R. v. Alkhouri

R. v. Alkhouri Collection Decisions of the Court of Appeal Date 2000-07-27 Docket numbers C32499 Judges Doherty, David H.; Abella, Rosalie Silberman; Moldaver, Michael James Subject Criminal Decision Content DATE: 20000727 DOCKET: C32499 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. KAMIL ALKHOURI (Appellant) BEFORE: DOHERTY, ABELLA and MOLDAVER JJ.A. COUNSEL: Daniel Lawson for the appellant Catherine Galligan for the respondent HEARD: July 14, 2000 On appeal from the conviction imposed by Ouellette J., sitting with a jury, dated June 15, 1998. ENDORSEMENT [1] The appellant was charged with trafficking in cocaine and conspiracy to traffick in cocaine. He acknowledged that he handed a bag containing a substantial amount of cocaine to a person who then turned it over to an undercover officer. The appellant claimed, however, that he did not know that the bag contained cocaine. There was some evidence independent of the appellant’s own testimony that supported his position. There was also considerable evidence capable of supporting the inference that he did know that the bag contained cocaine. [2] The appellant’s lifestyle and his financial means took on some significance at trial. The defence position was described by the trial judge in the following terms: Mr. Alkhouri as you have heard from the evidence has no criminal record and according to the defense gave believable evidence. He leads a modest domestic life without any of the trappings which are laid to you by the evidence of the expert police officer who gave evidence on the trappings of a normal trafficker. [3] The trial judge put the Crown’s position in this way: The circumstantial evidence, according to the Crown, portrays him to a person living beyond his means and in possession of monies inconsistent with a person in need of social assistance. It is also suggestive of international travel, contact and communication. The accused is streetwise and not stupid, according to the Crown. [4] Shortly after the jury retired, they sent the following question to the trial judge: Is the defence attorney appointed by the court? [5] The trial judge, understandably, described this as a “most unusual question.” Even if the nature of counsel’s retainer could be admissible for some reason in some case, there had been no evidence of the nature of his retainer in this case and no one had suggested, before the jury asked this question, that the nature of counsel’s retainer had any relevance. [6] Counsel for the appellant at trial submitted that the jury should be told that the answer to their question was irrelevant. The trial judge replied “I’ve got to answer the question.” After further submissions in which counsel for the appellant and counsel for the Crown took the position that the jury should not be told whether the appellant’s lawyer was appointed by the court, the trial judge answered the question as follows: Now the answer to that is no, but I am going to say this to you. There is no evidence in that regard. You should not be considering it. It is completely irrelevant to anything that you should be looking at to determine the guilt or innocence of Mr. Alkhouri. Just get it out of your mind. You have to deal with the issues as I have related them to you and the evidence as you have heard – nothing else. Hopefully that will help you out. [7] The jury returned several hours after receiving the answer to this question with a guilty verdict. [8] On appeal, counsel for the appellant argued, and the Crown conceded, that the trial judge should not have told the jury that the appellant’s lawyer was not appointed by the court, but should have told them that the nature of counsel’s retainer was totally irrelevant. We agree. The trial judge should have told the jury first, that there was no evidence of the nature of his appointment, second, that it was totally irrelevant and third, that they should not speculate as to the nature of his appointment. [9] Given the competing positions advanced at trial, we can think of only one reason why the jury would be interested in the nature of counsel’s appointment. It must have been that the jury, or at least one of them, thought that if the lawyer was court-appointed this offered some support for the appellant’s claim that his means were very limited. On the other hand, if the lawyer was not court-appointed, at least one of the jury must have thought that this would indicate that the appellant had the money needed to retain an out-of-town lawyer for a two-week trial and, as the Crown had argued, had financial resources well beyond those available from legitimate sources.* By answering the question “no”, the trial judge may well have enhanced the Crown’s position in respect of the appellant’s financial means. [10] Unfortunately, the trial judge’s response gave the jury irrelevant and potentially prejudicial information. It did so at a time when the jury had already commenced their deliberations. Given the theories advanced at trial, we cannot say that having been given that information by the trial judge, the jury would have then ignored it as they were instructed to do by the trial judge. We are satisfied that the interjection of potentially prejudicial information at this important point in the trial process impaired the appearance of the fairness of the trial. The curative proviso cannot be applied. The appeal is allowed, the conviction is quashed and a new trial is ordered. “Doherty J.A.” “R.S. Abella J.A.” “M.J. Moldaver J.A.” _______________________________ * The jury was aware that appellant’s counsel was from Toronto. The trial was in Windsor.