mr. Sargeants own words and conduct
at this stage of your analysis relating to probable membership. And if, and
    only if you find that the text sent to Ms. Fraser stating: Tell them you need
    your clothes and dont have any money, was sent from Mr. Sargeant, then you
    can consider that as well at this stage of your analysis relating to probable
    membership. [Emphasis added.]

[36]

The
    Crown acknowledges that, at trial, it agreed with this instruction. However,
    relying on
R. v. Mohamed
, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para.
    13, the Crown says that while counsels consent may be considered when
    assessing the errors impact, it is not determinative because the charge is ultimately
    the trial judges responsibility.

[37]

I
    do not accept the Crowns submission on this ground of appeal. In my view, it
    is misguided. The impugned references to the standard of proof are not directed
    at the question of whether Sargeant was a member of the conspiracy.  Rather, the
    impugned references are instructions to the jury about how to approach some of
    the identification evidence at stage two of the
Carter

test. Specifically,
    the trial judge was instructing the jury that, in the circumstances of this
    case, they could not convict Sargeant using a balance of probabilities standard
    with respect to the identification evidence about Rasta and Paul. In so doing, as
    the trial judge discussed with counsel at the pre-charge conference, he was
    following this courts decision in
R. v. Quidley
, 2008 ONCA 501, a
    conspiracy to import cocaine (and other drugs) case. In setting aside the
    convictions in
Quidley
, this court held that the trial judge erred in
    instructing the jury that the voice identification on the wiretaps could be
    considered on a balance of probabilities standard because the voice
    identification evidence was critical.

[38]

Recall
    the context within which the impugned instruction was given. In this case, it
    was clear that there was a conspiracy to import cocaine. The issue that the
    jury had to grapple with was whether Sargeant and Gopie were members of that conspiracy.
    The trial judge instructed the jury on multiple occasions that if they were
    satisfied there was a conspiracy to import cocaine, they then had to decide if
    Sargeant and Gopie were probably a part of the conspiracy. The trial judge also
    provided an explanation as to the meaning of the phrase balance of probabilities.
    Recall also the issues around the names Paul and Rasta, discussed above.

[39]

Read
    in context, it is clear that in the impugned passage, the trial judge was instructing
    the jury about how to approach the evidence to be considered when deciding
    whether Sargeant was a member of the conspiracy. He made it clear to the jury
    that they had to be satisfied beyond a reasonable doubt that Sargeant was Rasta
    and Paul before it could consider that evidence to decide whether, on a balance
    of probabilities, Sargeant was a member of the conspiracy.

[40]

Accordingly,
    there was no error in the trial judges instruction on the burden of proof at
    step two of the
Carter

test.

DISPOSITION

[41]

For
    these reasons, I would dismiss the appeal.

Released: E.E.G. September 25, 2017

E. E. Gillese J.A.

I agree. K. van Rensburg J.A.

I agree. David Brown J.A.





[1]

R. v. Carter
, [1982] 1 S.C.R.
    938.



[2]

See
R. v. Sargeant
, 2014 ONSC 4928.



[3]

See
R. v. Sargeant
, 2014 ONSC 4926.



[4]

In oral submissions, the Crown appears to have recognized that
    Fraser did testify at trial that Sargeants nickname was Rasta.


