



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Godwin, 2018 ONCA 419

DATE: 20180503

DOCKET: C62375



Feldman, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ewah Godwin

Appellant

Paul Calarco, for the appellant

Milica Potrebic, for the respondent

Heard: April 17, 2018

On appeal from the conviction entered by Justice Leonard
    Ricchetti of the Superior Court of Justice, sitting with a jury, dated June 19,
    2015, and from the sentence imposed on December 1, 2015 with reasons reported
    at 2015 ONSC 7492.

Roberts J.A.:

[1]

The appellant appeals
    from his conviction following a jury trial with his co-accused, David Igbinoba,
    for conspiracy to import heroin and possession of heroin for the purpose of
    trafficking, and from the 11 year, 3 and a half month sentence (after credit
    for pre-sentence custody) that was imposed.

[2]

With respect to the
    conviction, the appellant submits that the trial judge made the following two
    reversible errors:

i. He failed to properly instruct the jury on the limited use that
    they could make of his co-accuseds out-of-court statement to the police. In
    particular, the trial judge should have directed the jury that it could not
    visit the co-accuseds lack of credibility on the appellant.

ii. He should have held a jury inquiry because of juror bias.

[3]

I do not accept these
    submissions.

(i)

Adequacy of the jury instruction

[4]

I
see no error in the trial judges instruction
    concerning the proper use that the jury could make of the co-accuseds out-of-court
    statement to the police, namely, that it must not consider anything
[
it finds
]
an accused said to a witness outside of
    the court in reaching
[
its
]
verdict on the other accused, even if that describes what that other accused
    said or did. The trial judge vetted the charge with counsel. There was no
    objection to the instruction that the appellant now impugns. In my view, when
    the charge is read as a whole, there is no basis to suggest that the jury would
    have been confused by the instruction.

[5]

Moreover, I do not agree that there was any obligation
    on the trial judge to give an express instruction that the jury was not to use
    any adverse credibility findings concerning Mr. Igbinoba against the appellant.
    The appellant extrapolates this submission from the language of the instruction
    that this court in
R. v. Dooley
, 2009 ONCA
    910,
249 C.C.C. (3d) 449, leave
    to appeal refused, [2010] S.C.C.A. No. 83 and [2010] S.C.C.A. No. 179,
at para. 133, indicated was correct that out-of-court statements
    made by one accused were admissible only against that accused and were not
    admissible 
in any way
for
    or against the other accused who did not make the out-of-court utterance
(
emphasis added).
I
    do not read this statement as supporting the proposition asserted by the
    appellant.

[6]

The common sense conclusion
    that the jury should not impugn the appellants credibility on the basis of
    adverse credibility findings against his co-accused logically flows from the
    trial judges instructions. He gave instructions against the jury engaging in
    forbidden propensity reasoning, the limited use that could be made of a
    co-accuseds out-of-court statement, and the requirement that the jury come to a
    separate verdict for each accused.

(ii)

Jury inquiry

[7]

This issue arose because of unsolicited
    communications that Juror no. 6 sent to trial Crown counsel following the
    delivery of the verdict on June 19, 2015. Between July 4 and July 7, 2015 Juror
    no. 6 sent written communications by letter and email to Crown counsel. Most of
    Juror no. 6s communications are taken up with praise for the efforts of Crown,
    defence and court staff, and the thanks of all of the jurors for the
    opportunity to participate in the administration of justice. In response, Crown
    counsel thanked Juror no. 6 for her remarks and in response to her question,
    invited her and the other jurors to attend the sentencing hearing if of
    interest to them. The exchange of emails ended with Juror no. 6s July 7, 2015
    email that Crown counsel crossed her mind and she thought that she would say
    hi, wishing him a nice afternoon. On July 10, 2015 senior counsel at the Public
    Prosecution Service of Canada advised the trial judge and defence trial counsel
    of the entirety of the communications between Juror no. 6 and Crown counsel.

[8]

The appellant submits that Juror
    no. 6s communications progressed beyond a mere expression of gratitude from a
    member of the public to Crown and defence counsel for a job well done, to a
    demonstration of romantic interest in Crown counsel. As such, they give rise to
    a reasonable apprehension of bias on the part of Juror no. 6 in
favour
of the Crown.

[9]

There is no question that the correspondence from Juror
    no. 6 warranted the consideration undertaken by the trial judge. There is also
    no suggestion that there were any communications between Juror no. 6 and Crown
    trial counsel before the verdict was rendered. The impugned communications
    having arisen subsequent to the delivery of the verdict, the trial judges
    options were limited in the circumstances of this case to creating a record for
    appellate review:
R. v. Burke
, 2002 SCC 55,
[2002] 2 S.C.R. 857,
at paras. 55 and 56;
R. v. Bains
,
    2015 ONCA 677, 328 C.C.C. (3d) 149, at para. 72.

[10]

I
agree with the trial judges conclusion that in the circumstances
    of this case, there would have been no utility in holding a jury inquiry. Such
    an inquiry necessarily would have devolved into an impermissible examination concerning
    matters protected by the jury secrecy rule at common law and prohibited under s. 649
    of the
Criminal Code
, which are intrinsic to
    the deliberation process, including jurors minds, emotions or ultimate
    decision:
R. v. Pan
, 2001 SCC 42,
[2001] 2 S.C.R. 344,
at paras. 59 to 61 and 77.

[11]

In my view, t
he record created by the trial judge was sufficient to allow for
    meaningful appellate review of the issue of jury bias. Indeed, the appellant submits
    that the record is sufficient to demonstrate that Juror no. 6s communications
    with Crown counsel create a reasonable apprehension that she did not decide the
    case in accordance with her oath, thereby rendering the verdict against the
    appellant a miscarriage of justice.

[12]

On
    appellate review, the test to be applied to determine whether Juror no. 6s
    communications give rise to a reasonable apprehension of bias is well-established:
    What would an informed person, viewing the matter realistically and practically
     and having thought the matter through  conclude? Would he or she think that
    it is more likely than not that the juror, whether consciously or
    unconsciously, would not decide fairly? (see:
R. v. Dowholis
, 2016
    ONCA 801, 133 O.R. (3d) 1, at paras. 19 and 20).

[13]

The
    test is a stringent one. There is a strong presumption of jury impartiality
    that is not easily rebutted. As this court recently stated in
Dowholis
,
    at para. 18:

A juror is a judge. There is a
    strong presumption of judicial impartiality and a heavy burden on a party who
    seeks to rebut this presumption. Judicial impartiality has been called
    "the key to our judicial process":
Wewaykum Indian Band v. Canada
, 2003
    SCC 45, [2003] 2 S.C.R. 259, at para. 59. The presumption of impartiality
    anchors public confidence in the integrity of the administration of justice.

[14]

While
    Juror no. 6s communications are concerning, I conclude that a reasonable
    person, knowing all the facts, would not think that it is more likely than not
    that this juror, whether consciously or unconsciously, would not have decided fairly.
    The appellant has not met the high threshold of demonstrating a reasonable
    apprehension of bias.

(iii)

Sentence

[15]

With respect to the sentence appeal, the
    appellant submits that the trial judge erred in imposing a harsh sentence
    because he failed to give effect to the principle of rehabilitation and to
    consider the lower purity of the heroin in issue as a mitigating factor.

[16]

I disagree.

[17]

The trial judge explicitly considered the
    possibility of rehabilitation but properly gave greater weight to the
    principles of denunciation and deterrence in the circumstances of this case. He
    also examined the appellants purity argument and, again, correctly in my view,
    determined that there was no evidence that the heroin in this case was of such low
    purity that it was a material factor on sentencing.

[18]

Finally, there is no issue that the
    sentence imposed was within the appropriate range for similar offenders and
    similar offences. It reflected the appellants moral culpability in devising
    and carrying out a sophisticated importation scheme of a seriously harmful
    controlled substance. The sentence was not manifestly unfit. I see no error
    that would justify appellate intervention.

[19]

Accordingly,
    the appeal and leave to appeal sentence are dismissed.

Released: May 3, 2018

L.B. Roberts J.A.

I agree K. Feldman J.A.

I agree G.T. Trotter J.A.


