Ontario Criminal


Appeal

FRESH EVIDENCE
Trial judge outlined concerns about implausibility of accused’s testimony

Accused appealed her conviction for importing cocaine. Charge of importing related to accused’s arrest when she returned to Canada from week in Panama. About two pounds of cocaine were discovered in her suitcase. Accused maintained that she had no knowledge that cocaine was in her possession. Accused travelled to Panama with man who paid her $2,000 to accompany and entertain him for week. That man also paid for her airfare and accommodations. According to accused, while in Panama, she and man she was with met up with woman named “Nancy” who spent time with them during their stay there. Prior to accused’s return to Canada, that woman asked accused to carry some clothes and souvenirs for her back to Canada and accused agreed. Accused testified that as she and man were packing their suitcases, he asked her to transport bottles of what appeared to be health care products and accused agreed. Upon arrival in Canada, accused was searched at customs. Cocaine was discovered in health care bottles and accused was arrested. Accused sought to admit fresh evidence, which consisted of photographs of woman said to be “Nancy” taken from camera found in accused’s possession at time of her arrest. Accused asserted that it is relevant because trial judge disbelieved her testimony about Nancy, including fact of Nancy’s existence, and this was significant reason why he rejected her evidence as whole. Application denied. Rather than disbelieving accused on basis that Nancy did not exist, trial judge considered accused’s entire account of her relationship with Nancy. Trial judge outlined his concerns about implausibility of accused’s testimony relating to Nancy: accused made no inquiry and had no knowledge of Nancy’s prior connection to man accused was with in Panama, she was unaware of Nancy’s surname, she gave no thought to effect of taking shoes and other items from Nancy on maximum weight allowance for her luggage, and vagaries of any plan to return items to Nancy. Court agreed with Crown that nature of fresh evidence, photographs of woman only accused could identify as Nancy, related to non-essential aspect of accused’s testimony at trial. Nancy was merely part of accused’s story that trial judge found did not make sense. Photograph of woman purporting to be Nancy would not have rectified implausibility of accused’s testimony. Trial counsel, in cross-examination on her affidavit, said that she made decision not to tender photographs into evidence at trial as it was her view that they were unnecessary and of no value. Trial counsel was correct.

R. v. Harris (Oct. 27, 2014, Ont. C.A., E.A. Cronk J.A., H.S. LaForme J.A., and P. Lauwers J.A., File No. CA C55199) Decision at 98 W.C.B. (2d) 706 was affirmed. 117 W.C.B. (2d) 369.

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