Court of Appeal for Ontario

Date: 2017-05-31 Docket: C61007

Judges: Cronk, Blair and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Fubio Trinidad Arnaud Appellant

Counsel

R. Craig Bottomley and Mayleah Quenneville, for the appellant

Milica Potrebic, for the respondent

Heard: May 30, 2017

On appeal from the conviction entered on January 28, 2014 by Justice George S. Gage of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of one count of unlawfully importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He was sentenced to 15 years in jail, less credit of 16.5 months for pre-sentence custody.

[2] The appellant appeals from his conviction. He raises two grounds of appeal. First, he argues that the trial judge erred by failing to address his defence in any meaningful fashion. Second, and relatedly, he submits that the trial judge further erred by failing to undertake any proper analysis under the third step of the inquiry mandated by R. v. W.(D.), [1991] 1 S.C.R. 742, in order to determine whether the Crown had made out its case beyond a reasonable doubt.

[3] We reject both grounds of appeal.

[4] This was a straightforward, albeit circumstantial, case. Officers of the Canada Border Security Agency at Toronto Pearson International Airport discovered 68 bricks (33.7 kilograms) of cocaine, with a street value of approximately $2 million, secreted in the lining of several winter vests in two suitcases that admittedly belonged to the appellant. The appellant was travelling from Bogota, Colombia to London, England, via Toronto, at the time of the discovery.

[5] There is no question that the luggage containing the cocaine belonged to the appellant. The only live issue at trial was whether he knew of the cocaine in his luggage.

[6] The appellant testified and denied any knowledge of the drugs. He claimed that most of his personal belongings were missing from his luggage on his arrival in Toronto, and that he had never seen the winter vests before entering the secure customs area at the Toronto airport. He argued, through counsel, that persons unknown – airport baggage handlers – had planted the cocaine in his luggage, without his knowledge or consent, with the goal of shipping the cocaine to England.

[7] At the conclusion of trial, the trial judge delivered brief oral reasons, rejecting the appellant's version of events, concluding that the evidence did not raise a reasonable doubt about the appellant's culpability, and convicting the appellant of the offence charged. In so doing, the trial judge indicated that his oral reasons would be supplemented by written, detailed reasons to be delivered at a later date. He later provided those supplementary reasons.

[8] The trial judge's oral and written reasons must be read together. In our view, contrary to the appellant's contention, they confirm that the trial judge came to grips with the appellant's defence and addressed it head on. Indeed, his reasons directly respond to the defence theory that the appellant was an innocent "blind mule" and that the weight of one of his suitcases on arrival in Toronto and the security tags allegedly attached to his luggage by Colombian airport officials lent credence to this theory.

[9] The trial judge rejected this defence theory as speculative and unworthy of belief. He also rejected the appellant's testimony, making strong adverse credibility findings against him.

[10] The trial judge was entitled to do so. It was demonstrated on cross-examination that the appellant had deliberately lied under oath about his criminal antecedents, significantly undermining, if not obliterating, his credibility. Further, there was no evidence at trial that any baggage handler – or any other individual involved in offloading the appellant's baggage from the plane in Toronto – had tampered with the appellant's two suitcases or planted cocaine in them. Indeed, there was affirmative evidence from Canada Border Security Agency officers that they had observed the offloading of the luggage and saw no one interfering with any of the baggage, including the appellant's suitcases.

[11] We also do not accept the appellant's claim that the trial judge failed to undertake the requisite inquiry mandated under the third step of R. v. W.(D.). That inquiry required consideration whether, on the whole of the evidence, the trial judge had a reasonable doubt about the appellant's guilt.

[12] The trial judge addressed this issue in both his oral and written reasons. In his oral reasons, he expressly considered the defence reliance on the absence of any indication of an overweight baggage charge on the appellant's suitcases and the implications of the security inspection tag allegedly affixed to the appellant's luggage in Bogota. The trial judge provided clear and cogent reasons for his rejection of the defence assertion that these features of the evidence gave rise to a reasonable doubt concerning the appellant's knowledge of the presence of the cocaine. He concluded, on all the evidence, that "the prospect of an independent outside intervention [involving the planting of the cocaine in the appellant's luggage] [was] nothing more than speculation".

[13] The trial judge returned to this issue in his written reasons. He reviewed the evidence in detail, including, specifically, the evidence now said by the appellant to have been favourable to his defence, accurately stated the defence position, and again provided clear reasons for his conclusion that the evidence failed to give rise to a reasonable doubt that the appellant "was aware of the presence of the cocaine in the bags over which he had control".

[14] The trial judge was required to do no more. His findings regarding the appellant's knowledge of the cocaine were based on his assessment of the whole of the evidence. No reversible error having been demonstrated, his appreciation of the evidence and his associated findings attract deference from this court.

[15] Finally, relying on the Supreme Court of Canada's recent decision in R. v. Villaroman, 2016 SCC 33, the appellant says there were reasonable inferences in this case other than guilt and, as a result, the Crown failed to prove its case beyond a reasonable doubt.

[16] We disagree.

[17] The trial judge concluded, in effect, that there was no reasonable inference in this case, on the whole of the record, other than guilt. We see no error in that conclusion. At the end of the day, the defence theory that the appellant was an unwitting "blind mule" of the drugs rested on nothing more than bald assertions by the defence of the possible involvement of unknown baggage handlers or other airport personnel in the importation of the cocaine. That the trial judge rejected that theory does not mean that he failed to apply R. v. W.(D.) properly. It simply means that he saw no available inference in this case, other than guilt, that was "reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense": Villaroman, at para. 36.

[18] For these reasons, the appeal is dismissed.

E.A. Cronk J.A.

R.A. Blair J.A.

K. van Rensburg J.A.