



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morgan, 2021 ONCA 812

DATE: 20211116

DOCKET: C68281

Doherty, Pardu and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Karmar Morgan

Appellant

Matthew R. Gourlay and Sarah Strban,
    for the appellant

Jeremy Streeter, for the respondent

Heard: November 8, 2021

On appeal from the conviction entered on
    February 5, 2020, and the sentence imposed on May 19, 2020 by Justice Bernd E. Zabel
    of the Ontario Court of Justice.

Doherty J.A.:


[1]

The appellant appeals his conviction on a charge
    of possession of cocaine for the purposes of trafficking. He also seeks leave
    to appeal and, if leave is granted, appeals from the sentence of 53 months
    imposed by the trial judge after the trial judge had given the appellant credit
    for 7 months pretrial custody.

[2]

The Crowns case at trial was circumstantial but
    formidable. The defence called a witness, Christopher Small, who testified that
    the drugs in issue belonged to him and not to the appellant. The Crown
    maintained both Small and the appellant were in possession of the cocaine.

[3]

The appellant did not testify.

The Conviction Appeal

[4]

Counsel advances a single ground of appeal in
    oral argument. He contends the trial judge erred in permitting the Crown to
    cross-examine Mr. Small on his knowledge of his rights under s. 13 of the
Charter
and s. 5 of the
Canada Evidence Act
. Those provisions provide a
    witness with limited immunity from the use, in subsequent proceedings, of any
    incriminating evidence given by that witness.

[5]

Counsel for the appellant further submits the
    trial judge improperly used the cross-examination to impeach Mr. Smalls
    credibility.

[6]

The Crown cannot use the fact that a witness has
    invoked the protection of s. 13 of the
Charter
or s. 5 of the
Canada
    Evidence Act
to discredit the testimony of that witness. Nor can a witness
    be cross-examined about his or her understanding of the rights and protections
    afforded by s. 13 or s. 5. Finally, a trial judge cannot discredit a witnesss evidence
    because the witness was aware of the protections afforded to the witness by s.
    13 and s. 5 when the witness testified: see
R. v. Jabarianha
, 2001 SCC
    75;
R. v. Dudhi
, 2019 ONCA 665;
R. v. Swick
(1997), 35 O.R.
    (3d) 472 (C.A.).

[7]

At the outset of his examination-in-chief, Mr.
    Small invoked the protection of s. 13 of the
Charter
and s. 5 of the
Canada
    Evidence Act
. At the very end of his examination-in-chief, the following
    exchange occurred with counsel for the appellant:

Q. Okay. Alright. Why are you here today
    testifying and telling us that those were your drugs in the room and that the
    others didnt know about them?

A. Because I think  I dont think nana Mainoo
    or Andre [the appellant] or Romeo should go to jail for whats mine. And I feel
    that I  I dont want to  not even feel, I know that I am the reason why they
    came to the house, right? Im the reason why they came to the house? Im the
    reason why they were there. And I didnt want  I dont want them to go to jail
    for something thats not their own, right?

[8]

In cross-examination the Crown asked Mr. Small
    about his stated reason in examination-in-chief for coming forward and taking
    responsibility for the possession of the cocaine:

Q. Right. And
    you said  you told us that today youre here because you dont  and I want to
    use your words  I dont want them to go to jail, right? For something thats
    not theirs? Right.

A. Yes.

[9]

The Crown followed these questions by asking Mr.
    Small whether he had spoken to the police about taking responsibility for the
    cocaine. Mr. Small said he had not. Crown counsel next asked whether Mr. Small
    had spoken to his lawyer about not wanting his friends to go to jail for
    something he had done. Crown counsel made it clear that he was not interested
    in any details of any conversation between Mr. Small and his lawyer. Mr. Small
    replied:

A.

Yes. I  I said to  I said to Andre [the appellant] to tell his
    lawyer that I would testify and
I would talk to my lawyer
    to see if I would be protected if I testified to say  to tell the truth
[Emphasis added.]

[10]

The Crown followed with questions about Mr.
    Smalls belief that he would be protected from prosecution:

Q. So you know that today youre protected in
    terms of being prosecuted for the drugs if you give this evidence? Thats a
    decision you made before you got here today, correct?

A. Yes.

Q.
Okay. If I were to
    suggest to you that had you not been guaranteed that protection you wouldnt be
    here today, is that fair
?

A.
If I wasnt
    guaranteed, I wouldnt come and tell the court that the drugs were mine
.

Q. Right. So you being here today, while its
    not necessarily just wanted to see your friends not go to jail.

A. Yes.

Q. You dont want to see yourself go to jail
    for this?

A. Exactly. [Emphasis added.]

[11]

At a subsequent point in his cross-examination,
    Mr. Small reiterated the claim that he was testifying because it was the right
    thing. The following exchange then occurred with Crown counsel:

Q. Right. But you were only going to do the
    right thing if the right thing didnt affect you?

A. Kind of, yes.

[12]

The defence chose to lead evidence during Mr.
    Smalls examination-in-chief as to his motive for testifying and taking
    responsibility for the cocaine. The evidence led by the defence presented Mr.
    Small in a positive light and was no doubt intended to enhance his credibility
    as a witness.

[13]

The questions asked by Crown counsel flowed
    directly from the evidence given by Mr. Small in-chief as to his motive for
    testifying. Those questions challenged the veracity of Mr. Smalls explanation
    for coming forward as a witness. His answers to Crown counsels questions put
    his motives in a significantly different light. On Mr. Smalls answers in
    cross-examination, he was only prepared to do the right thing if doing so
    would have no negative impact on him. Based on the answers given in cross-examination,
    a trier of fact could fairly conclude that Mr. Small had been far less than
    frank and honest in his examination-in-chief when explaining why he had come
    forward to take responsibility for possession of the cocaine. Mr. Smalls lack
    of candor when explaining his motive for testifying was relevant to the
    assessment of his credibility.

[14]

The trial judge did not find Mr. Small to be a
    credible or reliable witness. In the course of his assessment of Mr. Smalls
    evidence, the trial judge referred specifically to Mr. Smalls failed attempt
    during his examination-in-chief to present himself:

As displaying a noble purpose by testifying so
    that innocent persons wouldnt be wrongfully convicted.

[15]

The trial judge referred to some of the passages
    from the cross-examination of Mr. Small quoted above. Those passages supported
    the inference that Mr. Smalls reason for testifying was far less noble than
    he had suggested in his examination-in-chief. It was open to the trial judge to
    treat Mr. Smalls answers in cross-examination as tantamount to an admission
    that he had been less than forthcoming in his examination-in-chief. The trial
    judges use of Mr. Smalls answers went no further than that.

[16]

The questions posed by the Crown on
    cross-examination were not improper, given the evidence advanced in-chief. The
    trial judge did not misuse the answers to those questions, but rather used
    those answers in considering whether Mr. Smalls evidence in-chief was
    misleading and therefore adversely affected his credibility.

[17]

We would not give effect to this ground of
    appeal.

[18]

The appellant advanced other grounds of appeal in
    his factum, but counsel did not pursue them in oral argument. We have
    considered those grounds of appeal. None warrant the intervention of this
    court. There was ample reason to reject Mr. Smalls evidence. The trial judge
    identified some, but by no means all, of the problems associated with his testimony.
    Setting aside Mr. Smalls testimony as incredible, the case against the
    appellant was overwhelming.

[19]

The conviction appeal is dismissed.

The Sentence Appeal

[20]

Given the large quantity of cocaine involved
    (half a kilogram), the effective sentence of 5 years imposed by the trial judge
    cannot be described as excessive:
R. v. Bryan
, 2011 ONCA 273.

[21]

The appellant is subject to deportation upon
    release from custody. Counsel submits this justifies a reduction of the
    sentence to 3½ years. We disagree. The court is not asked to mitigate a
    sentence to avoid a significant collateral consequence:
R. v. Pham
,
    2013 SCC 15. Instead, the court is asked to treat the possible immigration
    consequences of the appellants conviction as a mitigating factor on sentence.
    Counsel does not suggest that a sentence of less than six months, which would
    avoid the immigration consequences, is appropriate here, but instead argues
    that what would otherwise be an appropriate sentence should be reduced in light
    of the appellants possible deportation when released from custody.

[22]

No one knows what immigration consequences will
    flow when the appellant is released. More to the point, those consequences are
    not dictated by the
Criminal Code
or the applicable principles of
    sentencing, but are instead reflective of principles and policies applicable to
    immigration. The trial judge did not err in failing to reduce the period of
    incarceration imposed to take into account the risk the appellant would be
    deported when released.

[23]

Counsel also argued the trial judge failed to
    consider the impact of COVID-19 when imposing sentence. The appellant has been
    on bail and has served very little of his sentence to this point in time. It is
    unclear what the impact of COVID-19 will be on those in custody on a going-forward
    basis.

[24]

In any event, the trial judge did recognize the
    reality of COVID-19 as it existed at the time of sentencing. He took that
    reality into account in imposing an effective sentence of 5 years.

[25]

Leave to appeal sentence is granted but the
    appeal is dismissed.

Released: November
    16, 2021 DD

Doherty J.A.

I agree G. Pardu J.A.

I agree Thorburn J.A.


