Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Tanya Marie Trudeau
Before: Justice P.T. O'Marra
Heard on: February 11 and 12, 2019
Reasons for Judgment released on: December 1, 2020
Counsel
J. Geiger — counsel for the Crown
E. Willschick — counsel for the accused Tanya Marie Trudeau
Judgment
Introduction
1Ms. Trudeau is charged with importing into Canada a controlled substance, namely cocaine, on May 22, 2017, contrary to section 6(1) of the Controlled Drugs and Substances Act.
2The Crown called the following officers from the Canada Border Security Agency: Secondary Border Security Officers Santos, Haist and Smith. The Crown also called RCMP Constable Horwood. The Defence called Ms. Trudeau.
The Evidence at Trial
The Search
3On May 15, 2017, Ms. Trudeau and her boyfriend, Justin Landry, travelled to Rio de Janeiro, Brazil. On May 22, 2017, at 6:00 am, Ms. Trudeau and Mr. Landry returned to Lester Pearson Airport on Air Canada flight AC091 from Sao Paulo, Brazil.
4At 6:43 am, Ms. Trudeau and Mr. Landry were directed to secondary inspection. They arrived at Border Security Officer (hereinafter referred to as "BSO") Santos' counter for inspection of their luggage.
5Ms. Trudeau approached with her luggage cart that contained five (5) pieces of luggage. BSO Santos directed Mr. Landry to have a seat while he examined Ms. Trudeau's luggage. In response to BSO Santos' questions, Ms. Trudeau stated that she was self-employed as a hairstylist, she had purchased her airline ticket with cash, and that she had stayed at the Windsor Excelsior Hotel in Rio. After BSO Santos confirmed that the luggage on the cart was hers, Ms. Trudeau placed the following bags on his counter: a small purple suitcase, a large black suitcase, a small blue and white handbag, a black handbag and a blue and grey handbag. Ms. Trudeau confirmed that she had packed the bags and that she was aware of their contents. The first suitcase contained clothing which he removed. BSO Santos conducted an IONSCAN of the empty suitcase. The IONSCAN is designed to detect contraband. The scan was negative. While he conducted the test BSO Santos asked Ms. Trudeau whether or not there was any cocaine in her luggage. According to BSO Santos, Ms. Trudeau said "no" and then looked down and to her left. In response to the question whether or not she had used cocaine, Ms. Trudeau admitted that she had used cocaine before Christmas.
6The second bag that BSO Santos inspected was the large black suitcase. The bag contained primarily female clothing. BSO Santos conducted an ion test which tested positive for cocaine. The bottom of the empty suitcase was unusually heavy and felt bumpy. It turned out that there was a large organic mass observed on the X-ray.
7At 7:14 am, Ms. Trudeau was arrested for importing a narcotic into Canada. She was provided her rights to counsel and was cautioned. The custody of Ms. Trudeau was turned over to BSO Smith and eventually to the RCMP. Ms. Trudeau was cooperative throughout the process.
8Further investigation revealed that the large mass secreted in the lining of the suitcase was 3,522 grams of cocaine. The purity of the liquid cocaine was 85% which equaled 2,993.7 grams of pure cocaine.
9The value of the cocaine in the suitcase was between $134,716 and $329,307 depending on the manner in which the cocaine was sold or trafficked.
10The weight of the suitcase, including the drugs and the clothing, was 9.7 kilograms.
11Mr. Landry arrived with two (2) pieces of luggage. As Ms. Trudeau was being examined, BSO Haist arrived in secondary to inspect Mr. Landry's luggage. Mr. Landry identified his two (2) suitcases. In response to BSO Haist's question to Mr. Landry, Ms. Trudeau stated that they had packed their suitcases together. Shortly after his arrival, BSO Haist learned that Ms. Trudeau had been arrested for importing. He then arrested Mr. Landry as a "co-conspirator". BSO Haist examined the larger of the two (2) suitcases. After he emptied the suitcase, BSO Haist detected a chemical smell emanating from the suitcase. Upon closer inspection he found a false side. An X-ray disclosed a similar anomaly. BSO Haist discovered 3,430 grams of liquid cocaine within the suitcase. At 8:24 am, Mr. Landry was arrested for importing cocaine.
12RCMP Constable Horwood was the Exhibit Officer in the investigation. He took control of the two (2) suitcases, the contents, passports and cellphones. RCMP Constable Horwood was responsible for the extraction of the liquid cocaine from each plastic bag that was secreted in the sides of the two (2) suitcases. He was assisted by forensic photographer Marta Hryciuk. She was assigned to photograph the dismantling of the seized suitcases. Both suitcases contained bag tags that were labelled "Landry/JustinP". The brand of both suitcases was "Airpremium". The two (2) suitcases were a match. The suitcase that was in Mr. Landry's possession primarily contained men's clothing.
The Passports
13A review of Ms. Trudeau's passport showed that it was issued on August 24, 2016. Since the date of issue, according to the passport stamps, Ms. Trudeau had taken the following excursions out of Canada:
- From August 26, 2016 until September 2, 2016 to the Dominican Republic.
- From December 14, 2016 until December 21, 2016 to the Dominican Republic.
- Entered Grenada on March 20, 2017 (length of stay unknown).
- From May 15, 2017 until May 21, 2017 to Brazil.
14A review of Mr. Landry's passport, which was issued on the same day as Ms. Trudeau's passport, disclosed the same ports of entries, arrival and departure dates as disclosed in Ms. Trudeau's passport.
The Travel Itinerary
15Ms. Trudeau's travel itinerary was filed and marked as Exhibit #9. The itinerary indicated that on May 2, 2017, Ms. Trudeau purchased two return airfare tickets to Brazil from Toronto and accommodations at the Windsor Excelsior for six (6) nights (May 15, 2017 until May 21, 2017). The document indicated that Ms. Trudeau paid $5,408.00 in cash for the trip for two travellers. Ms. Trudeau's signature was found in two (2) places on the itinerary. She initialled the itinerary eight (8) times. Neither Mr. Landry's signature nor his initials were found on the itinerary. However, "Justin Landry" was written in on the last page as a person the travel agency could disclose Ms. Trudeau's travel plans to.
16That was the end of the Crown's case.
17Ms. Trudeau testified in her own defence. There were no other defence witnesses.
The Relationship
18Ms. Trudeau testified that she is 47 years old. In 2010, she met Mr. Landry. They were in a relationship at the time of their arrest. However, the relationship was in trouble around this time. Mr. Landry had recently moved into Ms. Trudeau's home located in Garson, Ontario. However, in the past they had lived at various addresses. In August 2016, Ms. Trudeau rented a house in Garson. Ms. Trudeau testified that there were "trust issues" due the fact that Mr. Landry had slept with her cousin. There was an argument over this leading to Mr. Landry being criminally charged. She claimed that her love for him was never the same. In cross-examination, Ms. Trudeau testified that their relationship was "rocky" for the previous three (3) years.
The Travel Arrangements
19Around the time that Ms. Trudeau, her family and Mr. Landry moved to Garson, Mr. Landry wanted to re-build the relationship. Ms. Trudeau testified that Mr. Landry suggested that they go to Brazil to get married. In direct examination, Ms. Trudeau stated that Mr. Landry surprised her with this idea.
20In cross-examination, Ms. Trudeau testified that Mr. Landry suggested Brazil for their wedding destination after Christmas 2016. Ms. Trudeau never questioned Mr. Landry about the reason he wanted to travel to Brazil. She testified that she was just happy and excited to be going on a trip. According to Ms. Trudeau, she was not involved in any of the planning for the trip. Mr. Landry applied for a travel visa approximately one (1) week before they departed. Ms. Trudeau testified that Mr. Landry paid for the trip in cash and that she was with him at the travel agency in Toronto. However, she could not recall the name of the travel agent in her direct examination.
21On the date of their departure, Ms. Trudeau testified that they drove to Toronto in their car. She brought two (2) well-worn suitcases. One suitcase was smaller than the other. According to Ms. Trudeau, the large suitcase was often used to transport her hairstyling equipment for her mobile salon. Ms. Trudeau confirmed that they stayed at the Windsor Excelsior and shared a room.
22Ms. Trudeau confirmed that they never did get married on the trip as Mr. Landry did not have a ring. Apparently, that caused tension during the trip as Ms. Trudeau felt that Mr. Landry did not wish to marry her.
Ms. Trudeau's and Mr. Landry's Financial Situation
23Ms. Trudeau has two (2) daughters, a son and three (3) grandchildren. The family lived together. Ms. Trudeau described her occupation as a 'mobile hairstylist'. Ms. Trudeau mainly served the Aboriginal population by driving to her clients' homes to provide her services. She estimated that her income was $2,500 after a busy month. If she did not have a busy month, she estimated that she earned approximately $800-$1,500 per month. On average, Ms. Trudeau testified that her monthly income was approximately $1,500-$2,000. She testified that one of her daughters was receiving $2,000 in government assistance. Ms. Trudeau testified that the household expenses for seven (7) people was approximately $2,000. Mr. Landry contributed to the purchase of cigarettes and the car expenses through his unemployment insurance payment. In the summer of 2015, Mr. Landry had been laid off from his job with a local mining company. Ms. Trudeau testified that Mr. Landry had received a severance package. According to Ms. Trudeau, Mr. Landry supplemented his income by selling refurbished rock drills. She indicated that Mr. Landry once sold one for $1,500. Ms. Trudeau testified that she and Mr. Landry were able to make ends meet "almost definitely".
Ms. Trudeau's Travel History
24Ms. Trudeau's and Mr. Landry's passports detailed three (3) trips to the Caribbean that they had taken between August 2016 and May 2017. The two (2) trips in August and December 2016 to the Dominican Republic, according to Ms. Trudeau, were for destination weddings. However, she only paid for her airfare as their rooms were compensated as part of her fee for working for the bride and the bridesmaids. Mr. Landry paid his own way on both trips. The trip to Grenada in March 2017 was to meet her former employer and his common law partner. This trip cost approximately $5,000 which Ms. Trudeau split with Mr. Landry.
The Stay in Rio de Janeiro
25In direct examination, Ms. Trudeau testified while they were in Rio, she shopped and visited many street vendors. She purchased a fair amount of cheap clothing, including children's clothes and sunglasses for herself.
26In cross-examination, Ms. Trudeau was pressed about what she and Mr. Landry planned to do while in Rio. She testified that one of the attractions that she wanted to visit was the Holy Redeemer statue (aka Christ the Redeemer). As well, she wanted to experience the culture and watch the surfers. Ms. Trudeau conceded that while they were in Rio, she never visited any tourist attractions. She testified that they often walked around the city, and "saw the people and the culture". The only tourist site that Ms. Trudeau saw was a "huge graveyard" that they walked by. She did not recall any other famous landmarks. They did not go on any day trips, tours or excursions. Basically, Ms. Trudeau testified that they walked around and just took in the city.
27When Ms. Trudeau was cross-examined in regards to the cuisine and restaurants, she could only describe that she ate "local food", however, she could not recall the names of any local dishes. She testified that on one occasion they ate lobster in their hotel room. On another occasion, they ate at a "burger joint" on the beach. Beyond these two meals, Ms. Trudeau could not recollect any other locations for meals. She testified that generally they ate at huts situated on the beach.
The Purchase of Two (2) Suitcases in Rio and the Last Night in Rio
28Ms. Trudeau testified in her direct examination that they spotted cheap luggage sold by a street vendor. She felt that the luggage looked more "durable" than the suitcases that she brought to Rio. Her luggage was worn out due to transporting her hairstyling equipment. She felt that the new suitcases would be better suited to store her equipment. Initially, she did not purchase the suitcases as the price was too high. Ms. Trudeau testified that the day before their departure, however, they purchased the two suitcases for $50.00 each. They paid with American currency.
29In cross-examination, Ms. Trudeau testified that they bought the suitcases later in the afternoon. According to Ms. Trudeau, the suitcases were taken to the hotel room but did not recall where in the room the suitcases were placed. Ms. Trudeau testified that she was uncertain if they had dinner that night. She recalled that after they left the hotel they just sat on the beach and smoked. It was dark and late. Later in her cross-examination, Ms. Trudeau recalled that they did have dinner somewhere on the beach, however, she could not be more specific. Ms. Trudeau agreed in her testimony that from the time they purchased the two (2) suitcases and the time to depart on their flight was approximately eighteen (18) hours.
30In cross-examination, Ms. Trudeau stated that when they returned to the hotel that evening, they "'might" have played dice. She said that before she went to bed, she went up to the hotel roof to smoke. Ms. Trudeau estimated that she was on the roof for approximately fifteen (15) minutes and admired the view of the Holy Redeemer statute. Then she went to bed.
Packing to Leave
31In examination-in-chief, Ms. Trudeau testified that the morning of their departure, she woke up and showered. After, she packed her new suitcase. She went down for breakfast and waited for Mr. Landry to join her. After breakfast she claimed that they both went up to the roof and smoked. Mr. Landry left Ms. Trudeau and returned to the room in order to pack his suitcase. Ms. Trudeau testified that at one point she was going to pack Mr. Landry's suitcase and put a few items inside his suitcase, but he insisted on packing his own suitcase. Ms. Trudeau testified that Mr. Landry was "OCD" and would not permit her to touch any of his belongings.
32In examination-in-chief, Ms. Trudeau maintained that Mr. Landry put the suitcases on a hotel baggage cart and placed the suitcases in the taxi. As well, he pushed the suitcases on the airport luggage cart and checked their luggage. Ms. Trudeau testified that she only handled her makeup bag and a neck massager.
33In cross-examination, Ms. Trudeau testified that after breakfast she remained on the roof for approximately one (1) hour alone and had a few drinks while Mr. Landry packed his suitcase.
34In cross-examination, Ms. Trudeau confirmed that she packed her own suitcase after she showered that morning. She recalled that before packing, Mr. Landry had put the new suitcases on the bed. She testified that she did not notice anything strange or unusual about the suitcase. She testified that she did not recall whether she ever lifted her packed suitcase. However, she admitted that she may have "pulled it". She claimed that after she returned from the rooftop the suitcases were by the door. She watched Mr. Landry place both suitcases on the hotel luggage cart. Ms. Trudeau testified that she never handled the suitcases at the airport.
35In cross-examination, Ms. Trudeau agreed that after she returned to Canada that she planned to use both suitcases to pack her hairstyling equipment for her mobile hair salon.
The Arrival at Pearson
36In cross-examination, Ms. Trudeau testified that she did not know if she said "no" and looked away in response to BSO Santos' question whether or not she had cocaine in her suitcase. She testified that it was "silly" that she averted her eyes in order to conceal her knowledge that cocaine was in her suitcase.
37In cross-examination, Ms. Trudeau testified that Mr. Landry picked up her suitcase and put it on the inspection counter. She adamantly disagreed with BSO Santos' testimony that she picked up and placed her suitcase on the inspection counter.
38In cross-examination, Ms. Trudeau denied that she told BSO Haist that they both packed the suitcases together.
Post Arrest
39After Ms. Trudeau was released on bail and returned home. She claimed that while she was packing up Mr. Landry's belongings, she came across a syringe and empty capsules in his jacket pocket. Ms. Trudeau testified that this shocked her. She did not know what the capsules had contained.
The Issue
40The main issue in the trial is whether the Crown has established beyond a reasonable doubt that Ms. Trudeau knew that the suitcase(s) contained cocaine.
The Position of the Parties
41The Crown submits that the circumstantial evidence establishes beyond a reasonable doubt that Ms. Trudeau knew that her suitcase contained cocaine. The Crown urges me to reject Ms. Trudeau's explanation and that I should not have a reasonable doubt. The Crown argues that Ms. Trudeau was part of a joint criminal venture with Mr. Landry to import cocaine into Canada. Finally, the Crown submits that there is no reasonable inference that can be drawn from the evidence that Mr. Landry was responsible for secreting liquid cocaine into Ms. Trudeau's suitcase without her knowledge. To do so, according to the Crown's written submissions, would require the court "to rely on supposition or conjecture, flowing from a purely hypothetical narrative for which there is no evidence".
42The Defence argues that there are other plausible theories and other reasonable inferences that are inconsistent with Ms. Trudeau's guilt. The Defence submits that there is no evidence that Mr. Landry was not responsible for surreptitiously secreting, into the panel of Ms. Trudeau's suitcase, liquid cocaine. Therefore, this is an available inference which could acquit Ms. Trudeau.
Credibility of Ms. Trudeau
43The leading case on assessing credibility and the standard of proof is R. v. W.D., 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397.
44I do not accept the evidence of Ms. Trudeau. There are a number of reasons why; including:
(a) Ms. Trudeau's explanation for the payment of the trip to Brazil was completely contradicted by the travel itinerary. Ms. Trudeau testified that Mr. Landry paid for the trip; planned the trip and was present at the Flight Centre travel agency when the trip was paid for. However, the agency's payment receipt is in Ms. Trudeau's name. She signed in two locations on the itinerary and her initials appear all over the document as well. Neither Mr. Landry's signature nor his initials are found anywhere.
(b) In response to the Crown's question why she did not ask Mr. Landry why he wanted to travel to Brazil rather than any other destination, Ms. Trudeau stated the following: "I don' [sic] know. I was just excited to be going on a trip myself". In my view, that response did not make sense in light of the fact that she had travelled to the Dominican Republic twice only a few months ago.
(c) Ms. Trudeau's level of income and living arrangements were not consistent with someone who would have the financial resources to travel long distance by air on four (4) occasions during a period of ten (10) months. The evidence deduced regarding Ms. Trudeau's income was that she averaged approximately $1,500-$2,000 a month which translated to an annual income between $18,000 and $24,000. She testified that one daughter worked part-time at Canadian Tire and the other daughter received $2,000 per month in government assistance. The monthly household expenses for seven (7) people was approximately $2,000. It does not make any sense that with the combined income, monthly expenses and a credit card debt, that Ms. Trudeau would be able to afford these trips, especially the trips to Grenada and Brazil that cost in excess of $5,000 each. As well, the suggestion that Mr. Landry paid for himself on all four trips does not make sense when compared to Ms. Trudeau's evidence that Mr. Landry did not contribute to the household expenses other than paying for cigarettes and car expenses.
(d) While in secondary, Ms. Trudeau made a spontaneous statement to BSO Haist that "they both packed their suitcases together" when BSO Haist questioned Mr. Landry regarding his luggage. Ms. Trudeau's utterance contradicted her testimony that they packed the suitcases separately due to Mr. Landry's obsessive compulsiveness. Ms. Trudeau denied that she actually made the statement. However, the statement was never challenged at trial. I accept BSO Haist's evidence that in fact, Ms. Trudeau claimed that they packed the suitcases together.
(e) Overall, I found Ms. Trudeau's memory often vague, however, her recollection often sharpened when asked to recall specific details. Most notably, Ms. Trudeau specifically recalled that she never carried, pulled or touched her new suitcase the day she left Rio right up to the moment of her arrest in Toronto. On the other hand, she could not recall many specific details about the trip. She stated that they went everywhere and saw everything. However, beyond a lobster dinner in the hotel, a burger on the beach and few other meals at huts on the beach, she could not provide any meaningful details about what meals they ate or the restaurants they attended. She could not recall the name of the large graveyard that they walked by or the names of the beaches. She could not name any local food. Ms. Trudeau's failure to recollect these simple details was inconsistent with her evidence that while in Brazil she was interested in experiencing the Brazilian culture and local food. I found that Ms. Trudeau only recalled important details when it suited her purpose and it afforded her the opportunity to distance herself from the knowledge as to what was contained in the suitcases.
(f) Ms. Trudeau provided inconsistent evidence regarding the timing of when she found out that they were travelling to Brazil. In direct examination, she stated that she learned that they were going to Brazil the week before the date of departure when they applied for a travel visa. However, in cross-examination she contradicted herself when she testified that she was told about a trip to Brazil sometime after Christmas.
(g) Ms. Trudeau's recollection regarding her actions on the day that she purchased the suitcases were initially vague. For example, she could not initially recall when she purchased the suitcases that day, however, when pressed she finally settled on the fact that it was later that day. She also could not remember whether or not they had eaten dinner or went out on the last night. But when she was pressed on these points, she suddenly had a specific recollection of eating dinner on the beach that night after they dropped off the suitcases in the hotel room.
(h) Ms. Trudeau's story was geared towards creating a window of opportunity for Mr. Landry to somehow secret the cocaine in her suitcase when she was not in the hotel room. For example, after breakfast she conveniently remained on the rooftop, smoking and drinking while Mr. Landry packed his suitcase which conveniently gave him the opportunity to put the cocaine in her suitcase.
(i) Although the demeanour of a witness while testifying is just one of many factors that I can take into consideration in assessing credibility, I did observe that on several occasions, in cross-examination, Ms. Trudeau took long pauses before she answered questions. It seemed that her long pauses were taken in order to contemplate the answers. Ms. Trudeau often asked questions to be repeated. In my view, she seemed to be making up her story as she went along. Ms. Trudeau broke down and cried when the Crown suggested that her story was manufactured in order to distance herself from the suitcases. There are other reasons, of course, why she became emotional such as the stress of testifying, however, her breakdown came at an uncomfortable point in the cross-examination.
45I reject Ms. Trudeau's evidence that she did not know that the suitcases contained cocaine. Ms. Trudeau's evidence was not credible. Her explanation regarding the planning and payment for the trip were completely undermined by the travel itinerary. Her income did not match the frequent trips out of the country. (I do not suggest for one moment that those trips with Mr. Landry were for nefarious purposes.) The timing of finding out about the trip to Brazil was inconsistent. Her memory of specific details regarding her last day in Rio was foggy and lacked precision. Her story was more focused on distancing herself from the suitcases than providing a believable narrative. Her story does not leave me in a state of reasonable doubt.
Circumstantial Evidence
46There is no direct evidence that Ms. Trudeau had actual knowledge that the suitcases contained cocaine. This is an essential element of the offence that the Crown must prove beyond a reasonable doubt. It is not necessary to prove actual knowledge through direct evidence. Knowledge can be established through reasonable inferences drawn from the circumstantial evidence. (See: R. v. Meggo, [1998] O.J. No. 2564 (C.A.).)
The Value of the Cocaine as Circumstantial Evidence
47There are numerous authorities that support that the value of the imported drug is a relevant factor or is circumstantial evidence of an accused's knowledge of the item the accused has control of. (See: R. v. Blondin, 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.) at para. 121 (aff'd 1971 CanLII 1411 (SCC), [1971] S.C.J. No. 42) and R. v. Ukwuaba, 2015 ONSC 2953, [2015] O.J. No. 2349 (S.C.J.) at para. 101.)
Analysis
48The Defence submitted that Mr. Landry took responsibility for the suitcases since his name was on the tags of both suitcases. I do not find this argument persuasive. It was clear from the evidence that the suitcase purported to be Ms. Trudeau's contained exclusively female clothing.
49I accept the evidence of BSO Santos that he witnessed Ms. Trudeau place her suitcase on the counter.
50Since the total weight of Ms. Trudeau's suitcase was 9.7 kilograms, the Defence argues that I should draw a reasonable inference that if Ms. Trudeau actually handled the suitcase that she could have easily overlooked the fact that her suitcase was unusually heavy and not suspected that approximately 3.5 kilograms of liquid cocaine was inside. I find that argument hard to accept. RCMP Constable Horwood confirmed the weight but also observed that when the suitcase was empty the suitcase was "unusually heavy" and that he could feel the bumps at the bottom of the suitcase.
51I do not place much emphasis on Ms. Trudeau's reaction of averting her eyes away and downward when BSO Santos inquired if her luggage contained cocaine. In my view, this demeanour evidence is quite tenuous, given the fact that no cocaine had been discovered at this stage of the investigation. Furthermore, it is difficult to assess BSO Santos' subjective assessment of Ms. Trudeau's state of mind. I am not prepared to impute guilty knowledge based on the circumstantial evidence of Ms. Trudeau's demeanour.
52I consider the following circumstantial evidence supportive of Ms. Trudeau's knowledge that the suitcases contained cocaine:
(a) Ms. Trudeau handled her suitcase and placed it on the counter upon BSO Santos' request;
(b) Ms. Trudeau told BSO Santos that she was aware of the suitcase's contents and that she had packed the suitcase herself;
(c) The suitcase was unusually heavy and was bumpy near the bottom;
(d) Ms. Trudeau indicated in the presence of BSO Haist that they "packed the suitcases together";
(e) Approximately 3430 grams of liquid cocaine was located in Mr. Landry's suitcase;
(f) Ms. Trudeau conceded that the suitcases were going to her home in Garson, Ontario. The suitcases would be used again to assist her in her mobile salon business; and
(g) The cocaine in Ms. Trudeau's suitcase was valued between $134,716 and $329,307.
53The Defence submits that there is an available inference that should be drawn from the evidence that Mr. Landry surreptitiously installed a panel of liquid cocaine in Ms. Trudeau's suitcase without her knowledge. The Defence concedes that there is no reasonable inference that can be drawn that someone other than Mr. Landry (i.e., the street vendor) was responsible for putting cocaine in Ms. Trudeau's suitcase. I agree that there is a reasonable inference that Mr. Landry was involved in the importation of cocaine. However, to draw the inference that he secreted the cocaine into Ms. Trudeau's luggage and duped her, requires conjecture and is completely speculative. There is not a scintilla of evidence to support that inference. I agree with the Crown that to do so otherwise, is impermissible. (See: R. v. Villaroman, supra para. 50.)
54The Defence argues that there was an absence of evidence in this case such as a surveillance video of the suitcases being checked in before departing from Brazil that did not answer who actually checked in the luggage. I agree that the lack or absence of evidence may fail to establish an essential element beyond a reasonable doubt. However, in this case, there is only one essential element at issue—Ms. Trudeau's knowledge as to the contents of the suitcases. (See: R. v. Bryan, [2017] O.J. No. 1841 (S.C.J.).)
55The facts are the following:
(a) On May 15, 2017, Ms. Trudeau and Mr. Landry travelled to Brazil.
(b) The suitcases were either brought to Brazil by Ms. Trudeau and Mr. Landry or they were purchased in Brazil.
(c) With her knowledge, 3,522 grams of liquid cocaine was inserted into a suitcase. Ms. Trudeau returned with the same suitcase to Canada on May 22, 2017. The value of the cocaine was approximately $134,716 to $329,307.
(d) On the same day, Mr. Landry returned to Canada with Ms. Trudeau in possession of another suitcase that contained 3,430 grams of cocaine.
(e) When she arrived in Toronto, and directed to secondary, Ms. Trudeau placed her five (5) pieces of luggage on the counter, including her suitcase.
(f) Upon searching her suitcase, the cocaine was discovered and removed. Ms. Trudeau was arrested.
(g) When Mr. Landry was questioned by BSO Haist, Ms. Trudeau affirmed they had packed their suitcases together.
56In my view, I am satisfied the above facts support a reasonable and rational inference that Ms. Trudeau had knowledge that there was an amount of cocaine in her suitcase.
57I dismiss, without hesitation, that the facts were reasonably consistent with Ms. Trudeau's version that she was an unwilling dupe for Mr. Landry. I will not repeat the reasons set out above.
58I do not believe that there was any other reasonable or rational inference to be drawn from the above facts other than Ms. Trudeau knew the suitcase(s) contained cocaine. The Defence did not suggest any other rational inference that could be drawn.
59However, even if I am wrong in my assessment of Ms. Trudeau's credibility and I accept that there was a reasonable inference that she was an unwilling dupe, there would have had to be a series of convenience coincidences in order to make this importation plan a success including:
(a) Ms. Trudeau agreed to go to Brazil even though she had travelled out of Canada to the Caribbean three (3) times with Mr. Landry the previous eight (8) months.
(b) To travel to Brazil was not Ms. Trudeau's idea.
(c) Ms. Trudeau did not bother to inquire as to the reason that Mr. Landry chose Brazil as their destination.
(d) Ms. Trudeau brought her well worn out suitcases to Brazil that she used to transport her hairstyling equipment.
(e) The day before their departure, Ms. Trudeau returned to a street vendor she found previously that sold large but inexpensive suitcases.
(f) Mr. Landry and Ms. Trudeau decided to split the cost and purchased two suitcases.
(g) Ms. Trudeau had a dual purpose for the suitcase, carry clothes and carry her hairstyling tools.
(h) The morning of the day of departure, Ms. Trudeau was alone on the rooftop of the hotel, while Mr. Landry packed his suitcase, which gave him the opportunity to secrete approximately 3.5 kilograms of liquefied cocaine.
(i) Ms. Trudeau never handled her packed suitcase while at the hotel, nor at the airports in Brazil and Toronto.
(j) Alternatively, if Ms. Trudeau, did indeed handle the suitcase, that she never became suspicious due to the weight, the lumpy and irregular back or the pliable and non-viscous nature of the substance that was secreted in the backing of her suitcase.
(k) Since Ms. Trudeau claimed that she was going to be using the suitcases again, there had to be a concerted effort by Mr. Landry, and perhaps others, to keep Ms. Trudeau in the dark after leaving the airport in order to successfully remove the cocaine from her suitcase, without her knowledge.
60There were too many coincidences for the plan to work unless Ms. Trudeau had knowledge.
61Also, there seemed to be an easily accomplished and convenient "exit" strategy (to recover the cocaine) that, in my view, was a factor that suggested Ms. Trudeau had knowledge. If, indeed, Ms. Trudeau and Mr. Landry were the only persons involved in the importation of the cocaine, they would have possession of the cocaine if they got through customs and could have easily recovered the cocaine after they left the airport.
62I cannot think of any other reasonable or rational inference to be drawn from the above facts, other than Ms. Trudeau knew that her suitcase contained cocaine.
63I conclude, that the facts were consistent and only consistent with Ms. Trudeau's knowledge that she was importing cocaine in her suitcase.
Conclusion
64I find that the Crown has proven beyond a reasonable doubt that Ms. Trudeau is guilty of importing into Canada a controlled substance.
Released December 1, 2020
Justice P.T. O'Marra