



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Harris, 2014 ONCA 746

DATE: 20141027

DOCKET: C55199

Cronk, LaForme and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hollie Marie Harris

Appellant

Julianna A. Greenspan, for the appellant

Milica Potrebic, for the respondent

Heard: October 22, 2014

On appeal from the conviction entered on January 16, 2012
    and the sentence imposed on March 22, 2012 by Justice S. Casey Hill of the Superior
    Court of Justice, sitting without a jury, with reasons for conviction reported
    at 2012 ONSC 27.

ENDORSEMENT

[1]      This is an appeal from a conviction for
    importing cocaine and a sentence of four years imprisonment.  The only issue
    at trial was whether the appellant knowingly imported the drug.  The
    appellant testified at trial. Her credibility was central to the disposition of
    the case. Of particular concern was the plausibility of her description of
    events.  On appeal, the appellant argues that the trial judge misapprehended
    the evidence and rendered an unreasonable verdict.  She also submits that the
    sentence imposed was harsh and excessive in the circumstances. Finally, the
    appellant seeks to admit fresh evidence.

[2]      For the reasons that follow, we would deny the
    fresh evidence application. Further, we do not agree that the trial judge
    misapprehended the evidence or that his verdict is unreasonable.  Nor do we
    agree that the sentence was harsh and excessive in the circumstances. 
    Accordingly, we would dismiss the conviction appeal, grant leave to appeal
    sentence and dismiss the sentence appeal.

BACKGROUND

[3]      By way of brief background, the charge of
    importing relates to the appellants arrest when she returned to Canada from a
    week in Panama.  About two pounds of cocaine were discovered in her
    suitcase.  The appellant maintained that she had no knowledge that the
    cocaine was in her possession.

[4]      The appellant travelled to Panama with a Mr.
    Curran who paid her $2,000 to accompany and entertain him for the week.  He
    also paid for her airfare and accommodations.  According to the appellant, while
    in Panama, she and Curran met up with a woman named Nancy, who spent time with
    them during their stay there.

[5]      Prior to the appellants return to Canada,
    Nancy asked the appellant to carry some clothes and souvenirs for her back to
    Canada.  The appellant agreed. The appellant testified that as she and Curran
    were packing their suitcases, he asked her to transport bottles of what appeared
    to be health care products. Again, the appellant agreed. Upon arrival in
    Canada, the appellant was searched at customs. The cocaine was discovered in
    the health care bottles and the appellant was arrested.

THE FRESH EVIDENCE APPLICATION

[6]      The trial judge, at para. 51 of his reasons,
    referenced the Crowns position as to why the appellants testimony should not
    be believed.  According to the Crown, the appellants testimony included: a
    confusing account of how items were to be returned to Nancy, a person assuming
    she exists who, like Curran, was not called to confirm the accuseds story. 
    At para. 75 of his reasons, the trial judge observed that the evidence is far
    from solid that a Nancy actually existed.

[7]      The appellant seeks to admit fresh evidence,
    which consists of photographs of a woman said to be Nancy taken from a camera
    found in the appellants possession at the time of her arrest. She asserts that
    it is relevant because the trial judge disbelieved her testimony about Nancy 
    including the fact of Nancys existence  and this was a significant reason why
    he rejected her evidence as a whole.  The appellant says that the photographs
    confirm that Nancy existed and that proof of this fact would directly have
    affected the trial judges assessment of her credibility and the plausibility
    of her testimony
.
We disagree.

[8]      Rather than disbelieving the appellant on the
    basis that Nancy did not exist, the trial judge considered the appellants
    entire account of her relationship with Nancy. In considering this
    relationship, the trial judge found that elements of the appellants evidence
    rendered her testimony unbelievable.  These elements included, inconsistencies
    in her testimony, and between testimony and out-of-court utterances, the
    implausibility of aspects of her story, established deception on some matters
    (para. 71 of the trial judges reasons).  At para. 74(1) of his reasons, the
    trial judge outlined his concerns about the implausibility of the appellants
    testimony relating to Nancy:

[A]s to "Nancy", the accused made no inquiry and had
    no knowledge of her prior connection to Curran, she was unaware of Nancy's
    surname, she gave no thought to the effect of taking shoes and other items from
    Nancy on the maximum weight allowance for her luggage, and the vagaries of any
    plan to return items to Nancy  variously described as at the P.I.A. or by
    phoning her in Toronto.

[9]      We agree with the Crown that the nature of the
    fresh evidence  photographs of a woman only the appellant can identify as
    Nancy  relates to a non-essential aspect of the appellant's testimony at
    trial. Nancy was merely a part of the appellant's story that the trial judge
    found did not make sense.  A photograph of a woman purporting to be Nancy would
    not have rectified the implausibility of the appellant's testimony.

[10]    And finally, the images on the camera were
    reproduced and provided to the appellants trial counsel after the camera was
    seized by the authorities.  Trial counsel, in cross-examination on her
    affidavit, said that she made a decision not to tender the photographs into
    evidence at trial as it was her view that they were unnecessary and of no
    value.  Trial counsel was correct.

[11]    The application to admit the fresh evidence is
    denied.

THE CONVICTION APPEAL

[12]    The appellant argues that the trial judges
    disbelief in the existence of Nancy was a critical finding that resulted in a
    current of disbelief running through his reasons for conviction. The
    appellant emphasizes the significance of the fresh evidence and how it is vital
    to this courts appreciation of the consequences of the trial judges further
    misapprehensions of evidence.  As the appellants counsel put it in oral
    argument:

The fresh evidence that is being proposed, and the
    circumstances around the fresh evidence, does, I submit, have a direct bearing
    on the case as a whole, and it impacted on the entire fact finding process, and
    so I think the fresh evidence, as I hope to point out to the court, does create
    a tenor of the entire judgment by the trial judge that informs the
    misapprehension of evidence as well as the unreasonable verdict

[13]    Having rejected appellate counsels view of the
    importance of the fresh evidence, the force of the remaining allegations of
    misapprehension of evidence by the trial judge is seriously diminished. 
    Nevertheless, we will briefly comment on these remaining allegations.

(i)

Misapprehension of evidence

[14]    The appellant submits that the trial judge
    misapprehended the evidence in three ways. First, the trial judges finding that
    the prospect of a luggage inspection was obvious was a misapprehension that
    he relied on to infer that the appellant intended to abandon her bag.  Second,
    in concluding that the appellants testimony was implausible, the trial judge
    made the erroneous finding that the appellant: "ripped up boarding passes,
    as well as Curran baggage claim tags concealed in the accused's bra as opposed
    to placement in her purse or checked bag or pocket or a garbage bin".  And
    third, the trial judge incorrectly found that the appellant knew that strip
    clubs have a reputation as sites for drug offences.

[15]    We reject the appellants assertion that the
    trial judge misapprehended the evidence.  The trial judge conducted a thorough,
    detailed and accurate review of the evidence.  In the end, he simply did not
    believe the appellant, nor did he find that her evidence raised a reasonable
    doubt as to her knowledge of the cocaine.  After reviewing the circumstantial
    evidence at length, the trial judge found that the only rational inference that
    could be drawn was that, prior to entering Canada, the appellant knew her
    luggage contained a prohibited substance. He was entitled to so find.

[16]    Fundamentally, this appeal amounts to an
    invitation to this court to improperly substitute its own credibility
    assessments for those made by the trial judge.  T
he
    appellant asks this court to dissect and microscopically examine single
    passages from the trial judge's reasons in isolation and out of context. As the
    Supreme Court of Canada made clear in
R. v. Stirling,
2008 SCC 10, [2008] 1 S.C.R. 272, at para. 13, citing
R.
    v. Davis
, [1999] 3 S.C.R. 759, at para.
    103, citing
R. v. Davis
(1998),
    159 Nfld. & P.E.I.R. 273 (C.A.), at para. 138:

It is not sufficient to "cherry pick" certain
    infelicitous phrases or sentences without enquiring as to whether the literal
    meaning was effectively neutralized by other passages. This is especially true
    in the case of a judge sitting alone where other comments made by him or her
    may make it perfectly clear that he or she did not misapprehend the import of
    the legal principles involved. As McLachlin, J. said in
B.(C.R.)
at
    26: "[t]he fact that a trial judge misstates himself at one point should
    not vitiate his ruling if the preponderance of what was said shows that the
    proper test was applied and if the decision can be justified on the evidence. [Citations
    omitted]

[17]    In short, the trial judge directed himself to
    the relevant issues and he did not err in his appreciation of the evidence in a
    manner that could have affected the outcome of the trial:
R. v. Alboukhari
,
    2013 ONCA 581, 310 O.A.C. 305, at para. 30. There was no miscarriage of justice
    and this ground of appeal is dismissed.

(ii)

Unreasonable verdict

[18]    Given our conclusions on the issues discussed
    above, this submission loses all of its force. There is no basis for a finding
    that the trial judges verdict was unreasonable.

THE SENTENCE APPEAL

[19]    The appellant also seeks leave to appeal her
    sentence, arguing that the sentence of four years imprisonment imposed by the
    trial judge was harsh and excessive in the circumstances.  She submits that the
    trial judge unduly focused on Currans guilty plea in determining that a longer
    sentence was warranted in the appellants case.  Also, she contends that the
    trial judge gave insufficient consideration to the fact that the appellant was
    not the principal in the cocaine distribution chain.

[20]    We would grant leave to the appellant to appeal
    her sentence but we would dismiss the appeal.  The four-year term of
    imprisonment is within the acceptable range for like offenders, and is
    proportional to Curran's sentence.  There is no reason to interfere with the
    trial judge's exercise of discretion.  While the trial judge does reference
    Currans guilty plea in his reasons, this was not the sole basis for imposing a
    harsher sentence on the appellant.

DISPOSITION

[21]    For the reasons given above, the fresh evidence
    application and the conviction appeal are dismissed.  Leave to appeal sentence
    is granted and the sentence appeal is also dismissed.

E.A.
    Cronk J.A.

H.S.
    LaForme J.A.

P.
    Lauwers J.A.


