



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. NKansah, 2019 ONCA 290

DATE: 20190411

DOCKET: C63660

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michèle NKansah

Appellant

Tina Yuen, for the appellant

Tanit Gilliam, for the respondent

Heard: March 22, 2019

On appeal from the conviction entered by Justice E. Ria
    Tzimas of the Superior Court of Justice, sitting with a jury, on December 15,
    2016.

Fairburn J.A.:

Overview

[1]

The appellant returned from Jamaica with just under three kilograms of
    cocaine secreted in her suitcase. The sole issue in dispute at trial was
    knowledge: was the jury satisfied beyond a reasonable doubt that the appellant
    knew that she had a controlled substance in her suitcase? The appellant denied
    knowledge of the drugs. The verdict of guilt demonstrates that the jury
    rejected that denial.

[2]

The appellant raises several grounds of appeal. She says that the trial
    Crowns closing address improperly invited the jury to engage in speculation. She
    also argues that the charge to the jury was deficient in three ways:

(a)     it failed to provide the jury with guidance on the
    permissible uses of good character evidence;

(b)     it misdirected the jury on the essential element of
    knowledge; and

(c)      it
    left the jury with an unbalanced view of the case.

[3]

For the reasons that follow, I would dismiss the appeal.

The Crowns closing address did not improperly invite the jury
    to speculate

[4]

The appellant points to a few passages in the trial Crowns closing
    address that she says rest on nothing more than speculation. Specifically, the
    appellant objects to the trial Crown having suggested to the jury that the
    appellant was:

(a)     knowingly involved in a criminal enterprise;

(b)     a willing member of a criminal scheme to import
    cocaine into Canada;

(c)      hired as a courier to travel to Jamaica and bring
    back a suitcase full of drugs; and

(d)     motivated
    by financial gain and paid for her efforts.

[5]

The appellant maintains that those suggestions were speculative at best,
    detached from the evidence elicited at trial. She says that her position is
    supported by the fact that the trial Crown initially asked permission to lead
    expert evidence about drug hierarchies and where couriers fall within those
    hierarchies. She argues that the expert evidence application demonstrates that the
    trial Crown appreciated that she needed that evidence to make the impugned
    suggestions in her closing argument. Having later decided not to call the
    expert evidence, the appellant contends that the trial Crown improperly used
    her closing address as a substitute for that evidence. I disagree.

[6]

This was a straightforward importing case involving three witnesses.
    There were only two witnesses for the Crown: the Canadian Border Services Agent
    who initially dealt with the appellant and discovered the cocaine, and the RCMP
    officer who arrested the appellant, searched her suitcase, and interviewed her.

[7]

The RCMP officer provided evidence about the manner in which the three
    kilograms of cocaine had been hidden in the appellants suitcase, secreted within
    layers of foam, tinfoil, and plywood, which were contained between the lining of
    the bag on one side and the exterior of the bag on the other side. The cocaine
    represented almost a third of the weight of the bag.

[8]

The appellant was the third and final witness at trial. Although the
    appellant testified that she sometimes worked temporary jobs for additional
    cash and her daughter contributed to household expenses, it was not in dispute
    that she was living on a highly restricted budget of about $1,300 per month,
    out of which she had to pay $790 in rent. The appellants limited financial
    means stood in stark contrast to the cost of her travel.

[9]

The appellant booked a last-minute trip to Jamaica. She explained that
    the timing of her booking arose from her belief that she would be receiving a
    job offer: she wanted to ensure that she took a vacation and visited family
    while she still had an opportunity to do so. Although there was no information
    about the actual cost of the flight, the appellant agreed that it was more
    expensive than usual because it was a last-minute booking. She also agreed that
    she paid an extra $200 to upgrade her seats and an extra $200 to renew her
    passport on a rushed basis. She also agreed that, while she had family in
    Jamaica, she rented a room in a guesthouse and paid $250 for the week.

[10]

According
    to the appellant, the room she rented was in a home owned by a woman named Hazel,
    who had a nephew named Everton. Hazel asked the appellant to take a bikini and
    some t-shirts back to Canada for Hazels niece. The appellant was to contact
    Hazel once she got back to Canada so that Hazel could connect her with her niece.
    Hazel was never heard from again.

[11]

During
    the defence closing submissions, counsel suggested that Hazel and Everton put
    those drugs in [the appellants] suitcase, which would have been easy for
    them accomplish. Defence counsel posited in his closing address that either
    Hazels niece would surreptitiously retrieve the drugs once the appellant was
    back in Canada, or perhaps Everton would visit the appellant, giving him access
    to the bag. All the while, it was suggested that the appellant would remain in
    the dark about what she had brought into Canada.

[12]

It
    is against that evidentiary backdrop, and the defence position in closing, that
    the trial Crowns impugned closing address must be considered.

[13]

The
    suggestion that the appellant was a courier is not controversial: she conveyed
    the cocaine from Jamaica to Canada. The sole question at trial was whether she
    knew she was a courier of the cocaine. I see no impropriety in the trial Crown referring
    to the appellant as a courier.

[14]

Nor
    do I agree with the appellants submission that the trial Crown stepped into
    speculation when she suggested that the appellant was involved in a criminal importing
    scheme or enterprise. The circumstantial evidence was reasonably capable of
    supporting that inference. If sold at the gram level in the Greater Toronto
    Area, it was agreed that the cocaine would be worth between $238,880 and
    $328,460. The value of the cocaine gave rise to the reasonable inference that
    not just anyone, least of all someone unaware of the bags contents, would have
    been entrusted with the drugs:
R. v. Pannu,
2015 ONCA 677, 127 O.R.
    (3d) 545, at para. 157;
R. v. Bryan,
2013 ONCA 97, at para. 11. This
    suggested that the appellant may well have been working with another or others,
    especially because the evidence demonstrated that she could not have afforded
    that amount of cocaine on her own.

[15]

Moreover,
    the appellants own theory supported the suggestion of group activity. During
    the defence closing address, the appellant submitted that she had unknowingly
    fallen victim to Hazel and Evertons criminal importing scheme. The trial Crown
    did not engage in improper speculation when she essentially agreed that there
    was an importing scheme at work, differing only on the issue of whether the
    appellant was a knowing member of that scheme.

[16]

As
    for the suggestion that the Crown stepped into the realm of speculation by
    suggesting that the appellant was remunerated for her efforts, that too was an
    available inference arising from the circumstantial evidence elicited at trial.

[17]

There
    was solid evidence relating to the appellants limited financial means. While
    caution must be exercised in relation to evidence of impecuniosity that may
    support a motive to commit a financially-motivated crime because it can lead to
    improper propensity reasoning  reasoning that, because an offender is poor,
    she may be more likely to commit a crime for financial gain  that is not what
    occurred here:
R. v. Mensah
(2003), 170 O.A.C. 244, leave to appeal
    refd, [2003] S.C.C.A. No. 207, at para. 8;
R. v. Burnett,
2018 ONCA
    790, at paras. 105, 116-17;
R. v. Phillips,
2008 ONCA 726, at paras.
    50-51.

[18]

The
    appellants highly restrictive monthly budget alone gave rise to a reasonable inference
    that she was not in a position to afford her trip to Jamaica on her own: the expensive
    last-minute and upgraded flight, the expensive late renewal of the passport,
    and the rental accommodation. Based on that evidence, it was open for the jury
    to infer that, at a minimum, the trip to Jamaica had been paid for or
    contributed to by another. Such a payment could be construed as a form of
    compensation.

[19]

The jury
    also knew the value of the cocaine on the street in the Greater Toronto Area. That
    cocaine could not get to market unless it got across the border. Given the risk
    of detection and the exposure to criminal penalties for importing, it is a
    common sense inference that those who bring cocaine into the country do not do
    so as a favour to others, but for remuneration. The proposition that the
    appellant knew she was carrying cocaine and would have been remunerated for her
    efforts arose from the evidence and common sense.

[20]

I do
    not agree with the appellants argument that the Crown closing effectively accomplished
    what the Crown chose not to pursue by way of expert evidence. The scope of the proposed
    expert opinion evidence extended well beyond the impugned suggestions in the
    Crown closing address: it included reference to methods of concealing drugs, drug
    importation hierarchies, and roles within a drug conspiracy, including the
    specific roles of organizers, overseers, couriers and receivers. The fact that
    the trial Crown ultimately chose not to lead that evidence did not remove the
    Crowns ability to call upon the jurors to draw common sense inferences from
    the evidence they had seen and heard.

[21]

I would
    make two final observations regarding the appellants suggestion that the Crown
    closing invited the jury to engage in inappropriate speculation. First, even if
    that were so, the trial judge instructed the jury that they could only decide
    the case based on the evidence that they had seen and heard. The jury was further
    instructed that the closing addresses by counsel did not constitute evidence.
    Second, defence counsel did not object to the Crowns closing remarks. The
    failure to object at trial merely underscores the appropriateness of those
    remarks and their support in the evidence.

The alleged failure to provide instructions on the use of the good
    character evidence

[22]

The
    appellant relied heavily upon good character evidence. She testified about
    having been raised by a pastor, participating in multiple charitable
    activities, and having a pro-social background. Among other things, she
    testified that she had held a job in the past, had a 23-year-old daughter and
    was attending McGill University to upgrade her education in business. She said
    that she frequently volunteered as a youth mentor and tutor in Montreal, and was
    studying to be a counsellor qualified to work with people who have special
    needs, substance abuse issues, and with the elderly.

[23]

The
    appellant maintained that she would never do anything to risk her good reputation
    or future earning potential. Specifically, she testified that she would not
    risk her ability to obtain a police record check, something she needed for much
    of her volunteer work.

[24]

It was not in dispute at trial, nor is it in dispute on appeal,
    that the defence elicited good character evidence that was relevant both to the
    appellants credibility and to whether, because of her character traits, the
    appellant was less likely to have committed the offence. When an accused puts
    her character in issue, the trier of fact should be charged on both purposes to
    which the evidence can be put:
R. v. Elmosri
(1985)
, 23 C.C.C. (3d) 503 (Ont. C.A.),
    at pp. 506-7;
R. v. Potts,
2018 ONCA 294, at paras. 59-61.


[25]

The trial
    judge did not provide the jury with a specific free-standing instruction detailing
    how the jurors could use the good character evidence. The appellant says that
    the failure to provide that instruction left the jury without any understanding
    of how to use the evidence. The appellant argues that the error was compounded
    by the trial Crowns closing submissions, which she says suggested that the
    good character evidence was not really evidence and was not relevant to the
    jurys deliberations.

[26]

Considering
    counsels closing submissions and the trial judges charge as a whole, I am
    satisfied that the jury was left with an accurate picture of how they could use
    the good character evidence. I will first address the trial Crowns closing
    remarks and then move on to consider the charge.

[27]

The appellant
    objects to the trial Crown having told the jury that the case was not about
    [the appellants] character, that it was not about whether the appellant was a
    good person, and that [i]n most cases, [character] is not relevant. One of
    the impugned passages reads as follows:

This case is not about [the appellants] character. That is,
    its not about whether or not [the appellant] is a good person. Its not about
    the things she did in her life before or after June 28
th
, 2015. As
    Im certain you know in your own lives, good people make mistakes. So-called
    bad people sometimes come through and do good things unexpectedly. The point is
    that human behaviour is hard to predict. Sometimes people take risks, which, in
    retrospect, they ought not have taken. That is why, generally speaking, a criminal
    trial is not about character.

[28]

The appellant
    argues that those comments essentially encouraged the jury to ignore as
    irrelevant the good character evidence, compounding the problem arising from
    the trial judges failure to address the proper use of that evidence.  I
    disagree with this characterization of the trial Crowns closing remarks.

[29]

The trial
    Crowns closing was directly responsive to the appellants position that,
    because of her antecedents, she would not have knowingly imported cocaine. The
    Crown was entitled to meet that defence argument and advocate against it. The
    trial Crown did not tell the jurors to disregard the character evidence;
    rather, she told the jurors to focus on the evidence that she said should
    satisfy them beyond a reasonable doubt that the appellant knew what was in her
    bag. For instance, the trial Crown suggested the following:

[A] lot of what has been submitted to you by [defence counsel]
    has been about [the appellants] character.  He asks you quite simply to
    believe that [the appellant] is not the type of person to commit this crime.
    And Im going to submit to you, please focus on the evidence. Contrary to what
    has been put to you, this is a strong Crown case. I ask you not to be taken in
    by a smooth presentation and a smooth story which I suggest has been designed
    to garner your sympathy.



[The appellant] asks you to believe that because of the type of
    person she is, she would not knowingly import the drugs. That is a risk that
    she would not take. But I suggest to you that this is a red herring. And I ask
    you to focus on the evidence. The answers are there for you in the evidence.

[30]

There
    was nothing wrong with suggesting to the jury that the trial was not about
    character. The trial was not about the appellants character. It was about
    whether the appellant knew that she had cocaine in her bag when she arrived in
    Canada. While the defence was encouraging the jury to find that knowingly
    bringing cocaine into Canada was inconsistent with the appellants character,
    the Crown response was that, in spite of that character, the evidence pointed
    toward the appellant being knowingly involved. That was an available position
    for the Crown to advance. Read contextually, the jury would have understood the
    Crowns closing submissions to be suggesting that, despite the evidence
    supporting the appellants good character traits, the evidence also supported
    the fact that she knowingly imported cocaine.

[31]

This
    leaves the issue of whether the charge to the jury was deficient on the character
    point. I conclude that it was not.

[32]

Reviewing
    the adequacy of a charge on appeal requires this court to take into account the
    context of the trial as a whole, including the closing submissions of counsel:
R.
    v. Daley,
2007 SCC 53,
[2007]
    3 S.C.R. 523, at para. 58. The charge was delivered immediately after
    counsels closing addresses. The defence had clearly brought home to the jury the
    defence position that the appellant was an honest witness and was not the type
    of person who would have committed the offence. As set out in the passages
    above, even the trial Crown twice repeated the appellants position regarding
    her good character and how it informed the issue of knowledge. Those closing
    submissions, made immediately before the charge and on the same day the jurys deliberations
    started, would have informed the jurys understanding of their task.

[33]

In
    addition, counsel were given the opportunity to provide input on the contents
    of the charge. Defence counsel did not ask for a specific instruction on
    character. Counsel were also provided with the opportunity to review the draft
    charge to the jury, and to raise any objections following delivery of the
    charge. No objections were voiced.

[34]

Counsel
    are expected to assist the trial judge and identify what in their opinion is
    problematic with the judges instructions to the jury:
Daley,
at
    para. 58. Counsels failure to object to the jury charge is a factor for
    the reviewing court to consider because it can demonstrate the seriousness of
    any alleged problem:
Daley,
at para. 58. I find that the silence on
    the good character instruction demonstrates that the appellant was satisfied at
    trial that the operative legal principles had been adequately conveyed to the
    jury:
R. v. Jacquard,
[1997] 1 S.C.R. 314, at pp. 338-39.

[35]

The
    question is whether, against the backdrop of the entire charge and entire
    trial, the trier of fact was in a position to decide the case in accordance
    with the law and evidence:
R. v. Calnen
, 2019 SCC 6, at para. 6;
R.
    v. Jaw
, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J.
    wrote in
R. v.

Daley
, at para. 30:

The cardinal rule is that it is the general sense which the
    words used must have conveyed, in all probability, to the mind of the jury that
    matters, and not whether a particular formula was recited by the judge. The
    particular words used, or the sequence followed, is a matter within the
    discretion of the trial judge and will depend on the particular circumstances
    of the case.

[36]

A
    functional approach to this jury charge reveals its adequacy. The trial judge
    instructed the jury that the sole issue for them to resolve was whether the
    appellant knew that her suitcase contained a controlled substance. The jury was
    instructed that the issue of knowledge was to be decided on all of the
    evidence. The jury would have understood that the good character evidence was
    included in that direction.

[37]

The
    trial judges summary of the evidence included specific references to the good
    character evidence. The trial judge concluded the six-page single-spaced
    summary of the appellants evidence by restating her position:

She explained why she would never look for easy money, and
    outlined all the various jobs and efforts she has undertaken over the years to
    support herself and improve her education.

She also shared her views on what she called the filth of
    cocaine, and gave you some insight into the youth she said she engages with,
    and her understanding of the ills of cocaine.

Ultimately, [the appellant] told you that she did not know
    about any drugs in her suitcase, that she would not have taken such a risk and
    jeopardize her name, her future earnings and future police security
    clearances.

[38]

This
    instruction would have reinforced for the jury the defence position, that the
    appellant would not have committed the offence because of who she is and what
    she stands for.

[39]

Further,
    the trial judge read out a summary of each of the parties positions close to
    the end of the charge. The parties had provided those summaries to the trial
    judge for inclusion in her charge. The defence summary again referred to the
    appellants unchallenged good character.

[40]

In
    the context of this single-issue case, the trial judges failure to give a
    specific good character instruction had no impact on the jurys understanding
    of their task. The overall effect of the charge was to equip the jury with the
    necessary tools to decide the case:
Daley,
at para. 31;
Jacquard,
at
    para. 62. Considered as a whole, and against the closing addresses, the jury would
    have understood the permissible uses of the good character evidence.

The alleged misdirection on knowledge

[41]

The
    appellant raises three broad complaints regarding the trial judges
    instructions on the issue of knowledge: first, the appellant says that the
    trial judge failed to properly relate the evidence to the issue of knowledge; second,
    she says that the trial judge wrongly invited the jury to use a rejection of
    her evidence as affirmative evidence of guilt; and third, she says that in
    reviewing the trial Crowns position, the trial judge failed to provide any
    counterpoints to that position. I deal with each argument in turn.

(a)

The trial judge did
    not fail to relate the evidence to the issue of knowledge

[42]

The
    trial judge appropriately explained to the jury that the sole issue for their
    determination was whether the appellant knew she had a controlled substance in
    her bag, referring to that issue as the crux of the case. The appellant acknowledges
    that the trial judge provided a legally compliant instruction on the essential
    element of knowledge, but contends that she failed to assist the jury by
    explaining what parts of the evidence were relevant to their determination of knowledge.
    Instead of focussing on the evidence that informed knowledge, the appellant
    says that the trial judge erroneously opted to review all of the evidence at
    once. I disagree.

[43]

Although
    a witness-by-witness recitation of the evidence will fall short of providing a
    jury with sufficient assistance in some cases, this is not universally so.
    Trial judges are granted wide latitude in determining how to structure their
    charges:
R. v. Speers,
2017 ONCA 333, 347 C.C.C. (3d) 401, at para. 30.

[44]

In this
    short, three-witness, one-issue case, there was no need for the trial judge to
    parse the evidence. The Crowns position was that, as a matter of common sense,
    the entire evidentiary landscape pointed toward the appellants knowing
    participation in drug importation. In these circumstances, the trial judge made
    a sensible decision to provide a review of all three witnesses evidence right
    after explaining how the jury should approach the issue of knowledge. I would defer
    to the trial judges choice in that regard.

(b)

The trial judge did
    not invite the jury to use a rejection of the appellants evidence as positive
    evidence of guilt

[45]

The
    appellants second complaint is that the trial judge wrongly invited the jury to
    use a rejection of the appellants evidence as affirmative evidence of guilt. I
    disagree.

[46]

The
    impugned comments are taken out of context. They fell within the part of the
    charge where the trial judge was summarizing the Crowns position on proof of
    knowledge, part of which involved explaining to the jury why the Crown was
    urging them to reject the appellants denial of knowledge. For instance, in one
    of the impugned comments, the trial Crown suggested to the jury that the
    appellants explanation about how she was set up by Hazel and Everton relied
    upon impossibly convenient coincidences. There was nothing wrong with the
    charge reviewing those aspects of the Crown position, as they were relevant to
    the issue of knowledge. Importantly, the trial judge did not go on to suggest
    that a rejection of the appellants evidence could constitute affirmative
    evidence of guilt.

[47]

Finally,
    I again observe that there was no objection to either the Crown closing or the
    charge to the jury on these points.

(c)

The charge contained
    all of the necessary counterpoints to the Crowns position

[48]

The
    appellants third complaint is that the trial judge failed to provide any
    counterpoints to the Crowns position on knowledge. The appellant proffers
    several examples of this alleged shortcoming. For instance, the appellant says
    that it was improper for the trial judge to point to the excess weight of the
    cocaine and packaging in the appellants bag as a fact that potentially
    informed knowledge, without immediately countering that suggestion with the
    appellants explanation for why she may not have noticed the additional weight
    in the bag.

[49]

Again,
    the appellants claim does not survive a contextual review. The passages
    complained of all fall within a part of the charge that was clearly summarizing
    the Crowns position on proof of knowledge. At other points in the charge,
    the necessary counterpoints were reviewed and provided. In addition, the jury
    was instructed to consider all of the evidence in deciding the case, and the
    jury had just heard the closing addresses summarizing the appellants version
    of events.

[50]

The
    appellant also maintains that the trial judge did not provide a balanced charge
    respecting the Crowns reliance on the appellants demeanour at the airport. Both
    the Crown and the defence relied upon demeanour evidence. In fact, the defence tried
    to use the fact that the appellant did not appear nervous when dealing with the
    customs officer, and exhibited genuine surprise when told that there was
    cocaine in her bag, as factors pointing away from knowledge. The trial judge
    provided a balanced charge that properly reflected both parties positions on
    demeanour.

[51]

Finally,
    the appellant objects to the trial judge having told the jury that: [Crown
    counsel] put to you that it would be unreasonable to believe that a drug
    supplier would send drugs worth over $300,000 to Canada with no secure way of
    retrieving them from [the appellant]. The appellant says that the trial judge
    should have explained to the jury that the value of the cocaine in Jamaica was
    much less and, therefore, the monetary risk to the supplier was potentially
    less than what the Crown suggested. I disagree. The jury knew the value of the
    cocaine in Jamaica, as it was filed as part of an agreed statement of fact that
    constituted an exhibit available to the jurors during deliberations. As well, whether
    considered in terms of value in Jamaica or Canada, the cocaine was valuable
    cargo.

The jury was not left with an unfair view of the case

[52]

The appellant submits that
    the Crown closing and charge left the jury with the impression that the defence
    case should be held to a higher standard of scrutiny than that of the
    prosecution. The appellant says that the trial Crown essentially suggested that
    it was up to the appellant to account for every loose detail in the case and
    that the trial judge should have corrected that misimpression. I disagree.

[53]

First, the defence did not
    object to the Crowns closing submissions. Nor do I see any basis upon which a credible
    objection could be made. The Crown was merely advocating for the position that
    the appellants version of events did not accord with what the Crown said was common
    sense. In particular, the Crown argued that the cocaine was a valuable asset
    and, whoever owned it, they would not have entrusted it to the whim of a person
    who had no idea what she was carrying. What if she lost her bag? What if she
    decided to dispose of it? What if she discovered that it contained cocaine and
    reported it to the authorities?

[54]

Second,
    the appellants assertion that the defence was held to a higher standard is
    unsustainable. The trial judge provided a thorough and correct explanation regarding
    the burden and standard of proof; properly instructed the jury on
R. v. Villaroman
, 2016 SCC 333, [2016] 1 S.C.R. 1000,

outlining how to approach the circumstantial evidence that touched on the
    issue of knowledge; and twice set out a correct instruction on
R. v. W.(D.)
, [1991] 1 S.C.R. 742
.

[55]

The
    trial judge also provided a balanced review of the evidence. In fact, the
    defence evidence received a review twice as long as that of the Crown.

[56]

The
    charge was balanced and fair.

Conclusion

[57]

I
    would dismiss the appeal.

Released: BM Apr 11, 2019

Fairburn J.A.
I agree. Paul Rouleau J.A.
I agree. B.W. Miller J.A.


