



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Crocker, 2018 ONCA 600

DATE: 20180628

DOCKET: C64131

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Penny Lee Crocker

Appellant

John Fennel, for the appellant

Ghazala Zaman, for the respondent

Heard: June 25, 2018

On appeal from the conviction entered on September 22,
    2015 and the sentence imposed on June 5, 2017 by Justice Dino DiGiuseppe of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals her convictions of possession of morphine and
    possession of morphine for the purpose of trafficking, as well as the sentence
    of imprisonment of eight months imposed upon her.

The Background

[2]

Police executed a
CDSA
warrant at the residence the appellant
    shared with her husband. In the appellants purse, they found over 200 morphine
    pills. The pills were in small bags embossed with spades and marijuana leaves.
    There were ten pills in each bag. Similar empty bags were located elsewhere in
    the house.

[3]

The Crown contended at trial that the appellant intended to sell the
    pills. To establish this was her purpose, the Crown relied on expert evidence
    that the quantity of pills and the manner in which they were packaged was
    consistent with trafficking. The Crown also relied on evidence given by several
    police officers about things the appellant did and said on discovery of the
    pills and arrest. This included:

i.

her denial that her husband had anything to do with it;

ii.

her acknowledgment that she had no prescription for the pills;

iii.

her statement that she paid $900 dollars for the pills; and

iv.

her admission that she sold the pills for $20 each.

[4]

The defence advanced at trial, based on the evidence of the appellant,
    her husband and their friend, Jerry Rojic, was that the pills belonged to Rojic
    who had a prescription for them. The appellant claimed that she was holding the
    pills for Rojic to protect his daughter who was a drug addict. The packaging
    was a gag gift her husband had received for a previous birthday. The amount in
    each package was doled out for Rojics use in accordance with his prescription.

The Appeal from Conviction

[5]

On the appeal from conviction, the appellant argued that the trial judge
    erred in his assessment of Rojics evidence. In particular, the appellant says
    that the trial judge erred by:

i.

failing to
    take into account Rojics prior consistent statements to the police in
    assessing his credibility;

ii.

failing to
    provide sufficient reasons for rejecting Rojics testimony;

iii.

rejecting Rojics testimony
    based on misapprehensions of his evidence; and

iv.

failing to consider the
    notorious fact that drug-addicted family members and friends steal
    prescriptions from those who have prescriptions in assessing the plausibility
    of the scheme advanced by way of defence.

[6]

In our view, the appeal from conviction fails.

[7]

Rojics prior consistent statements could not be used to bolster the
    credibility of his in-court testimony. No exception to the general exclusionary
    rule was engaged but, even if an exception permitted their reception, it did
    not permit the use now advanced. Nor is the claim that the statements were
    receivable as declarations against penal interest sustainable. Among other
    things, the declaration was not against Rojics interest nor did it render him
    vulnerable to any penal consequences, immediate or remote.

[8]

In our view, the trial judge provided several cogent reasons for rejecting
    Rojics evidence. Each was firmly grounded in the evidence adduced at trial and
    not based on any misapprehensions of that evidence. His conclusion that the
    arrangement which constituted the core of the appellants defence was
    implausible was plainly open to him on the evidence adduced at trial.

[9]

The appeal from conviction is dismissed.

The Appeal from Sentence

[10]

The
    appellant also appeals sentence. She says that the trial judge erred in failing
    to properly take cognizance of
Gladue
principles in determining the
    sentence he imposed. In the result, the sentence imposed, according to the
    appellant, fails to consider restorative justice options and fails to respect
    the fundamental principle of proportionality.

[11]

In
    our view, the trial record furnishes no support for the appellants complaints.

[12]

The
    trial judge explicitly acknowledged the need to consider
Gladue
principles and adjourned sentencing proceedings to allow counsel to obtain the
    necessary documentation. As it turned out, neither Aboriginal Legal Services
    Toronto nor the Thunder Bay Indian Friendship Centre could confirm the
    appellants Aboriginal ancestry, thus could not prepare a report describing how
    factors specific to the appellants Aboriginal background may have played a role
    in bringing her before the court.

[13]

The
    trial judge was keenly aware of the appellants difficult upbringing and her
    personal circumstances. These factors occupied a place of prominence in the
    sentencing decision which resulted in a sentence well below the range proposed
    by the Crown. There was no evidence on sentence that any restorative justice
    options were available.

[14]

The
    sentence imposed was fit, if somewhat lenient. It reflects no error in
    principle, no consideration of any irrelevant principle or factor, no failure
    to take into account a relevant factor and no improper emphasis on any relevant
    objective, principle or aggravating or mitigating factor.

[15]

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

David Watt J.A.
G. Pardu J.A.
L.B. Roberts J.A.


