



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dwyer, 2017 ONCA 238

DATE: 20170322

DOCKET: C60408

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Candice Dwyer

Appellant

Breana Vandebeek, for the appellant

Surinder Singh Aujla, for the respondent

Heard and released orally:  March 20, 2017

On appeal from the conviction entered on January 12, 2015
    by Justice Sproat of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was convicted of importing cocaine into Canada.  She
    appeals conviction only.

[2]

There is one ground of appeal.

Did the trial judge err in refusing the defence request for a
    good character instruction?

[3]

The adequacy of a jury instruction is measured by reference to the
    specific issues raised in the case and the evidence adduced by the parties. 
    This was a one issue case  had the Crown proved beyond a reasonable doubt that
    the appellant knew there was cocaine in her purse when she entered Canada at
    Pearson Airport?

[4]

The appellant testified and denied that she knew the cocaine was in her
    purse.  She explained that her friend had given her the purse shortly before
    she left St. Lucia.  It was the defence position that this person had
    befriended the appellant intending to use her to smuggle two kilograms of
    cocaine into Canada.

[5]

In her evidence in-chief, the appellant indicated that she had no
    criminal record and described her positive educational and employment
    background.  She was not cross-examined on these matters.

[6]

The trial judge instructed the jury that the Crown was obligated to
    prove that the appellant knew that the drugs were in her purse.  He told the
    jury that the Crown had to prove knowledge beyond a reasonable doubt and that
    the jury should consider all of the evidence relevant to that issue, including
    the appellants evidence.  The trial judge then specifically highlighted five
    areas of the evidence relevant to knowledge at the same time emphasizing to
    the jury that it could consider other parts of the evidence referred to by
    counsel.  The five areas highlighted by the trial judge included the following:

the evidence of Ms. Dwyer that she had no criminal record and
    was employed at this time in her own business

[7]

In our view, the jury would have understood that the appellants
    positive antecedents and absence of any criminal record could support the
    inference that she did not know that she was bringing cocaine into Canada.  The
    trial judges instruction that her absence of criminal record and background
    were relevant to knowledge could not be taken by the jury in any other way.

[8]

Later in his instruction, the trial judge summarized the appellants
    evidence, including her background and her evidence that she had no criminal
    record.  Shortly afterwards, in summarizing the position of the defence, the
    trial judge indicated that the defence position that the appellants evidence could
    be relied on was supported in part by the evidence of her background.  He
    indicated:

Ms. Dwyers testimony in court accounted for all the pieces of
    the evidence.  She was cooperative with the police at the time of the
    investigation.  Her evidence in court was challenged, but uncontradicted.  It
    was both internally and externally consistent.  She was also gainfully employed
    at the time, and has no criminal record.  The defence says that Ms. Dwyer was
    simply a truthful witness.

[9]

In our view, the trial judge properly treated the evidence of the
    appellants background and absence of any criminal record as relevant to the
    issue of knowledge and the appellants credibility.  The reference to the
    evidence within the context of the instruction on knowledge was appropriate
    given the nature of the case and the fact that knowledge was the only live issue
    at trial.  A separate, more general, character evidence instruction was
    unnecessary, probably redundant, and potentially confusing.

[10]

It follows from our assessment of the charge that we cannot accept the
    argument that trial counsel was somehow misled in making his closing
    submissions by the contents of the email provided by the trial judge outlining
    his initial reasons for declining to give a character evidence instruction.  We
    repeat, no character evidence instruction was necessary given the instruction
    on knowledge.

[11]

We should not be taken from these reasons as accepting that an accused
    who testifies that he or she has no criminal record necessarily puts his or her
    character in issue for all purposes.  In our view, that is an open question in
    this court.

[12]

The appeal is dismissed.

Doherty J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


