Court of Appeal for Ontario
Date: June 30, 2017 Docket: C61363
Justices: Simmons, van Rensburg and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Craig Wright Appellant
Counsel
For the Appellant: Cate Martell
For the Respondent: Kevin Wilson
Heard: December 5, 2016
On appeal from the conviction entered by Justice Ann J. Watson of the Ontario Court of Justice on July 27, 2015.
Reasons for Decision
Simmons J.A.:
A. Introduction
[1] Following a judge alone trial, the appellant was convicted of importing marijuana into Canada. He appeals from his conviction.
[2] The appellant is a long-haul truck driver who had been employed for about five months at the relevant time by a recently opened trucking company.
[3] On March 20, 2014, the appellant was returning to Canada from Florida with a load of okra. The truck and trailer he was driving were referred for secondary inspection as he crossed the border into Canada.
[4] After offloading the trailer, Canada Border Services Agency ("CBSA") officers found approximately 68 kilograms of marijuana and a gun magazine hidden in the refrigerator ("reefer") unit of the trailer. No charges were laid against the appellant in relation to the gun magazine.
[5] When the appellant was questioned by police after his arrest, he denied knowledge of the marijuana and also denied that he was ever involved in loading the trailer or had ever opened the reefer unit.
[6] However, investigators found the appellant's fingerprint on the back of the blower for the reefer unit. They also found a scrap of paper towel embedded either in or under the passenger seat in the cab of the truck with a pattern similar to the pattern on the paper towel in which the gun magazine was wrapped.
[7] The appellant did not testify at trial. However, the Crown introduced his videotaped police statement into evidence and played the videotape during the trial.
[8] Relying on the fingerprint evidence, the trial judge rejected the appellant's denial, contained in his police statement, that he had ever accessed the reefer unit. However, the trial judge recognized that the probative value of fingerprint evidence must depend on the totality of the evidence. She concluded that the only rational inferences were that the marijuana was placed in the reefer unit during the appellant's Florida trip and that the appellant had at least participated in placing it there.
[9] Given that the blower unit must have been dismantled when the appellant deposited his fingerprint, the trial judge found that he could not have been simply mistaken when he told police his fingerprint would not be found on the reefer unit. Rather, she concluded he "did not want the officers to know that he had accessed the unit" and that the only rational inference, based on the totality of the evidence, was that the appellant had both knowledge and control, either as a principal or as a party, of the importation of the marijuana.
[10] The appellant raised one issue on appeal: the guilty verdict is unreasonable because the fingerprint on the blower unit, standing alone, does not support an inference that the appellant touched the unit in connection with the offence and because the other evidence on which the trial judge relied to connect him to the offence, such as the T-27 drill bit and the paper towel, were not inconsistent with innocence.
[11] During the oral hearing, the panel raised an issue concerning whether and how the principles in R. v. O'Connor (2002), 62 O.R. (3d) 263 (C.A.), apply to the trial judge's treatment of the appellant's statement that he had never opened the reefer unit, as well as the issue of the propriety of the panel's question.
[12] In subsequent written submissions, the appellant argued that the trial judge erred in finding that the appellant's statement was deliberately concocted and by using that finding as circumstantial evidence of guilt.
[13] For the reasons that follow, I would allow the appeal, set aside the appellant's conviction and order a new trial.
B. Background
(1) The appellant's trip to Florida
[14] According to information contained in the appellant's police statement, the appellant began working for Priorite Trucking in mid-November 2013. As far as he was aware, he was the company's only driver and drove its only truck.
[15] The appellant left for Florida on Saturday, March 15, 2014 with a load of shampoo and cosmetics. After arriving in Orlando on Sunday evening, he delivered his load on Monday morning and then went to a truck stop in Fort Pierce, Florida. He spent some time inside the truck stop, but locked the cab while inside; he did not have a lock for the trailer. After sleeping overnight in the truck, he was dispatched to Homestead, Florida on Tuesday, March 18, 2014 to pick up a load of okra at Quality First Produce, located at a farmers' market.
[16] The appellant had been to Quality First Produce before and recognized the people who loaded his trailer. He claimed he did not load the trailer; his only job was to drive the truck. However, he had to wait for a while for the truck to be loaded because the reefer had to cool the trailer.
(2) Investigation by CBSA officers
[17] The appellant arrived at the Peace Bridge in Fort Erie, Ontario close to 8 a.m. on Thursday, March 20, 2014. He was referred for a secondary inspection because he was coming from near Miami, a known source location for narcotics, and because he arrived near the morning CBSA shift change. The CBSA officer who referred him to secondary testified the appellant did not appear nervous at the time.
[18] The reefer unit was not accessible when the trailer was loaded with its cargo of 18 skids of okra. Accordingly, to conduct their inspection, CBSA officers arranged for the truck to be offloaded. This involved some delay. At around 10 a.m., a CBSA officer on a break in the inspection area observed a person she believed was the driver pacing back and forth in the area of the reefer unit of the truck and pushing buttons on the unit. She had no notes of these observations and was not asked to identify the appellant.
[19] The individual who offloaded the cargo from the trailer testified it took 25 minutes to do so with a tow motor; that it would have taken at least twice that long if done with a hand cart; and up to six hours if done by hand. He confirmed that he did not detect any odour of marijuana while inside the trailer.
[20] CBSA officers opened the reefer unit by taking down the "reefer tunnel" from the roof of the trailer, unclipping and removing a plastic bumper cover, and using a T-27 drill bit to remove a lower panel and the reefer's blower unit.
(3) The appellant's arrest and statements to CBSA officers
[21] After discovering the marijuana, CBSA officers arrested the appellant, read him his rights and asked if he understood. He said he did not understand and his rights were read again. A few minutes later, while sitting on a bench in a holding cell, the appellant "blanched" and fainted. He was examined by paramedics, but refused further medical attention. When asked later if he understood what was going on, the appellant responded: "I've never been in trouble before."
[22] CBSA officers arranged for the appellant to speak to duty counsel and then interviewed him. He told them he did not know anything about the gun magazine or what was in the reefer.
(4) The appellant's statement to the RCMP
[23] The appellant spoke to duty counsel a second time after being turned over to the RCMP and then participated in a videotaped interview.
[24] During the course of the interview, the appellant explained his employment history, identified his employer and the company dispatcher and described his trip to Florida. He described his role as solely that of a driver. Although he acknowledged sweeping out the trailer to keep it clean and entering the trailer on occasion to re-stack a fallen load, he asserted that he did not load or unload the truck or do any maintenance on the truck. He said he was shocked upon being told by CBSA officers that a large quantity of marijuana was found in the reefer unit of the truck and denied any knowledge of the drugs or how they got into the truck.
[25] The appellant specifically denied that he ever used the truck's toolbox to fix the reefer unit. He said, "I can't, I don't fix reefer … I don't fix those things … I never use those things." The following exchange then occurred:
RCMP officer: Uhm, then I, I, just want to make sure, I'm going to ask you one more time. You've never ever opened that reefer, ever?
Appellant: No I have no reason for going up and opening it?
RCMP officer: Your fingerprints would never, ever be on that reefer then?
Appellant: No…
RCMP officer: Correct?
Appellant: …I'm going to say no.
(5) Fingerprint evidence
[26] An RCMP officer lifted a number of fingerprints from the reefer unit. He identified one print as matching the appellant's left ring finger. The print was located on the rear of the blower unit, which other evidence indicated would have to have been removed in order to access the area where the marijuana was stored. The other evidence also indicated that it was not possible to access the rear of the blower unit without unscrewing and removing it from the reefer unit. The RCMP officer confirmed that he could not date the print and agreed that it could have been there for six months to a year.
[27] The officer obtained several other fingerprints from inside the reefer, including one on plastic wrapping around one of the marijuana packages and one on paper wrapped around the gun magazine. None of the other fingerprints belonged to the appellant.
C. The parties' positions at trial
(1) The Crown
[28] The Crown's position at trial was that, viewed as a whole, the circumstantial evidence supported a finding that the appellant had knowledge and control of the marijuana when he arrived at the Canadian border. In his closing submissions, Crown counsel at trial did not allude to the fact that the appellant denied accessing the reefer unit. Rather, the Crown relied, in particular, on the following factors:
Primary circumstances:
The appellant was the only driver, he slept in the truck and had exclusive possession and control of the trailer during the trip;
CBSA evidence indicated that the reefer unit was not accessible from the outside of the truck;
The offloader's evidence indicated that the reefer was not accessible while the truck was loaded with okra, thereby precluding the possibility that the marijuana was loaded surreptitiously while the appellant was on a brief rest stop;
The appellant had ample opportunity to load or participate in loading the marijuana both after he offloaded his cargo in Orlando but also during a rest/repair stop in West Virginia while en route to Florida and even after the okra was loaded;
The appellant had access to the tools necessary to open the reefer: a T-27 drill bit was located in the toolbox in the cab of the truck;
A somewhat distinctive paper towel similar to the paper towel in which the gun magazine was wrapped was found in the cab of the truck;
The appellant's fingerprint was found on the back of the blower for the reefer unit, a location that could only be accessed by dismantling the blower unit; and
The marijuana was found in the reefer unit, which could only be accessed by dismantling the blower unit.
Secondary circumstances:
A CBSA officer observed the appellant pacing and looking at the reefer unit while waiting for the trailer to be offloaded in the secondary inspection area; and
The appellant fainted shortly after being arrested.
[29] In reply submissions, the Crown noted a defence submission that the appellant's fingerprint could not be dated. In response, the trial Crown pointed out that the appellant denied ever having been in the reefer unit and also claimed that he had never touched it or done maintenance on it. Beyond that brief submission, Crown counsel at trial did not refer to the concepts of fabricated exculpatory statements or after-the-fact conduct supporting a finding of consciousness of guilt.
(2) The defence
[30] Defence counsel at trial argued that this is not a case in which the trier of fact could be satisfied that the only rational inference from the circumstantial evidence is one of guilt. Defence counsel pointed to the appellant's statement in which he denied any knowledge of the marijuana and provided the name and address of the corporate owner of the truck as well as the name of the individual owner of the company. He submitted that it was equally possible that the owner or dispatcher had arranged to ship the marijuana without the appellant's knowledge. Defence counsel also relied on the fact that the appellant's fingerprint on the blower of the reefer unit could not be dated.
[31] In response to a question by the trial judge about the appellant denying doing any repairs to the reefer unit, defence counsel disputed the accuracy of the evidence identifying the appellant's fingerprint. He also pointed to the presence of fingerprints that were not the appellant's, in particular, the prints on the marijuana package and the paper in which the gun magazine was wrapped.
[32] Defence counsel also relied on the appellant's denial that he participated in loading the truck; the time it took to offload the okra; the evidence of the offloader that the okra appeared to be a normal load; the offloader's evidence that there was no odour of marijuana in the trailer; a CBSA officer's evidence that the T-27 drill bit was at the bottom of the toolbox among other items; a CBSA officer's evidence that the reefer unit could be dismantled very quickly; evidence suggesting that the scrap of distinctive paper towel was not in plain view; the failure of the police to follow-up with the owner of the truck or the food terminal in Florida or to conduct any extensive investigation of the other fingerprints that were found; and the appellant's willingness, stated in response to a question during his police interview, to take a polygraph test.
D. The trial judge's reasons
[33] The trial judge gave lengthy reasons in which she reviewed the evidence and the positions of the parties and instructed herself on R. v. W.(D.), [1991] 1 S.C.R. 742, circumstantial evidence and the treatment of fingerprint evidence.
[34] The core of her succinct analysis is set out below:
The [appellant] denies knowledge of the marijuana in the reefer unit…. I reject the statements made by the [appellant] to the police … denying that he has ever had access to the interior of the reefer unit.… The evidence … was that the [appellant's] fingerprint was located behind the blower unit.
The evidence … that the fingerprint could not be dated must be viewed on the totality of the evidence. The [appellant] on his own admission was the sole operator of the tractor-trailer combination. The [appellant] denied ever having performed maintenance on the reefer unit, and denied that his prints would be found on the reefer unit. The [appellant] told police that his only involvement with the trailer at all would be to sweep out the trailer or to restack a load that had fallen over. The only reasonable inference on the totality of the evidence called is that the reefer unit had to be dismantled in order for the marijuana to be placed where it was located in the reefer unit. The only reasonable inference is that the marijuana was placed in the reefer unit at some point during the [appellant's] trip to Florida from which he was returning on March 20, 2014 into Canada. Although the [appellant] may have left his trailer unlocked for short periods of time at rest stops or otherwise, the [appellant] was the sole driver and slept in his cab which contained a toolbox with a T-27 drill bit and a paper towel similar to the paper towel that was wrapped around a gun magazine found amongst the packages of marijuana. The only reasonable inference on the totality of the evidence is that the [appellant] did access the dismantled unit in order to place or assist in the placement of the marijuana into the reefer unit and in so doing left his fingerprint on the back of the blower unit. I find that it would be unreasonable on the evidence called to find that the [appellant] could have been mistaken in his recollection when he advised the police that his fingerprint could not be found on the reefer unit given the placement of the fingerprint behind the blower unit and given that the unit had to be dismantled when the print was made. The only rational inference is that the [appellant] did not want the officers to know that he had accessed the unit. This is a strong circumstantial case for the Crown. I reject the statements of the [appellant] to the police that he had no knowledge of the marijuana concealed in the reefer, nor am I left in a state of reasonable doubt by the [appellant's] statements to this regard. The only rational inference based upon the totality of the evidence is that the [appellant] had both knowledge and control either as a principal or a party as to the importation of the marijuana. [Emphasis added.]
E. Discussion
(1) The O'Connor issue
[35] As noted above, in response to a question from the panel, the appellant argued, in written submissions, that the trial judge erred in finding that the appellant's statement was deliberately concocted and by using that finding as circumstantial evidence of guilt.
[36] The appellant makes three arguments on this point: i) his statement was never admitted for the purpose of proving that he deliberately lied to the police; ii) there was no independent evidence of fabrication capable of supporting that conclusion; and iii) in any event, the trial judge erred by drawing an inference of consciousness of guilt without determining whether the only rational inference was that the appellant lied to the police because he was conscious of having committed the offence.
[37] I agree that neither the appeal record nor the trial judge's reasons disclose any independent evidence of fabrication capable of supporting a finding that the appellant concocted his statement to conceal his participation in the offence.
[38] It is well established that our law distinguishes between an exculpatory statement which is disbelieved and one that is found to have been fabricated or concocted to avoid culpability. A statement which is merely disbelieved is not evidence that strengthens the Crown's case. However, if the Crown can establish, through extrinsic or independent evidence, that an exculpatory statement was fabricated or concocted to conceal involvement in the offence, the statement evidence can be capable of supporting an inference of guilt: O'Connor; R. v. B.(P.), 2015 ONCA 738, 127 O.R. (3d) 721.
[39] The distinction between mere disbelief and a finding of fabrication is based on the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof where statements from an accused are tendered, or the accused testifies. As this court noted in O'Connor, at para. 19:
The distinction reduces the risk that the trier of fact may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. The distinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation and may move too readily from mere disbelief to a finding of guilt.
[40] This court recognized in O'Connor, and subsequently in B.(P.), that in many, if not most, cases a trier of fact may logically infer fabrication from disbelief. But the policy that underpins the distinction between disbelief and fabrication "sets its face" against using disbelief to infer fabrication. Instead, to establish fabrication, the Crown must adduce evidence independent of the evidence that contradicts or discredits the exculpatory statement: O'Connor, at paras. 21-22; B.(P.), at para. 171. See also R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), leave to appeal ref'd, [1998] S.C.C.A. No. 450.
[41] The requirement for independent evidence of fabrication was recently confirmed by the Supreme Court in R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, a case addressing a fabricated alibi. At para. 3, the court stated that juries should be instructed that only a fabricated alibi can support "an inference of consciousness of guilt". Moreover, there must be "other evidence independent of the finding that the alibi is false on the basis of which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury": Laliberté, at para. 4.
[42] In R. v. Oland, 2016 NBCA 58 (reasons in full reported at, 2017 CarswellNB 11, [2016] N.B.J. No. 288), the New Brunswick Court of Appeal ordered a new trial because of erroneous jury instructions concerning the use of a false post-offence statement by the accused to the police. In doing so, the court elaborated on the concept of concoction and confirmed that evidence independent of the evidence proving the falsity of the statement is required to prove concoction.
[43] At the trial in Oland, in instructing the jury about the use they could make of the false statement, the trial judge drew a distinction between "an intentional lie [and] an honest mistake". However, the trial judge failed to explain the requirement that, to use a lie as evidence of consciousness of guilt, the jury must make a finding of concoction based on evidence independent of the evidence proving the statement false.
[44] At para. 73 of Oland, the court noted that "concoction connotes contrivance". The court emphasized that even if the jury concluded that the appellant lied in a statement he made to the police (as opposed to making an honest mistake), the jury could use that conclusion to support an inference of consciousness of guilt "if, and only if, [the lie] was concocted by the appellant for the purpose of concealing his participation in the … [offence]." Moreover, "a finding of concoction could not be made by the jury simply because the appellant lied; it could be made only if [concoction] was established by evidence independent of the evidence proving he lied". And it was incumbent on the trial judge to review for the jury the independent evidence capable of demonstrating concoction: Oland, at paras. 73 and 79. See also David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pp. 343-44.
[45] At paras. 71 and 72 of its reasons, the court in Oland explained that the rules developed to deal with "out-of-court lies by an accused in the aftermath of and in relation to the offence charged" are not "special". "[Not] all lies are rational or thought through." The rules have been developed because of "the risk of prejudicial impact on trial fairness associated with [this] kind of evidence" and to ensure verdicts that are consistent with "the presumption of innocence and the proper application of the burden of proof."
[46] In this case, in my view, the trial judge made a finding that the appellant's statement that he had never accessed or touched the reefer unit was both a lie (as opposed to an honest mistake) and concocted to mislead the police and conceal his involvement in the offence. She did so in the analysis section of her reasons where she was considering what, if any, significance could be attributed to the fingerprint evidence. But she made the finding of concoction based on the evidence of the location of the appellant's fingerprint on the back of the blower for the reefer unit, thus relying on the very evidence that proved the appellant's statement to be false. She said:
I find that it would be unreasonable on the evidence called to find that the [appellant] could have been mistaken in his recollection when he advised the police that his fingerprint could not be found on the reefer unit given the placement of the fingerprint behind the blower unit and given that the unit had to be dismantled when the print was made. The only rational inference is that the appellant did not want the officers to know that he had accessed the unit.
[47] Although the trial judge self-instructed on a number of legal issues, she did not refer in her reasons to the legal principles governing fabricated exculpatory statements or after-the-fact conduct supporting a finding of consciousness of guilt. In particular, she did not refer to the requirement for independent evidence to support a finding of concoction. Nor did she identify any such evidence in her reasons. In my view, she erred in law in failing to do so.
[48] Based on my review of the appeal record, I can find no evidence independent of the evidence proving the falsity of the appellant's statement that would support a finding of concoction. In the case of an exculpatory out-of-court statement (in contrast to the situation with in-court exculpatory testimony), independent evidence of concoction may emerge from the evidence of the circumstances in which the statement was made. However, I see no such evidence in this case. Such evidence will, of necessity, be case and fact specific. However, typical examples include pre-arrest exculpatory statements that are specific and detailed (for example, the statement in O'Connor) or post-arrest statements that are inherently implausible (for example, the statement in R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, leave to appeal ref'd, [2015] S.C.C.A. No. 37).
[49] At para. 31 of O'Connor, this court described how the circumstances of the statement in that case, which was made before the appellant was even a suspect, could amount to independent evidence of fabrication:
If a jury were to disbelieve the appellant's statements, they might fairly ask why would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellant was so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? … [I]t would be open to the jury to use the evidence of the circumstances surrounding the making of those statements and the nature of the statements themselves to conclude that that appellant fabricated the statements to avoid suspicion.
[50] Here, significantly, the appellant's statement was made post-arrest and was not inherently implausible. Moreover, his denial that he accessed or touched the reefer was essentially a response to questions posed by the interviewing police officer and cannot fairly be described as specific and detailed. I see nothing arising from the circumstances of his statement that could constitute independent evidence of fabrication. And as I have said, the trial judge failed to identify any such evidence.
(2) The unreasonable verdict issue
[51] The appellant argued that the guilty verdict is unreasonable because the fingerprint on the blower unit, standing alone, does not support an inference that the appellant touched the unit in connection with the offence and because the other evidence on which the trial judge relied to connect him to the offence were not inconsistent with innocence.
[52] I would not accept this submission. Although I have found that the trial judge erred in making a finding of concoction, which she used to link the appellant and his fingerprint to the offence, I am satisfied that there was other evidence capable of supporting a finding that the appellant knew about the marijuana in the truck.
[53] In my view, this is not a case in which the fingerprint evidence lacks any probative value. Although it does not link the appellant to the offence, it does provide circumstantial evidence of the appellant having accessed the reefer at some point. When considered in combination with the other evidence relied on by the Crown, such as the somewhat distinctive paper towel found in both the cab and wrapped around the gun magazine, the T-27 drill bit, the evidence of the appellant's control over the truck and trailer during his trip to and from Florida and the other evidence referred to at para. 28 of these reasons, in my view, there was sufficient evidence to permit a trier of fact to conclude that guilt was the only rational inference available on the record.
[54] That said, I do not accept the Crown's submission that its case was overwhelming. As noted at paras. 30-32 of these reasons, defence counsel at trial posited alternative theories to the appellant's guilt. In my view, this is a case in which it is for a trier of fact to consider the evidence and draw the line between reasonable doubt and speculation based on the whole of the record: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
(3) The propriety of the panel's question issue
[55] In its post-hearing written submissions, the Crown argued that the panel's question about O'Connor was a "new issue" within the meaning of R. v. Mian, 2014 SCC 54, [2014] S.C.R. 689, and that it did not meet the threshold test established in that case for the panel to exercise its discretion to consider the new issue.
[56] I would not accept these submissions. At para. 18 of its factum filed for the purposes of the appeal hearing the Crown asserted, in response to the appellant's unreasonable verdict argument, that the trial judge was entitled to rely on the appellant's false statement as supporting of a finding of guilt. The panel's question about the application of the O'Connor principles related directly to this assertion and did not raise a "new issue" within the meaning of Mian.
F. Disposition
[57] Based on the foregoing reasons, I would allow the appeal, set aside the appellant's conviction and order a new trial.
Released: June 30, 2017
"KMVR" "Janet Simmons J.A."
"JUN 30 2017" "I agree K. van Rensburg J.A."
"I agree B.W. Miller J.A."
Footnotes
[1] The appeal record includes a transcript of the appellant's videotaped statement that was filed as a lettered exhibit at trial. Neither party filed the videotaped statement marked as an exhibit at trial.
[2] In R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, leave to appeal ref'd, [2010] S.C.C.A. No. 499, at para. 170, this court said that the circumstances in which an out-of-court statement is made will not permit an inference of fabrication where an accused makes a false statement to police after being arrested and charged with a crime. However, in Stevenson this court held the circumstances surrounding a post-arrest lie could support an inference of guilt. In Stevenson, the post-arrest lie was inherently implausible. The accused was arrested and interviewed mere hours after the offence occurred and yet claimed he could not recall his whereabouts at the time of the offence.
