R. v. B.
Ontario Superior Court of Justice
C. Hill J.
Heard: April 10 and 11, 2007.
Judgment: April 12, 2007.
(55 paras.)
Counsel:
R. Rusonik, for the Defence.
H. Akin, for the Crown.
JUDGMENT
C. HILL J.:–
INTRODUCTION
1 The accused pleaded Not Guilty to unlawfully importing about five and a half kilograms of cocaine into Canada.
2 With a series of admissions by the defence, the only justiciable matter at trial was the issue of whether Ms. Brown knew that her suitcase contained the illicit narcotic.
THE FACTS
The Drug Seizure
3 In the evening of Christmas day 2005, the accused deplaned at the Pearson International Airport from Air Canada flight #969 originating in St. Lucia. Ms. Brown had one carry-on bag and two pieces of checked luggage…
4 When Canada Customs primary officer A. Dziewa scanned the accused’s passport into the Canada Border Service Agency computer system, Sandra Brown registered as a hit or lookout status. Consequently, the inspector coded the traveller’s E311 Card as a mandatory referral for customs secondary inspection. The accused had departed Canada on December 18th.
5 During her brief interaction with the accused, Insp. Dziewa asked routine questions and, pursuant to her training, made observations of Ms. Brown’s demeanour looking for indicators, such as nervousness, portraying knowledge of possession of contraband. The inspector saw nothing indicative of such guilty knowledge.
6 At about 9:20 p.m. on December 25th, 2005, Inspector L. Singh of the Canada Customs Integrated Compliance Enforcement Team intercepted the accused on her way to retrieve her checked luggage. The inspector requested and examined the accused’s travel documentation. Insp. Singh was aware that the traveller had come up as a “hit” in their system. On her evidence, the inspector also coded the accused for referral to secondary inspection.
7 According to the accused, on account of a variety of health issues she described in her testimony, and in particular anemia, she chronically suffers from reduced energy and strength. Ms. Brown testified that she obtained a baggage cart and slid her heaviest suitcase (Exhibit #7), without lifting it, from the baggage carousel onto the cart.
8 Insp. Singh’s recall was that she next saw Ms. Brown in the secondary inspection area at about 9:32 p.m. The inspector observed that the accused had secured her checked luggage. The inspector received the answer “Yes” from the accused when she inquired whether the three pieces of luggage were hers, whether she had packed them herself, and whether she was aware of their contents.
9 Insp. Singh testified that she was alone at her counter. Ms. Brown testified that a male supervisor was in close vicinity.
10 Insp. Singh’s recall is that she had the accused first place her large black suitcase (Exhibit #7) on the counter. Ms. Brown’s recall is that the inspector initially inspected the carry-on receptacle before being directed by her supervisor to deal with the black suitcase.
11 The accused testified that because of her reduced strength she first leaned the large suitcase against the table and then pushed it along the counter edge until the weight of the receptacle landed it on the table. Insp. Singh was not questioned as to whether Ms. Brown had executed this manoeuvre with her luggage. In cross-examination, the accused agreed that while Exhibit #7, with its wheels and pull bars, was an extremely heavy suitcase she at no time made a direct lift of the luggage.
12 The inspector examined the bag’s contents. To her recall, the suitcase was quite full primarily with female clothing. Once the suitcase was emptied, on Insp. Singh’s evidence, she lifted the receptacle and concluded it should be “a lot lighter” given its emptied condition. According to Ms. Brown, the inspector stated: “It feels heavy without your clothes in it” to which she responded by shrugging her shoulders and saying, “Okay”.
13 Insp. Singh informed the court that she then probed the bottom of the suitcase with a probe she had been issued. She had no recall of assistance in this endeavour from a second customs employee. Under cross-examination, Insp. Singh agreed with her sworn discovery evidence that she had not been issued a probe and borrowed one from a colleague. Ms. Brown testified that when the inspector tried unsuccessfully to penetrate the fabric with the probe, the male officer instructed “Harder” before himself stabbing the suitcase.
14 Insp. Singh testified that Ms. Brown, unlike most passengers, made no protest at the point when her suitcase was about to be probed. In cross-examination, the inspector conceded that her prior acts of penetration of luggage may have been with a leatherman implement. In any event, the inspector described Ms. Brown as “very calm” throughout the seven to eight minutes preceding her arrest. Trained to look for indicators of guilty knowledge, the inspector observed none.
15 Insp. Singh testified that the probe revealed the possible presence of cocaine. A wipe test of sorts confirmed that suspicion. Ms. Brown testified that she saw no cocaine emerge from the probing and was dumbfounded at the announcement of the drug’s presence.
16 Insp. Singh testified that there was no visible sign to suggest that the suitcase had been altered to conceal drugs and there was nothing disproportionate about the depth of the bottom of the bag to signal an enlarged cavity. The inspector did not weigh Exhibit #7 with the traveller’s belongings or “innocent contents” in it. Her training did not suggest this should be done. She did, however, weigh the bag with the cocaine still concealed beneath the fabric securing a total weight of 15.7 kg. with the constituent contributors being 5.5 kg. of cocaine and a 10.2 kg. suitcase.
17 RCMP Const. Kim took control of the arrestee and the seized items. Within the seizure were some papers including an April 29, 2005 daytimer page (Exhibit #14C) with the writing “MJI” and a 758-area code and phone number. The authorities developed film from a camera in Ms. Brown’s luggage. The prosecution introduced thirteen photographs taken by the camera. The inventory of items catalogued as in the accused’s possession, in all her luggage, revealed an abundance of clothes including eighteen blouses, nine pair of shoes and twenty-one items of underwear.
18 Const. Kim informed the court that he and an identification officer took up to one and a half hours to dismantle and extract the cocaine from Exhibit #7. “Heavy tools” were needed. The pull-bar assembly was removed. After peeling back fabric and a panel with tape, the police discovered layers of carbon paper and black tape and four layers of clear plastic with the final plastic covering containing cocaine flat across the entire bottom of the receptacle to a depth of about one centimetre only.
19 Partial and complete fingerprints were located on various layers of plastic leading to the site of the cocaine. They were not the accused’s prints.
20 The range of value of the cocaine if sold at the street level in gram sales is $549,570. to $686,962. and if retailed at the kg. level, $176,000. to $231,000.
Ms. Brown’s Account
21 Ms. Brown was aged 27 years at the date of the alleged offence. She was employed at DuraBond as a sales coordinator earning $30,000. per year, a position she obtained in June 2005. She is still employed at DuraBond. According to the accused, in December 2005, she resided with her brother and his family. She contributed $200. a month toward a utility expense but otherwise paid no rent. Her expenses were minimal. She shopped and spent her money on clothes. In December 2005, she had little money in her bank account but had RSPs and GICs of undisclosed amounts.
22 The accused was the sole defence witness. She denied that she acted as a paid drug courier. Ms. Brown denied any knowledge or suspicion that cocaine was in her suitcase. The accused related to the court the following version of events.
23 In April or May of 2003, when employed at the International Plaza Hotel in Toronto, where she managed a business centre, while eating lunch she met Moses Jamal Ishmal. He introduced himself as an attendee from St. Lucia at a hoteliers’ conference at the hotel. The accused understood he was at that time interested in buying a hotel. He seemed interested in the history of Toronto and the accused, to her recall, talked of some of the local sites. Before the encounter concluded, the accused gave Ishmal her cellphone number.
24 A couple of days later, on Saturday, while out driving with her cousin, Ishmal called her cellphone inviting her for lunch. She responded that she could not accept but stopped by the hotel and chatted with him in the lobby for fifteen to twenty minutes suggesting Toronto sites he could visit on a warm Saturday afternoon.
25 Early the next week, Ishmal telephoned from St. Lucia and thereafter they maintained regular phone contact averaging about twice a week. Ishmal was excited about a hotel he had purchased. By Thanksgiving of 2004, the accused felt she had come to know Ishmal and that their relationship had taken on a romantic character. In Ms. Brown’s view, he “really liked” her. Ishmal wanted her to come and visit him. She declined as she had commenced a new job and could not take vacation. They remained in regular phone contact.
26 Then, in August 2005, Ms. Brown travelled to St. Lucia to meet Ishmal. She purchased a plane ticket for $769. flying through Philadelphia because it was cheaper than a direct flight. Ishmal picked her up at the airport and drove her to his hotel at Gros Islet, St. Lucia. The hotel was called MJI Hotel after its owner. At trial, the accused produced photos of the facility. The accused occupied a three-bedroom suite on a second floor converted to his personal apartment. For a few nights, she resided in a single bedroom unit before staying in Ishmal’s apartment. They had an intimate relationship. During her one-week stay they discussed having a life together and marriage. Ishmal informed her that once his renovations to the hotel were completed in May 2006 he wanted her to manage the reception area and cleaning staff.
27 After her return to Canada, the accused maintained telephone contact with the man she considered to be her lover. At times, there was daily communication. She wrote Ishmal letters. He wanted her to relocate to St. Lucia no later than May of 2006. When she returned to St. Lucia, they could plan their wedding.
28 Then, in December 2005, Ishmal told her he had a surprise for her but would not disclose its nature. The accused secured permission from her employer to take a week’s vacation. She purchased a direct flight ticket on December 15th paying $1,000. with her debit card and $169. in cash. Ms. Brown had received regular and bonus pay cheques on December 13th and 14th respectively. Copies were introduced as exhibits.
29 The accused related to the court that she packed two pieces of luggage – Exhibit #7 and a small carry-on receptacle. She packed lots of clothes not expecting to wear them all but to have them available. She denied the suggestion in cross-examination that she over-packed to justify taking a large suitcase to be outfitted with drugs. According to the accused, she likely pulled Exhibit #7 to her bedroom for packing. Her brother loaded the large suitcase into her car which she drove to her sister’s where she left her vehicle. Her brother-in-law loaded her luggage into the taxi she took to the airport.
30 Moses Ishmal picked her up at the airport in St. Lucia in the hotel van. Over the week of her stay she resided in Ishmal’s apartment. After unpacking, her Exhibit #7 suitcase disappeared. She assumed he had put the receptacle in a storage room. The “surprise” was Ishmal’s promotion of two popular musical shows scheduled for December 23rd and 24th. During the week she saw sites, accompanied Ishmal “on the road” as he finalized arrangements for the concerts, attended a Christmas festival, and spent time at the beach and pool. Ishmal paid for everything. He was kind and gentlemanly. They intended to become engaged.
31 On the accused’s final day in St. Lucia, Ishmal took her to breakfast and horseback riding. She was sad about leaving until Ishmal told her he was coming to Canada to spend New Year’s with her. She was pressed to make her flight on time. Ishmal produced the Exhibit #7 luggage when asked. She had been using her carry-on receptacle throughout the week as a beach-bag. Ishmal provided her a small gray suitcase for her soiled laundry and muddy shoes. Most of the accused’s belongings were simply tossed into Exhibit #7 as Ms. Brown was rushed. Ishmal loaded her luggage into the van and took it to the check-in counter at the airport. Her plane took off about twenty minutes later. She read her Bible on the flight to Canada.
32 Ms. Brown was in custody from December 25th, 2005 to January 3rd, 2006. The day she received bail she telephoned Ishmal saying words to the effect of “Have you noticed you haven’t heard form me?” She related to Ishmal what had happened to her. She hoped for some explanation but he barely had anything to say. Over time, there were phonecalls but when she raised the “topic” they dwindled and ended around the time of her April 23rd, 2006 birthday. According to Ms. Brown, she phoned Ishmal in early January 2007 telling him her case was coming up but he didn’t want to hear of it. She was just “looking for answers”. She was bitter. She hoped he would have a conscience and tell her even “a possibility”.
POSITION OF THE PARTIES
The Prosecution
33 The Crown’s position is that the accused was a paid drug courier fully knowledgeable of the existence of the unlawful substance in her suitcase.
34 Ms. Akin relied principally on the following:
(a) The value of the cocaine
It was submitted that the importer hierarchy would not risk letting out a cargo of the value here to an uninformed courier thereby risking the bag being loaned out on return to Canada, disposed of, or the passenger discovering the cocaine and herself stealing it or turning it in to the authorities. Anyone who had gone to the trouble of the sophisticated concealment evident in this case would never risk losing control – a paid courier allows in-transition control.
(b) The size of the suitcase and it’s “over-packed” contents
It is submitted that the quantity of clothing taken by the accused to St. Lucia far surpassed what would reasonably be taken for a one-week stay in a hot climate. It is argued that the amount of clothing taken was to justify the taking of the large suitcase destined for drug outfitting.
(c) The weight of the suitcase
The Crown submitted, based largely on Insp. Singh’s testimony, that lifting Exhibit #7, with the cocaine concealed in it, would reveal to any ordinary person a weight abnormality. Therefore, Ms. Brown must have been aware that the receptacle held contraband. Ms. Akin argued that the accused’s evidence should be disbelieved when she says she never directly lifted Exhibit #7 as well as the circumstances of the bag’s reappearance on the last day of her stay in St. Lucia.
(d) Ms. Brown’s financial situation
The prosecution submitted that the expense of the accused’s three trips in about eight months (the two trips to St. Lucia and a $500. plane ticket to London, England in May 2005 to visit family) was inconsistent with the accused’s financial means. Someone else, an importer overseer, must have paid for the St. Lucia tickets. It was argued that Ms. Brown’s financial circumstances demonstrate her “motive” to seek compensation as a paid courier.
(e) The accused’s demeanour at the airport
It was submitted that the accused’s observed calmness bespeaks guilty knowledge because she testified she was dumbfounded yet didn’t show it. Unlike most couriers, according to Insp. Singh, the accused did not protest the penetration of her suitcase.
(f) Ms. Brown’s story
Ms. Akin submitted that the accused’s entire account of being duped or set up by Ishmal is not believable. A romance developing long distance over the phone during separation from the spring of 2003 to August 2005 is said to be incredible. Pictures were taken in the December 2005 trip but none of the man Ms. Brown claimed to love. If Ishmal was wealthy and such a gentleman why didn’t he offer to buy her plane tickets? It was submitted that there is no Ishmal and that he is an invention of the accused.
The Defence
35 Turning first to the Crown’s arguments, Mr. Rusonik raised these responses:
(a) As to the value of the cocaine and the likelihood of assumed risk of shipment with an unsuspecting courier, it is said that the risk of loss in financial terms can only really be measured if one knows the cost to the transhipper or importer network. While, with seizure, there may be loss of a sales opportunity the profit loss is unknown. The thrown away overhead expense is not known. As well, it was argued that Ishmal had arranged to follow Ms. Brown to Canada in short order thereby giving him ready access to Exhibit #7.
(b) Mr. Rusonik argued that the size of the suitcase and its contents do not provide circumstantial evidence of guilt. Judicial notice, it is said, cannot be taken of the packing habits of a “usual” female traveller. Distributing items into two pieces of checked luggage on the way back to Canada would leave the cocaine to have a greater proportion of the weight of the Exhibit #7 receptacle seemingly inconsistent with the Crown theory.
(c) As to the weight of the suitcase, it was submitted that there is no reason to disbelieve Ms. Brown’s evidence as to her medical condition and the assistance she had along the way with the large suitcase. It has wheels and pull-handles. It is argued that if the accused did not perform a direct lift of the bag she would not be in any position to have an impression of abnormalcy of weight. Failure of the authorities to weigh the “innocent contents” it is said skews the weight issue as the proportionate weight of the cocaine to an empty suitcase is higher than to a packed receptacle.
(d) Ms. Brown’s finances are irrelevant to motive and to proof that she did not purchase her own tickets. She had no criminal record. She was educated and employed at a full-time job. She produced pay documentation. It cannot be said that a low-income wage earner would have a propensity to participate as a drug courier for hire.
(e) The accused’s demeanour, it is argued, actually supports an inference of innocence as two trained customs agents, making close observations of Ms. Brown, saw nothing out of the ordinary suggesting knowledge of participation in a smuggling operation.
(f) Ms. Brown’s story of a romantic liaison with Ishmal cannot be easily dismissed. The accused provided details. Long distance romances are far from unknown. The accused produced photos of the MJI Hotel and of Ishmal. Far from convenient fabrication, it is argued that Ms. Brown was successfully duped by the real importer who took advantage of her in more ways than one.
36 The defence points to the absence of the accused’s fingerprints, the presence of another’s prints, and the invisible concealment of the cocaine as earmarks of the work of a sophisticated importer – not the accused. Mr. Rusonik relies on the manner and content of Ms. Brown’s testimony as supporting her account of lack of knowledge.
ANALYSIS
General Principles
37 The court may believe all, none or some of a witness’ evidence: D.R. et al. v. The Queen (1996), 107 C.C.C. (3d) 289 (S.C.C.) per L’Heureux-Dubé J. (in dissent in the result) at 318; Regina v. Hunter, [2000] O.J. No. 4089 (C.A.) at para. 5 per curiam; Regina v. Abdallah, [1997] O.J. No. 2055 (C.A.) at para. 4,5 per Carthy and Goudge JJ.A. Accordingly, a trier of fact is entitled to accept parts of a witness’ evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: Regina v. Howe, [2005] O.J. No. 39 (C.A.) at para. 44.
38 A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 397 (S.C.C.) at 409 per Cory J.; Avetsyan v. The Queen (2000), 149 C.C.C. (3d) 77 (S.C.C.) at 85-87 per Major J. However, as recognized in Regina v. Chittick, [2004] N.S.J. No. 432 (C.A.) at para. 23-25:
It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge’s duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.
…
An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
39 It must be emphasized that mere disbelief of the accused’s evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.) v. The Queen, supra at 409. In other words, to use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: Regina v. H.(S.), [2001] O.J. No. 118 (C.A.) at para. 4-6 per curiam. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt. The obligation of W.(D.) analysis was summarized in Regina v. Minuskin (2004), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused’s evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W.(D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused’s evidence because they have a reasonable doubt as to the accused’s guilt “after considering the accused’s evidence in the context of the evidence as a whole”.
See also Regina v. Turmel, [2004] B.C.J. No. 2265 (C.A.) at para. 9-17.
40 There is no direct evidence of Ms. Brown’s involvement in the unlawful importation of cocaine. However, as I observed in R. v. McIntosh, [2003] O.J. No. 1267 (S.C.J.) at para. 43:
In crimes of unlawful possession, it is “not necessary for the prosecution to prove the required knowledge by direct evidence … it could be inferred from the surrounding circumstances”: R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, [1995] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1.
41 Circumstantial evidence is “evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred”: R. v. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.) at 172. Put differently but to the same end, “Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts”: Shepherd v. The Queen (1990), 170 C.L.R. 573 (H.C. Aust.) at 579. Accordingly, circumstantial evidence frequently involves proof of a primary fact or facts and the drawing of an intermediate factual conclusion or inference for consideration with the whole of the evidence to determine whether guilt has been established beyond a reasonable doubt.
42 Circumstantial inferences are ones which “can be reasonably and logically drawn from a fact or group of facts established by the evidence”: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. Most cases “will involve hiatuses in the evidence which can be filled only by inference”: Lameman v. Canada (Attorney General), [2006] A.J. No. 1603 (C.A.) at para. 87. “The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess”: U.S.A. v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307. The same point is made in C.P.R. Co. v. Murray, [1932] S.C.R. 112 at 117 in adopting the following dicta from Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved. Indeed, as Lord Shaw said in Marshall v. Owners of SS. Wild Rose [26 T.L.R. 608; [1910] A.C. 486, at 494.]: “The facts in every case may leave here and there a hiatus which only inference can fill.”
43 Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v. Canada (Attorney General), at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compelling inference: R. v. Munoz, [2006] O.J. No. 446 (S.C.J.) at para. 21-31. The trier of fact, of course, assesses the evidence “in light of common sense and human experience”: U.S.A. v. Huynh, at 307. The court is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence: R. v. Stewart (1976), 31 C.C.C. (2d) 497 (S.C.C.) at 506; The Queen v. Hillier, [2007] H.C.A. 13 at para. 48.
44 The trier of fact cannot be satisfied beyond a reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: The Queen v. Hillier, at para. 46.
45 In drug possession cases, the value of the illicit drug may contribute circumstantially to evidence pointing toward guilt, as stated in R. v. McIntosh, at para. 45:
The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C. C.A.) at 121 (aff’d. on appeal (1971), [1971] S.C.J. No. 42, 4 C.C.C. (2d) 566n (S.C.C.)) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).
46 The prosecution may, in appropriate cases, introduce evidence of motive as circumstantial evidence of guilt. Caution must be exercised in drawing an inference that an accused’s level of income, standing alone, supports involvement in a for-hire crime as stated in R. v. Mensah (2003), 9 C.R. (6th) 339 (Ont. C.A.) at 342-3 (leave to appeal refused [2003] S.C.C.A. No. 207:
I agree with the general proposition that evidence that an accused person has a certain level of income, or that he is in receipt of a form of government assisted income, is insufficient, in and of itself, to support an inference that the accused has a motive to commit a profit-motivated crime2. I also agree that such evidence should not be used as the basis for a disguised form of propensity reasoning.
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Note 2: The basis for this conclusion is explained in J.H. Wigmore, Evidence in Trials at Common Law, vol. II, Revised by J.H. Chadbourne (Toronto: Little, Brown and Company, 1979), at para. 392:
The lack of money by A might be relevant enough to show the probability or A’s desire to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence …
Application to Present Case
47 Sandra Brown presented as a composed witness who provided her testimony in a coherent and detailed manner. She was not shaken in cross-examination. Ms. Akin did not suggest the accused appeared as a witness unworthy of belief.
48 There is, as said, no direct evidence inculpating the accused in knowing possession of the cocaine. In my view, the circumstantial evidence does not convincingly support proof of guilt beyond a reasonable doubt.
49 The retrofit of Exhibit #7 allowing concealment of the illicit drug was not visible and because of the area of spread and minor depth of the cocaine no departure from normal was observable in the depth of the suitcase bottom. Insp. Singh, in the course of her daily employment, is used to picking up pieces of luggage and, through her enforcement experience, detecting receptacles rendered too heavy on account of concealed contraband. Ms. Brown does not have that experience. The accused was unchallenged as to her medical condition and consequential behaviour of not lifting heavy items. Exhibit #7 had wheels and pull-bars. It cannot be said that Ms. Brown’s account of assistance with her luggage and its location during her stay in St. Lucia is facially implausible.
50 Ms. Brown’s fingerprints were not on the cocaine packaging. Someone else’s were. The concealment effort is sophisticated. Industry, time and tools were necessary to extract the cocaine. I do not believe it was seriously suggested by the Crown that the accused modified Exhibit #7.
51 The accused evidenced no physical indications of guilty knowledge at the Pearson International Airport. To the contrary. She was closely observed by trained customs inspectors who made no note of demeanour consistent with guilty knowledge.
52 The prosecution’s strongest argument is the value of the cocaine. Ms. Akin, I believe, is correct in submitting that a valuable commodity of the type here would not usually be surrendered to an uninformed courier. There are too many risks of loss or difficulties in retrievability. Control, in the form of a courier knowingly complicit in the operation, provides the insurance necessary during transhipment. With the high weight of cocaine here, the cost to the front-end is less relevant than it might be in the other cases. On any view, this amount of cocaine was valuable and its loss would deny significant profit. This said, unlike so many importing cases before the courts, on the accused’s version of events, there was strong connectivity between courier and the person alleged to be the real importer. The putative importer, Ishmal, had a strong romantic connection to the courier and was to join her in Canada in late December 2005, shortly after Ms. Brown’s return. On this view of the case, the principal’s risk was dramatically reduced.
53 I am unable to take judicial notice that the amount of Ms. Brown’s clothing taken in December 2005 is so unusual as to safely permit an inference of fore-planning toward an importation scheme. The accused testimonially provided a coherent account of her relationship with Ishmal, together with certain productions, which, on the whole of the evidence, I cannot say is untrue. Those facts are entirely consistent with the accused being an innocent dupe.
54 On a final note, there is nothing about Ms. Brown’s financial circumstances which reasonably would justify concluding she was motivated to participate in a for-profit crime or that she was unable to afford her own plane tickets.
CONCLUSION
55 The accused is found not guilty and an acquittal is entered.
C. HILL J.