Arnold Ian Kostman

During a pre-charge conference in a trial for importing cocaine, the moving party requested a jury instruction based on the Schell principle.

The requested instruction would direct the jury to acquit both co-accused if they were satisfied one committed the offence but could not determine which one.

The court dismissed the request, finding that the Schell principle only applies where there is no evidence the accused acted together.

Because there was ample evidence of joint participation and the accused were alleged to be joint principals, the instruction had no air of reality.

The accused were charged with importing cocaine after returning from Panama with new suitcases containing the drug.

At the close of evidence in their jury trial, the Crown requested that the jury be instructed on wilful blindness as a substitute for actual knowledge.

The trial judge reviewed the evidence, including the accused's interactions with a suspicious individual who helped them buy the luggage, and their failure to inspect the bags.

The court concluded there was no air of reality to the doctrine of wilful blindness on the facts, as the circumstances were not so inherently suspicious as to suggest deliberate ignorance.

The Crown's request was denied, and the jury was to be instructed only on actual knowledge.

The appellant challenged the reasons of the motion judge.

The Court of Appeal was not persuaded that any error had been shown on the facts of the case.

The appeal was therefore dismissed with costs.