Court of Appeal for Ontario

Date: October 1, 2018 Docket: C57996

Justices: LaForme, Watt and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Alise Burnett Appellant

Counsel:

• Paul Alexander, for the appellant
• Lisa Mathews, for the respondent

Heard: April 30, 2018

On appeal from the conviction entered on June 20, 2013 by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

Introduction

[1] Alise Burnett was going on vacation. She planned to travel alone to her usual destination – Jamaica. But then a man whom she was dating, Jason Moscow, persuaded her to change her destination. He suggested Panama.

[2] Jason Moscow said that his cousin, known to Burnett only as "Richard", was going to Panama too. He was not going alone. Three others – Teneka Morris, Zoe Layne, and Keisha Sunley-Paisley – were going with him. So Alise Burnett changed her plans. She joined the other three young women and Richard for their trip to Panama.

[3] In Panama, Alise Burnett toured around, danced, partied and tanned. When the vacation was over, Ms. Burnett and the other three women returned to Canada together. Richard did not return with them.

[4] At Toronto Pearson International Airport ("Pearson"), officers from the Canada Border Services Agency ("CBSA") referred Ms. Burnett and her travelling companions to secondary inspection. Each traveler had two suitcases. In each suitcase officers found secret compartments with 1.5 kilograms of cocaine. All four travellers were charged with importing cocaine.

[5] Alise Burnett and Zoe Layne were tried together. Alise Burnett told the jury that she had no idea there were drugs in her suitcases. Zoe Layne said the same thing. The jury did not believe Alise Burnett's testimony and found her guilty of importing cocaine contrary to Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(3)(a)(i). They could not reach a unanimous verdict on the same charge against Zoe Layne. The trial judge sentenced Alise Burnett to a term of imprisonment of six years.

[6] Alise Burnett appeals her conviction. She says that the trial judge admitted some evidence that he should have excluded, then compounded his error by failing to instruct the jury not to use this evidence in assessing whether Ms. Burnett's guilt had been proven beyond a reasonable doubt. She also contends that the trial judge was wrong to instruct the jury that they could find the fault element of the offence charged proven on the basis of wilful blindness.

[7] These reasons explain my conclusion that this appeal should be allowed and a new trial ordered.

The Background Facts

[8] A brief reference to the circumstances giving rise to the offences alleged will provide a suitable frame for the discussion and determination of the grounds of appeal advanced by the appellant.

The Principals and their Relationship

[9] Alise Burnett was 20 years old. She worked in the market research and recruitment industries. Neither job was full-time. She earned about $1000 per month. Within months of the alleged offence she had ended a three-year relationship and had begun dating again with a prior acquaintance, Jason Moscow.

[10] When Alise Burnett told Jason Moscow of her vacation plans and intended destination, he suggested Panama. He said his cousin Richard was planning to go there on vacation with three other young women. According to Moscow, Richard knew a travel agent who could get Ms. Burnett a good deal on a trip to Panama.

[11] Alise Burnett had met the three women who were going on the trip with Richard a few times previously when she was out with Moscow. She decided to go along with them and Richard to Panama.

The Travel Arrangements

[12] About a week later, Richard and the others picked up Ms. Burnett and drove to the travel agency to purchase their ticket packages. Richard spoke to the travel agent. He explained to Ms. Burnett that both all-inclusive and flight-only packages were available. Ms. Burnett chose the all-inclusive package. She agreed to share her room with Teneka Morris because of the limited number of packages available. The others would stay at a different resort.

[13] Ms. Burnett paid for the trip herself, using a pre-paid credit card she purchased with cash.

Packing for the Trip

[14] Alise Burnett explained to Jason Moscow that she had no suitcases to take with her to Panama. Moscow offered to borrow suitcases from Teneka Morris. Two or three days before the flight, Moscow showed up with two suitcases for Burnett. He helped her pack the suitcases. Then he gave her $500 in cash to give to Richard, who had taken an earlier flight, in Panama.

The Departure

[15] Jason Moscow drove Alise Burnett and two of her travelling companions to the airport. Ms. Burnett's luggage was overweight. She removed some of the items and gave them to Moscow to take back to her home. She and the others then boarded their flight to Panama.

The Hotel and Activities

[16] In Panama, Ms. Burnett shared her room with Teneka Morris. As she usually did when on vacation, Ms. Burnett did not empty out her suitcase in their hotel room. Instead, she took out things as she needed them. She was not always in the room with Ms. Morris, but was out and about tanning, partying, shopping, sightseeing and going to the casino and shows.

The Resort Proposal

[17] A few days after their arrival, all four women were at the casino with Richard. He suggested that they could go to a resort, Playa Blanca. Ms. Burnett explained that she could only pay about $75 towards the cost. Teneka Morris told her not to worry about it because all of them were going together. They were to meet a friend of Richard's who would drive them to the resort.

[18] At the resort, Ms. Burnett gave Teneka Morris $50 or $75 as her share of the cost of the room she shared with Morris. Over the weekend, Ms. Burnett was out of the room for all but about eight or nine hours, but Morris remained in the room for much of the time. On the last night she stayed at the resort, Ms. Burnett was at the casino and club all night. Ms. Morris remained in their room.

Return to the Hotel

[19] On the day of her departure, Ms. Burnett had breakfast on her own. She then picked up a money order for $100 Moscow had sent her in case she had overweight charges to pay at the airport. She returned to the hotel, packed some items back in her suitcase and took the shuttle to the airport.

The Airport in Panama

[20] At the airport in Panama, once again, Ms. Burnett's bags were overweight. She threw out some items that had been ruined by rain when they had to wait for their ride to Playa Blanca. She transferred other items to her handbag. She paid an overweight charge at the airport.

[21] Ms. Burnett noticed nothing odd about her suitcases at the airport in Panama. But then again she did not look carefully at the luggage or scrutinize it in any way.

The Arrival at Pearson

[22] When she approached customs at Pearson on her return to Canada, Ms. Burnett had not filled in fully the form indicating the value of any goods she was bringing into Canada from Panama. Moscow had told her not to do so. When an officer pointed this out to her, she said $50, an admittedly false amount.

[23] In the baggage hall, a CBSA officer asked Ms. Burnett and Ms. Morris some questions about the details of their trip. Where had they gone. Where had they stayed. With whom had they travelled. And similar questions. Then the officer referred both women to secondary inspection.

[24] At secondary inspection Ms. Burnett volunteered to go first. She acknowledged that the bags she had brought with her were hers. She was aware of their contents. She had packed the bags herself. To the CBSA officer who conducted the inspection, Ms. Burnett appeared nervous. She stammered when she spoke. Her voice trailed off as she responded to questions. Her hands shook. And she was breathing heavily.

The Search

[25] A CBSA inspector searched both of Ms. Burnett's suitcases. After removing the contents of the suitcases, the officer x-rayed the bags. He noticed an anomaly in each. He cut into each suitcase. When he did so, the officer found a white powder secreted inside. Ms. Burnett was arrested and handcuffed. A test confirmed the white powder was cocaine.

[26] The secret compartment in each of Ms. Burnett's suitcase was well-hidden and not readily apparent. The suitcase revealed no visible signs of tampering. The inspector found the compartment only by disassembling the suitcases with a screwdriver. When empty each suitcase weighed an extra three pounds, but this would not be readily apparent, especially when the luggage had been overfilled with clothing and souvenirs.

[27] The secret compartment in each suitcase contained 1.5 kilograms of 90 percent pure cocaine. Sold by the kilogram at the wholesale level, the cocaine was valued at between $105,000 and $111,000. If sold on the street in its original state of purity by the gram, its value varied between $242,000 and $332,000.

The Accused's Evidence at Trial

[28] Alise Burnett and Zoe Layne were tried jointly on an indictment containing a single count of importing cocaine. Each denied knowledge of the drugs in the suitcases.

[29] Alise Burnett denied being part of or having overheard any discussions about importing drugs into Canada. She had no reason to suspect Moscow or anyone else was involved in such a scheme. She claimed that she had been duped by Moscow and Richard. She claimed the two were helped along by Teneka Morris, who had unrestricted access to Burnett's luggage when Ms. Burnett was out of their hotel room and Morris remained there.

[30] In her evidence before the jury, Ms. Layne testified that she too was unaware that there was cocaine in her luggage. She said that, on the morning of their flight back to Canada, Keisha Sunley-Paisley cried and apologized to her without explaining the reasons for her apology. Ms. Layne also testified that Richard paid for the mini-vacation at Playa Blanca and gave everyone spending money.

The Grounds of Appeal

[31] Alise Burnett ("the appellant") advances three grounds of appeal. She says that the trial judge erred:

i. in permitting an expert to give anecdotal evidence about drug couriers' knowledge of contraband in their luggage and in failing to instruct the jury about how to assess expert evidence in general and to disregard anecdotal portions of the expert's evidence;

ii. in permitting Crown counsel to introduce evidence of the appellant's low income as evidence of motive and failing to instruct the jury about using this evidence; and

iii. in instructing the jury that the crucial element of knowledge could be proven through the doctrine of wilful blindness. The trial judge also erred in failing to properly instruct the jury on the effect of a failure to put a suggestion of wilful blindness to the appellant in cross-examination on the availability of this basis for proving knowledge.

Ground #1: The Expert Evidence Issue

[32] This ground of appeal has to do with the admissibility and use of a portion of an expert's opinion evidence. To be more specific, it requires an assessment of the impact of a failure to provide general instructions about the assessment of expert opinion evidence and specific instructions about the limitations on use of specific features of that evidence.

[33] Before any canvass of the arguments advanced in this court and the relevant principles, it is essential to identify the precise subject-matter of the complaint, both as it concerns the evidence adduced and the instructions given to the jury about its use.

The Additional Background

[34] At trial, the Crown called Corporal Gregory Connolly, a member of the RCMP, to give expert opinion evidence about some facets of the drug trade, including methods of distribution, valuation and pricing of the drug, methods of use, methods of packaging, methods of importation, and hierarchies within the scheme for importation and trafficking.

[35] Trial counsel did not contest the officer's qualifications to give expert opinion evidence on these issues. And for the most part, the appellant takes no issue with the admissibility of Cpl. Connolly's evidence.

The Impugned Evidence

[36] Towards the end of his examination-in-chief, Cpl. Connolly was asked to explain his opinion about the drug importation hierarchy. His lengthy response included the following description of couriers:

Most couriers, it's usually for financial purposes or gain that they're going to be paid a, either a flat fee or a, a fee per kilo, for their, for their involvement. So they're going to receive a financial compensation for that. When that courier is at the trans-shipment country, such as Panama, that person, the courier, may not be the person that does the secretion into – have it in the, in this, in the hypothetical of, say, the luggage and suitcases. They are not be – they may not be the person that does all the repackaging.

Obviously, there has to be a, a certain amount of sophistication whereby you have eight similar type suitcase already preformatted for packaging or determined by the size of the packaging or, say, of the, of the suitcases, the means of which the dimensions to secrete and conceal behind the false wall of the, of the suitcase. So that's already been pre-planned and normally done by the, the middlemen back in the trans-shipment country. So the courier, because it comes down to the, with the courier, the courier knows that they're involved with a – in, in my experience, has knowledge that they're involved with a, an illegal activity.

They may not actually physically see the product that's, that's in the suitcase, but they've allotted someone to provide care and control of their suitcase for a period of time, or access to a location in order, or they received a, say, suitcase down, and they've done a substitution on what they originally travelled with. [Emphasis added.]

Neither defence counsel at trial objected to the introduction of this evidence.

[37] In cross-examination, trial counsel for the appellant (not counsel on appeal) suggested to Cpl. Connolly that one or more of the four travellers might have been carrying the drugs unknowingly, as unwitting dupes of others who knew about the contraband. The officer responded:

It's a possibility, but, however, I believe there's a, in a situation where you're dealing with the quantities that we're dealing with, there is a measure of trust that the bags don't go inherently lost or misplaced or, you know, damaged on route and then it gets replaced en route. There is a measure of trust and knowledge that, that's placed within, within [couriers]. [Emphasis added.]

Trial counsel commented "that makes, that makes sense. I totally understand what you're saying".

[38] Trial counsel for the co-accused Layne suggested to Cpl. Connolly the possibility that two of the four travellers would know about the scheme and would keep the other two, who were unaware of the scheme, "onside". The officer answered:

Again, it comes down to I, I believe a trust factor because these are significant quantities and there has to be a, a general agreement by all, all parties that they work in concert with one another because if one falls, they all fall in terms of their, their knowledge and their ability to successively traverse through the international border.

[39] At other points in his cross-examination by counsel for the co-accused Layne, Cpl. Connolly acknowledged the possibility that couriers may be unaware of their carriage of contraband. He also conceded that there would be advantages associated with "blind" couriers when re-entering the country: unaware of the presence of their cargo, they would appear less nervous to border officials.

The Addresses of Counsel

[40] Counsel on both sides invoked the testimony of Cpl. Connolly in their closing addresses to the jury. The Crown argued that the value of the drugs imported reflected a significant amount of trust in the couriers who would have knowledge of the contraband and their role in its importation. Counsel for the co-accused focused on that portion of the officer's testimony that allowed for the possibility of a "blind" courier.

The Jury Instructions

[41] When the trial judge qualified Cpl. Connolly as an expert witness on the methods of importation and distribution of cocaine, as well as the pricing and determination of the value of the drugs, he told the jury:

i. that he would "explain this in more detail later"; and

ii. that, ultimately, the jury was to assess the evidence of Cpl. Connolly, an expert, just as the jury would assess the evidence of all the witnesses.

[42] In his final instructions to the jury, the trial judge did not include the traditional instruction on expert evidence. He did point out to the jury that the simple fact that a witness was a police officer did not mean that his evidence was any more worthy of belief than the testimony of any other witness. Evidence from police officers, the judge told the jury, was to be assessed in the same manner and according to the same tests as the testimony of any other witness.

[43] The trial judge did summarize some features of Cpl. Connolly's evidence in his charge to the jury. He pointed out that the officer had said that considerable effort had been expended to conceal the drugs in each suitcase and that couriers do not generally know the "higher-ups" in the distribution scheme. He also mentioned Cpl. Connolly's testimony that importation schemes do exist where couriers are not aware of the contraband they carry and that an advantage to couriers who are unaware of the drug shipment they carry is that they do not appear to be nervous with border officials on their return to Canada.

The Arguments on Appeal

[44] The principal submission of the appellant is that the trial judge erred in permitting Cpl. Connolly to testify that, in his opinion, couriers know that they are carrying drugs. The evidence was inadmissible because it was not relevant or necessary to a determination of the critical issue at trial – knowledge. In addition, the opinion expressed trenched on the ultimate issue at trial and the probative value of the evidence was outweighed by its prejudicial effect.

[45] The appellant says that this testimony fell afoul of the prohibition against anecdotal evidence put in place by R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272. This evidence was irrelevant because it involved an extrapolation from the witness' prior experience to an assertion of actual knowledge on the part of the appellant. Further, it was unnecessary because the jury could reach its own conclusion on the knowledge issue on the basis of the whole of the evidence adduced at trial without the need for the assistance of expert testimony. In addition, the evidence was overwhelmingly prejudicial in that it tended to reverse the burden of proof and spoke to the ultimate issue that was for the jury to decide.

[46] The error in admitting the evidence, the appellant continues, was compounded by the trial judge's failure to provide any instruction to the jury about their handling of this evidence. There was neither a general instruction about the assessment of expert opinion evidence, nor a specific instruction cautioning jurors not to simply defer to the opinion of Cpl. Connolly on the critical and ultimate issue of the appellants knowledge of the drugs in her luggage.

[47] The appellant argues that the erroneous reception of this evidence should result in a new trial. This was not some harmless error. Rather, it was a mistake that permitted the jury, without proper instruction, to consider inadmissible evidence to resolve the crucial factual issue at trial – knowledge. The admissible evidence relevant for the jury to consider in their determination of this issue was far from overwhelming: witness the jury's inability to reach a verdict on the co-accused Layne, whose evidence indicated that one of the other travellers gave her a tearful acknowledgment of responsibility.

[48] The respondent is of a different mind. Not only was the contested evidence properly admissible, but the absence of any general or specific instruction about its use caused the appellant no prejudice in this case.

[49] On the admissibility issue, the respondent says that the bulk of Cpl. Connolly's evidence consisted of general opinion about subjects upon which counsel agreed he was qualified to testify. The same type of evidence was given in Sekhon without any suggestion that its reception was improper. The mere fact that the evidence brushed up against the ultimate issue at trial affords no ground for exclusion. The old ultimate issue rule did not foreclose its reception since it no longer operates as a rule of exclusion. And the Supreme Court of Canada in Sekhon has made it clear that the value of the drugs imported can support an inference that their owner would only entrust their carriage to a trusted and reliable individual, and that with proven reliability and trust naturally comes some knowledge about the contraband.

[50] The respondent says that the challenged testimony does not amount to anecdotal evidence barred by Sekhon. Cpl. Connolly did not say that he has never seen a blind courier, as the witness did in Sekhon. And that is what rendered the opinion of the expert in Sekhon irrelevant and unnecessary. Cpl. Connolly's testimony offered nothing specific about the appellant's state of mind. Not directly. And not, as in Sekhon, by extrapolation from prior experience. But what is more to the point here is that Cpl. Connolly not only acknowledged the possibility of a blind courier, but conceded that employment of such a person may have advantages for the scheme of importation since a blind courier would be less likely to appear nervous on their return to Canada.

[51] The respondent accepts that, as a general rule, the presiding judge instructs the jury both when expert opinion evidence is first admitted at a criminal trial and again in the final jury charge. The instructions explain how the jury is to assess this evidence and use it in reaching their decision. Admittedly, that was not done here. But the substance of that instruction differs little from the instruction given about the assessment of testimony from other non-expert witnesses. Here, the instructions were pre-vetted with counsel, including two defence counsel. No one sought an expert evidence instruction. No one objected to its omission. Nor was any complaint made about the necessity for or the absence of any more nuanced direction. No harm. No foul.

The Governing Principles

[52] This ground of appeal raises two discrete but related issues. The first has to do with the admissibility of a part of the expert opinion evidence of Cpl. Connolly which is said to have infringed the prohibition against anecdotal evidence imposed by R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272. The second concerns the adequacy of instructions to the jury about the use of this evidence in reaching its verdict.

[53] First, admissibility.

[54] In Sekhon, like this case, the appellant was charged with importing cocaine, in addition to possession of cocaine for the purpose of trafficking. He was arrested on his return to Canada after border officers searched a secret compartment in a truck he was driving and found 50 bricks of cocaine each weighing about 1 kilogram. The truck belonged to a friend who had asked the appellant to drive it back to Canada from the United States.

[55] In Sekhon, as here, the Crown called a police officer who was qualified as an expert in the customs and practices of the drug trade including chains of distribution, distribution routes, means of transportation and methods of concealment, packing, costs, valuation, and profit margin. The witness testified that the value of cocaine seized was between $1,500,000 and $1,750,000. He explained that the recruitment of couriers took time and that carriage of the amount of drugs involved would not be entrusted to a first-time courier.

[56] Towards the end of the examination in chief of the expert in Sekhon, this exchange occurred between the witness and Crown counsel:

Q: Officer, you described earlier that you've been involved in approximately 1,000 investigations involving the importation of cocaine over your 33-year career?

A: That is correct, Your Honour, yes.

Q: In approximately how many of those investigations were you able to determine that the person importing the cocaine did not know about the commodity that they were importing?

A: I have never encountered it, personally.

Q: Have you ever heard of a -- the use of a blind courier or a courier who doesn't know about the commodity that he is driving?

A: I -- I've certainly heard that argument being raised on -- on occasion, primarily in court, not during my investigations.

[57] The excerpted testimony was characterized as anecdotal evidence. Its admissibility was analyzed in accordance with the threshold requirements of R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-21, that is to say:

i. relevance;

ii. necessity;

iii. the absence of an exclusionary rule; and

iv. a properly qualified expert.

[58] The Sekhon court found that the anecdotal evidence failed to satisfy either the relevance or necessity requirements of Mohan. The testimony, though perhaps logically relevant, was not legally relevant. This was so because the guilt or innocence of others whom the witness had encountered in the past was legally irrelevant to the guilt or innocence of Sekhon because it was of no probative value on the issue of Sekhon's knowledge of the cocaine in the secret compartment. And the testimony was not necessary because a decision on the knowledge issue was not beyond the experience and knowledge of the trial judge and not something that was technical or scientific in nature: Sekhon, at para. 49.

[59] Failure to meet the relevance and necessity requirements of Mohan was sufficient to render the anecdotal evidence in Sekhon inadmissible. However, the court pointed out that this type of anecdotal evidence also had a prejudicial effect on the proceedings. This was so because it appeared to require an accused to somehow prove that, regardless of the expert's prior experience, the accused's situation was different. Such a result was at odds with the fundamental tenet of our justice system that it is for the Crown to prove the fault element of a crime beyond a reasonable doubt: Sekhon, at para. 50.

[60] Despite the erroneous reception of the anecdotal evidence which it considered irrelevant, unnecessary and prejudicial, the Sekhon court dismissed the appeal. The court concluded that, apart from the anecdotal evidence, the case for the Crown was overwhelming. In addition, the trial occurred before a judge sitting without a jury: Sekhon, at paras. 54-56.

[61] Apart from the anecdotal evidence, the Sekhon court did not suggest that the balance of the expert evidence given at trial was inadmissible. This included testimony about the nexus between the value of the shipment and the experience level of the courier. This evidence, unlike the anecdotal evidence, did not invoke the prohibited chain of reasoning from general experience to a specific state of mind.

[62] Two decisions of this court, each rendered after Sekhon, provide some assistance on the admissibility issue.

[63] In R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, the court distinguished between general opinions about the participation of drug couriers in the movement of contraband, including the unlikelihood of inexperienced and unknowledgeable couriers being involved in the importation of significant quantities of drugs and case-specific opinions bearing directly on the appellant's credibility and his alleged knowledge of the cocaine in the vehicle: Singh, at paras. 21-22. The former opinions were admissible, the latter not: Singh, at paras. 35-37.

[64] In R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 478, this court held that where an accused is said to be in possession of a controlled substance of significant value, a trier of fact may infer:

i. knowledge of the nature of the subject-matter; and

ii. knowledge of the substance itself.

These inferences may be available from the objective improbability that such a valuable quantity of drugs would be entrusted to anyone who did not know the nature of the contents in the means of transport: Bains, at para. 157.

[65] Second, instructions on the use of expert opinion evidence.

[66] None would gainsay that where expert opinion evidence is admitted in a jury trial, the presiding judge instructs the jury about how to assess the evidence and how to apply it in deciding the issues to which it relates. Most often the first instruction is given mid-trial when the first expert evidence is received. The same instruction may be repeated as more experts are called or the jury simply reminded of the application of the prior instruction to the evidence of subsequent witnesses. The mid-trial instruction is repeated in the charge in similar terms.

[67] Typically a jury instruction on expert opinion evidence will include:

i. a description of the relationship between knowledge of a technical subject, the qualifications of an expert, and their ability to express opinions on the subject;

ii. a brief summary of the expert evidence adduced at trial;

iii. and a direction on how to assess the testimony of experts and to determine its impact on the decisions required of the jury at the end of the trial.

As part of the latter direction, jurors are told that they are to evaluate the evidence of experts in the same manner as the testimony of any other witness and may believe or rely upon it as much or as little as they see fit.

[68] A final point concerns the obligations imposed on a trial judge sitting with a jury when an expert's opinion strays beyond the boundaries imposed upon it at the outset. In these circumstances, whether the problem arises due to a failure to qualify the expert in the particular area or, as in Sekhon, the expert giving anecdotal evidence, the trial judge is obliged to instruct the jury not to consider the inadmissible aspects of the evidence: Sekhon, at paras. 46-48; R. v. Marquard, [1993] 4 S.C.R. 223, at p. 244.

The Principles Applied

[69] As I will explain, I would give effect to this ground of appeal.

[70] First, admissibility.

[71] Much of Cpl. Connolly's testimony was to the same effect as those portions of the evidence of Sgt. Arsenault in Sekhon that the Supreme Court of Canada found unobjectionable. This evidence was about:

i. chains of distribution;

ii. the value of the drugs imported;

iii. the recruitment of couriers;

iv. the relationship between couriers and other participants in the distribution chain; and

v. the trust relationship between the principals and couriers involved in the movement of high-value shipments.

This evidence, as in Sekhon, was of a general nature. Although its origins were in the experience of Cpl. Connolly, no effort was made to draw a link between Cpl. Connolly's prior experience and the appellant's state of mind, including her knowledge of the contraband in her suitcases.

[72] But, as in Sekhon, the evidence of Cpl. Connolly went further: "the courier knows that they're involved with a – in, in my experience, has knowledge that they're involved with a, an illegal activity."

[73] The opinions expressed by Sgt. Arsenault in Sekhon and Cpl. Connolly in this case are in different terms. Sgt. Arsenault testified that he had heard about but never seen a "blind courier" in over 1,000 drug investigations. Cpl. Connolly testified that couriers know what they are involved with. The opinion of each officer was that of an expert, founded on their experience in other cases. In each case that opinion was proffered as the basis for a chain of reasoning from prior experience to the state of mind of a specific individual – the accused on trial. And in each case that state of mind – knowledge of the contraband – was the critical issue for the trier of fact to decide.

[74] In his testimony Cpl. Connolly acknowledged the "possibility" of a "blind courier", that is to say, a person who was unaware that their luggage contained contraband. At the same time, however, he underscored that there was a "measure of trust and knowledge that's placed within, within [couriers]." In Sekhon, Sgt. Arsenault was not so flexible in his opinion.

[75] Despite the differences in the manner in which the experts testified in Sekhon and in this case, I am satisfied that Sekhon controls the determination of the admissibility issue in this case. What Sekhon enjoins is evidence that invites a trier of fact to reason from a generalized conclusion based on prior experience to a specific state of mind of the person charged. The guilt or knowledge of one (the person charged) cannot be determined by reference to the guilt or knowledge of unrelated others. And that prohibition applies here.

[76] Second, instructions to the jury.

[77] In Sekhon, the court accepted that where anecdotal evidence is admitted, a remedial instruction advising the jury to disabuse their minds of the inadmissible parts of the evidence will generally suffice to counter any prejudice that may ensue: Sekhon, at para. 48.

[78] In this case, the jury did not receive the traditional instruction on how to evaluate expert opinion evidence or on how to use it in deciding whether the Crown had proven the critical issue of knowledge beyond a reasonable doubt. More importantly, they did not receive any instruction enjoining their use of the inadmissible portion of Cpl. Connolly's opinion evidence in reaching their verdict. In other words, the antidote to prejudice was not administered. The prejudice remained unabated.

[79] To be fair to the trial judge, counsel on all sides did not seek an instruction on expert evidence, or complain about its omission. Nor did the trial judge have the benefit of the decision of the Supreme Court of Canada in Sekhon.

[80] After anxious consideration, I am satisfied that the reception of the inadmissible portion of Cpl. Connolly's evidence, coupled with the absence of a remedial instruction enjoining its use, warrants setting aside the appellant's conviction and ordering a new trial. After all, this evidence, left to the jury without proper instruction and relied upon by the Crown in advancing its case in proof of guilt, related to the single contested issue at trial.

Ground #2: The Evidence of Low Income

[81] The second ground of appeal also asserts error not only in the reception of evidence, but also in a failure to provide adequate instruction to the jury about the use of that evidence in reaching a verdict. In this case, the evidence relates to the financial condition of the appellant. This evidence, the Crown contended, established a financial motive for the appellant to commit an offence for which she would receive a financial reward.

[82] To better understand the nature of this complaint, the evidence adduced and the use made of it at trial need be sketched out.

The Evidence of Income

[83] A police officer who had obtained access to the appellant's tax returns testified that the appellant's income for the 2010 taxation year was $22,142, when she also had a tuition expense of $4,756. The following year – the year of her arrest – the appellant's total income was $2,125. In other words, the appellant's income decreased by 90 percent in 2011 from what it had been in 2010.

[84] The taxable incomes of the co-accused Layne for the same taxation years were $4,501 and $1,881 respectively.

The Address of Crown Counsel

[85] In her closing address to the jury, the trial Crown argued that the financial situation of the appellant and co-accused could provide a motive for each to commit the offence charged. She reminded the jury of the expert evidence of Cpl. Connolly about how couriers were compensated for their work by cash payments or payments for the trip itself. The Crown described the appellant and co-accused as not coming from a "financially solid position". She did not explain how evidence of motive could be used by the jury in reaching its decision, but reminded the jury that the Crown did not have to prove motive in order to establish guilt.

The Charge to the Jury

[86] In his charge to the jury, the trial judge included three references to motive.

[87] The trial judge defined motive and explained how evidence of motive could be used in proof of guilt. He pointed out that motive was not an essential element of the offence and thus it need not be proven by the Crown to establish an accused's guilt. He described the motive alleged as the "relatively low income" of the appellant and the "very low income" of the co-accused Layne. In concluding his instruction on motive, the trial judge cautioned the jurors against propensity reasoning:

You are not, however, allowed to reason that because a person has a low income she is more likely to commit a criminal offence. That type of reasoning would obviously not be fair, given that there are many low income people who never commit a crime and many high income people who do.

[88] Later in his charge, the trial judge reminded the jury briefly about the substance of the evidence alleged to amount to motive and, in apprising the jury of the position of the Crown, explained the Crown's reliance on evidence of motive to prove the appellant's guilt.

[89] Defence counsel did not object to the introduction of evidence of the appellant's financial state at trial nor to the Crown's reliance upon it as evidence of motive. Similarly, counsel did not object to any aspect of the trial judge's instructions on motive.

The Arguments on Appeal

[90] The appellant says that, standing alone, evidence of low income cannot serve as evidence of a motive to commit a crime for profit. Evidence of low income is not logically probative of motive. Besides, the evidence is inherently prejudicial in that it has a tendency to promote a thinly-disguised form of impermissible propensity reasoning. What is more, it is simply unfair to suggest that persons with low income are motivated by that very fact to commit crimes for financial reward.

[91] In some instances, the appellant allows, evidence of low income may be received. But, she argues, there must be some case-specific basis to establish its relevance apart from some form of propensity reasoning. In this case, she submits, no case-specific foothold can be advanced; thus, the evidence should not have been received.

[92] Evidence of low income, the appellant continues, is inherently prejudicial. Thus, in cases in which it is received, trial safeguards must be invoked to stifle this inherent prejudice. A robust injunction against propensity reasoning. A full instruction on the issue of motive, including a reminder that absence of proven motive tends to support the presumption of innocence. And in this case, a reference to the appellant's evidence that she paid for her own vacation package.

[93] The respondent counters with a submission that no principle precludes the reception of evidence of motive as part of the prosecution's case against an alleged drug courier, provided that evidence is relevant, contravenes no exclusionary rule of the law of evidence and is more probative than prejudicial. Evidence of an alleged courier's straitened financial situation, including evidence that the person is under financial pressures, is probative when it is alleged that there was a financial reward for services rendered. It is only evidence of general impecuniosity offered to establish the inclination or propensity of the alleged courier that is impermissible.

[94] In this case, the respondent says, the evidence discloses that in the months prior to the trip to Panama, the appellant was under significant financial pressure. Her long-standing relationship with a partner who had supported her and paid the household expenses had ended. She was living at a friend's place, her clothing and other necessities contained in garbage bags. Her working hours in her main job had been reduced. The second job she worked was part-time, the assignments sporadic, and the income variable. Her monthly income was about $1,000 and her yearly income at a 90 percent decrease from the previous year. Cumulatively, these circumstances could sustain a finding that the appellant had a financial motive to commit an offence for financial gain.

[95] The respondent denies that there was any inadequacy in the trial judge's final instructions to the jury on the issue of motive. True, the trial judge could have said more on the subject. But that could be claimed in almost every case. These instructions were proper. They need not have been perfect. They responded to the appellant's principal concern by including a firm injunction against propensity reasoning from impecuniosity to guilt. They attracted no objection. No more need have been said.

The Governing Principles

[96] The principles that control the decision on this ground of appeal are those of general application in connection with evidence of motive, about which there is no dispute, and those relating more specifically to evidence of financial condition as evidence of motive, about which the parties are divided.

[97] First, a few basic points about evidence of motive.

[98] Evidence of motive is circumstantial evidence of guilt and its relevance is established by a prospectant chain of reasoning. In other words, the reasoning is that a prior state of affairs justifies an inference that the state of affairs existed at a later and material point in time and resulted in conduct that constituted the actus reus of an offence. Said another way, a subsequent course of conduct is inferred from the existence of prior state of mind: R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 64; IA Wigmore on Evidence (Tillers Rev), at § 43, pp. 1138-1142.

[99] Evidence of motive is relevant and admissible even though motive is not an essential element of an offence charged and thus legally irrelevant to criminal responsibility: R. v. Lewis, [1979] 2 S.C.R. 821, at p. 833; IA Wigmore, at § 118, pp. 1697-1701. Evidence of motive may assist in proof not only of elements of the actus reus of an offence, but also of the state of mind or fault element that accompanied it: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 113.

[100] Proven absence of motive tends to support the presumption of innocence. But absence of proven motive is not the equivalent of proven absence of motive: Lewis, at pp. 835-836. The importance of evidence of motive in the purported demonstration of guilt varies from one case to the next. Motive is of greater importance where the case for the Crown consists entirely or substantially of circumstantial evidence: Lewis, at pp. 834-835 and 837-838.

[101] What may constitute a motive for a person to commit a crime and the circumstances that might excite that motive involve the whole range of human affairs. To catalogue the various facts of human life with reference to their potency to excite a motive would be at once pedantic and useless: II Wigmore on Evidence (Chadbourn Rev), § 389, at pp. 416-7.

[102] We distinguish two evidential steps when evidence of motive is tendered. The first is that since a motive is likely to lead to the doing of the relevant act, the presence of the motive in an accused is likely to lead the accused to do the act. In this step in the argument, we assume that, in some manner or another, the motive is established as a fact. But of course the motive must be proven. For the most part, the evidence tending to prove the motive is circumstantial. It consists of evidence of conduct and events about the accused tending to excite the motive. But what conduct and outer events are probative of the likely existence of the motive is a different question from the relevance of the motive to show the probable occurrence of the act induced by it. The latter is not apt to produce many evidentiary disputes. The former raises several: IA Wigmore, at. § 117, pp. 1696-1697.

[103] In a variety of ways, the pecuniary circumstances of one person may tend to excite a motive in that or another person. For example, an accused's lack of money might be relevant to show the probability of that accused's desire to commit an offence in order to obtain money. But, in practical terms, might not such a doctrine put a poor person under much unfair suspicion and invite propensity reasoning? Perhaps less so in cases of merely financial crime than for crimes of violence: II Wigmore, at § 392, pp. 431-433.

[104] Previous authority has held that financially straitened circumstances may provide an accused with a motive to commit a crime for a financial reward: R. v. Shapiro, 40 C.C.C. 14 (Que. Q.A.), at p. 15.

[105] In R. v. Mensah, [2003] O.J. No. 1096 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 207, the Crown relied on evidence that the appellant was in receipt of employment insurance benefits to establish a motive to import heroin. On appeal, the appellant argued that the admission of this evidence exploited stereotypical views about economically disadvantaged persons and thus amounted to inviting the jury to follow a path of propensity reasoning to find guilt. This court agreed with the general proposition that evidence that an accused

i. has a certain level of income; or

ii. is on government-assisted income

is, on its own, insufficient to support an inference of a motive to commit a profit-motivated crime. Further, this evidence must not be used as a basis for a disguised form of propensity reasoning: Mensah, at para. 8.

[106] However, the Mensah court continued, where the evidence could leave it open to the jury to find that the appellant was experiencing some financial pressure and that his decision to travel to Ghana was not for the reason he stated but to obtain money through crime, the evidence was admissible to establish a motive for the offence committed: Mensah, at para. 10.

[107] A final point has to do with jury instructions when evidence about an accused's financial status is adduced to establish motive for a crime involving financial reward. In some, but not all cases of this nature, it may be necessary to instruct the jury not to engage in propensity reasoning. In other words, that the jury is not to reason that those who are poor or are in receipt of government assistance are the type of persons who commit profit-motivated crimes and thus an accused was more likely, for that reason, to have committed the offence charged: Mensah, at paras. 11-12.

The Principles Applied

[108] This ground of appeal, like the first, targets two aspects of the evidence of the appellant's financial circumstances at the time of the offence. The first focuses on the admissibility of the evidence, the second contests the adequacy of instructions to the jury about its use in reaching a verdict.

[109] As I will explain, I would reject this ground of appeal. The evidence was properly admitted at trial and its use adequately explained to the jury.

[110] First, the threshold issue of whether the evidence was properly received at trial.

[111] Evidence is receivable in a criminal trial if it satisfies three requirements: relevance, materiality, and admissibility.

[112] It is difficult to gainsay that a lack of money is capable of supporting an inference of a motive to commit an offence for financial gain. It follows that evidence that a person was subject to financial pressures at the time she or he is alleged to have committed an offence typically committed for financial reward is relevant in a prosecution of that person for the offence. It is notorious that the threshold for relevance is not rigorous or demanding. It is sufficient that the facts sought to be proven by the introduction of the evidence is slightly more probable than it would be without the evidence.

[113] Motive is not an essential element of the offence charged. But evidence of motive is material to a demonstration of guilt. This satisfies the materiality requirement.

[114] To be admissible, evidence that is relevant and material must not offend any admissibility rule of the law of evidence. In this case, the admissibility rules which could mandate exclusion are those that prohibit propensity reasoning as a pathway to proof of guilt and that require that the probative value of an item of evidence tendered by the Crown in proof of guilt exceed its prejudicial effect.

[115] I do not dispute the general proposition that evidence that an accused has a certain level of income or is in receipt of government assistance is insufficient, on its own, to support an inference that an accused has a motive to commit a profit-motivated crime. Nor do I question that such evidence must not be used as a basis of a thinly-veneered form of propensity reasoning.

[116] But the contested evidence here is not of the nature that attracts exclusion. Here, the jury was not asked to infer motive solely from the appellant's income level. Rather, the inference was founded on a series of then-recent financial pressures. Loss of financial support from a domestic partner. A change in employment income from full-time to part-time status. The need for two jobs to make ends meet.

[117] Prior decisions of this court, for example, Mensah and R. v. Phillips, 2008 ONCA 726, [2008] O.J. No. 4194, at paras. 50-51, support the reception of the contested evidence in this case. In addition, this evidence was received without objection at trial. While failure to object is not dispositive of admissibility, it is not without significance. Failure to object affords some indication that counsel, the person most directly responsible for protecting the appellant's right to a fair trial, did not consider any potential prejudice inherent in or arising from this evidence to warrant a challenge to its admissibility.

[118] Nor can the appellant succeed on her claim of inadequate jury instructions about this evidence.

[119] The trial judge briefly instructed the jury on the issue of motive and described the evidence advanced as evidence of motive. As can often be said, the instruction could have been more complete. But it does not follow that further direction was necessary or its absence prejudicial to the appellant. The instruction did contain a prohibition against propensity reasoning from low income to probable guilt, thus reducing the risk of improper use of the evidence.

[120] Counsel and the trial judge discussed the contents of the jury charge before it was delivered. And counsel were afforded ample opportunity after delivery to object to what was said or left out and to ask that something be added to what had been said. Trial counsel made no objection and offered no suggestion for additions, corrections or improvements. This ground of appeal fails.

Ground #3: The Instruction on Wilful Blindness

[121] The final ground of appeal challenges inclusion of an instruction which left it open to the jury to find the critical element of knowledge established on the basis of wilful blindness. The complaint is twofold. First, that there was no evidence adduced at trial to put wilful blindness in play as a substitute for proof of actual knowledge. Second, that it was unfair to have done so since the case had been advanced and defended throughout on the basis of actual knowledge.

[122] The appellant does not challenge the substance of the instructions given about wilful blindness in the main charge, as well in the trial judge's responses to questions asked by the jury about wilful blindness during their deliberations.

The Additional Background

[123] Since one of the appellant's complaints is that the trial record was barren of any evidence on the basis of which a reasonable jury, properly instructed, could conclude that the appellant was wilfully blind about the contents of her suitcases, it is helpful to recall some of the circumstances disclosed by the evidence at trial.

[124] The appellant had planned a vacation in Jamaica, a place to which she had previously travelled. Her plan was to travel alone. She had no luggage to take with her.

[125] According to the appellant, she told Jason Moscow about her vacation plans. Moscow was a person of her prior acquaintance whom she had only recently begun to date. Moscow suggested Panama as a vacation destination rather than Jamaica. He pointed out several attractions in Panama.

[126] Jason Moscow also said that his cousin, Richard, was travelling to Panama in the near future. Richard was travelling with three young women. The appellant had met them only briefly through Moscow. Richard also knew a travel agent who could get the appellant a "good deal" on a vacation package. The appellant joined the group.

[127] Jason Moscow supplied two suitcases to the appellant for her trip. He gave her some money to give to Richard who travelled separately from the four women. The appellant's luggage was overweight when she checked in at Pearson for her flight to Panama.

[128] In Panama, the appellant and Teneka Morris shared a hotel room. The appellant did not unpack her suitcases. She simply took things out as she needed them. The suitcases were left in her room where Ms. Morris appears to have spent most of her time. The appellant spent most of her time out of the room.

[129] Richard arranged and appears to have paid most of the expenses for a side-trip for all four women at a resort. Apart from being acquainted with them, Richard appears not to have had any more than a casual relationship with any of them.

[130] The appellant's suitcases displayed no outward signs of tampering. The secret compartments in which the cocaine had been secreted could only be detected by disassembling the suitcase after its contents had been removed and examining it further.

[131] Trial counsel for the appellant, as well as counsel for the co-accused Layne, did not object to the inclusion of wilful blindness as a basis upon which the Crown could prove knowledge. Neither contended that the evidence failed to meet the air of reality standard. Neither complained that it would be unfair to permit the Crown to rely on wilful blindness to prove knowledge because of the way the case had been prosecuted or defended.

The Jury Questions

[132] During deliberations, the jury asked the trial judge, "If a person fails to ask questions about situations that may be suspicious generally, but not suspicious specifically about a drug importation scheme, does that constitute wilful blindness?" After the trial judge gave a response, the jury again asked, "Is it wilful blindness if one fails to ask questions about suspicious circumstances that may suggest illegal activity of any kind? Or in this case must the suspicion leading to questions be related to illegal drugs?"

[133] Trial counsel did not object to the trial judge's answers to any of the jury's questions. In this court, the appellant concedes that the answers given were clear, correct and responsive to the jury's question.

The Arguments on Appeal

[134] The appellant begins with the submission that the evidence adduced at trial failed to meet the air of reality standard. Wilful blindness, the appellant says, is synonymous with deliberate ignorance. And that standard is not met by what the evidence reveals here, a simple failure to inquire. The evidence must demonstrate subjective suspicion coupled with a deliberate failure to inquire for fear of the result.

[135] In this case, the appellant continues, she was not recruited into a scheme that immediately aroused her suspicion. She had made plans to take a Caribbean vacation. She changed her plans at Moscow's urging to go to another destination and to travel with others. She paid for her trip, except for the two nights at a beach resort but also contributed money to that cost. She packed the luggage Moscow provided herself. She had no reason to be suspicious of any hidden compartments. The secret compartments were not readily visible, rather could only be accessed by the use of tools to disassemble the suitcase.

[136] The appellant also says that she was not challenged on this issue by the Crown in cross-examination. And besides, the case had been prosecuted and defended on the basis of actual knowledge. Wilful blindness as a basis to impute knowledge to the appellant only arose because the trial judge raised it at the pre-charge conference. This compounded the unfairness.

[137] The respondent begins with a reminder about the nature of wilful blindness. Recall that wilful blindness does not define the mens rea or fault element in importing any more than it does for any offence. Wilful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea or fault element of an offence. What the doctrine of wilful blindness does is to impute knowledge to an accused whose suspicion is aroused to the point at which she or he sees the need for further inquiries, but who deliberately chooses not to make those inquiries. The culpability in wilful blindness is justified by the accused's fault in deliberately failing to inquire when she or he knows there is reason for inquiry.

[138] In this as in any case, the respondent continues, the evidentiary basis for a finding of guilt includes all the circumstances surrounding the offence, not simply the accused's testimony and corresponding denials. Here, the accused's evidence discloses inherently suspicious events devoid of details and in defiance of common sense. The cumulative effect of the evidence adduced at trial reached the standard required to put the doctrine of wilful blindness in play.

[139] Nor was there any unfairness either to the appellant or to the co-accused Layne in instructing the jury on wilful blindness in addition to actual knowledge. This was not the work of the Crown, rather the doing of the trial judge who raised it at the pre-charge conference. Wilful blindness is commonplace where an accused advances a "blind courier" claim in answer to a charge of importing. While not dispositive of the availability of wilful blindness to establish knowledge, it is of no little significance that neither counsel disputed the evidentiary foundation for the doctrine or claimed unfairness in its inclusion in the charge.

The Governing Principles

[140] The parties occupy common ground in connection with the principles that govern the doctrine of wilful blindness. Their disagreement concerns whether the trial judge was entitled to leave wilful blindness to the jury in connection with proof of knowledge.

[141] Subject to considerations of fairness, to meet the air of reality standard the Crown must be able to point to some evidence in the record which, if believed, would allow the jury to make the findings necessary to engage the doctrine: R. v. Briscoe, 2008 ABCA 327, 237 C.C.C. (3d) 41, at para. 29, aff'd 2010 SCC 13, [2010] 1 S.C.R. 411; see also R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.

[142] Wilful blindness does not define the mens rea or fault element of particular offences. What wilful blindness does is impute knowledge to an accused where that accused's suspicion is aroused to the point where he or she sees the need for further inquiries, but makes a deliberate choice not to make those inquiries. In this way wilful blindness substitutes for actual knowledge whenever knowledge is a constituent of the mens rea or fault element of the crime: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21.

[143] In some instances the evidentiary threshold for wilful blindness may be met by an accused's own evidence. As for example, where his or her testimony discloses inherently suspicious events characterized by unclear details and at odds with common sense and human experience: R. v. Morales, 81 O.R. (3d) 161 (C.A.), at para. 26. But the threshold may also be met by the cumulative effect of several strands of circumstantial evidence from different sources woven together in a mosaic.

The Principles Applied

[144] As I will explain, I would not give effect to this ground of appeal. There was evidence on the basis of which a reasonable jury, properly instructed, could make the factual findings essential to proof of knowledge through the application of the doctrine of wilful blindness.

[145] Before examining the evidentiary predicate said to engage the doctrine of wilful blindness, it is necessary to briefly dispose of three submissions advanced by the respondent to overcome the claim of error advanced by the appellant.

[146] First, the Crown stresses the importance of the defence counsel's failure to object to the inclusion or substance of final instructions on wilful blindness.

[147] As we saw earlier, trial counsel for the appellant (as well as counsel for the co-accused Layne) did not object to:

i. the trial Crown's reference to wilful blindness as a basis on which the jury could find the knowledge component of the fault element proven;

ii. the trial judge's inclusion of wilful blindness as a basis upon which the jury could find the knowledge component of the fault element proven;

iii. the substance of the charge on wilful blindness; or

iv. the trial judge's response to the jury's questions about wilful blindness.

[148] The impact of trial counsel's failure to object to a procedure followed, to evidence admitted or excluded, or to an instruction given or omitted at trial is a variable, not a constant. Said otherwise, there is no fixed relationship between a failure to object and the sustainability of a verdict on appeal. Sometimes failure to object is telling. Other times, of lesser or no importance.

[149] In this case, the issue we are required to resolve is whether the evidence adduced at trial satisfied the air of reality threshold to put the doctrine of wilful blindness in play to establish the knowledge component of the fault element in importing. The resolution of that issue depends entirely on the evidence adduced. A failure to object cannot convert the inadequate to the sufficient. Failure to object is not a makeweight. Silence does not transform a deficit into a surplus.

[150] Second the Crown argues that, in the final charge, the doctrine of wilful blindness was left for consideration only in the case of the co-accused Layne. The Crown relies on a part of the charge where the trial judge says, "It is the Crown position that both accused had actual knowledge of the illicit substances in their suitcases. It is the Crown's further position that Ms. Layne's knowledge can also be imputed because she was wilfully blind to her situation."

[151] Singling out one passage in the charge to ground this submission cannot carry the day. Read as a whole, the charge to the jury and the judge's answer to the jury's questions about wilful blindness do not distinguish the application of the doctrine as between the appellant and the co-accused. Nor does the closing address of the trial Crown. Knowledge could be proven by wilful blindness or established by evidence of actual knowledge. For both.

[152] Third, the basis of the jury's finding of guilt.

[153] The respondent says that the instruction on wilful blindness did not prejudice the appellant because the jury's finding of guilt was likely based on actual knowledge.

[154] In some cases, an appellate court may be able to conclude from an examination of the trial record that in all likelihood a jury reached its verdict on the basis of a particular definition of an offence or mode of participation on which the jury received instructions. But not always. In this case, proof of knowledge was the critical factual issue for the jury to decide. It could be proven, the jury was told, by evidence demonstrating actual knowledge or evidence showing wilful blindness as the trial judge explained it. Nothing in the trial record tilted the likely basis of the jury's verdict towards actual knowledge.

[155] The fact that the jury's questions were limited to wilful blindness without distinction between the appellant and co-accused does not support the conclusion advanced by the respondent – that the jury decided the appellant was guilty on the basis of actual knowledge. Indeed, the question may well reflect a rejection of actual knowledge and a decision based on wilful blindness.

[156] To determine whether there was an air of reality to permit the jury to consider wilful blindness in proof of knowledge requires a consideration of the cumulative effect of the evidence adduced at trial.

[157] On the one hand, the appellant changed her vacation plans. Panama instead of Jamaica. With virtual strangers, instead of alone. With luggage supplied by others. A trip that would cost almost all the money she had. Supplemented several times by Jason Moscow, a man she had only recently begun dating. Some expenses paid by Richard, no last name, Moscow's "cousin" who flew to and from Panama separately.

[158] In Panama, the appellant shared a room with Teneka Morris. She never emptied her suitcase, simply took out only what she needed. Morris had access to the appellant's suitcase when the appellant was absent because Morris, on a Caribbean vacation which included a side-trip to a resort, spent a lot of time in the room, alone.

[159] On the other hand, the alteration of the luggage to permit transport of the cocaine was sophisticated, not visible to the naked eye. The secret compartment was found only by disassembling the suitcase. The empty suitcase was heavier than it should have been, which again was not something detectable by the casual observer.

[160] Although I consider this case as falling close to the line, I am satisfied that, taken as a whole, the cumulative effect of the evidence adduced at trial was sufficient to permit the submission of wilful blindness to the jury as a means of proving knowledge.

[161] In connection with this ground of appeal, the respondent sought leave to introduce as fresh evidence:

i. an affidavit of the appellant;

ii. an affidavit of trial counsel for the appellant; and

iii. transcripts of the cross-examinations of the appellant and trial counsel on their respective affidavits.

[162] The materials proposed for admission as fresh evidence originated as a result of this court's protocol whenever ineffective assistance of trial counsel is being advanced as a ground of appeal. Among other things, the protocol requires an appellant to waive solicitor-client privilege in connection with communications with trial counsel about his or her defence. This waiver results in disclosure of information that would otherwise not be the subject of forensic scrutiny.

[163] In this case, the appellant originally advanced ineffective assistance of trial counsel as a ground of appeal. However, she abandoned that ground before the appeal was perfected. The claim of ineffective assistance of trial counsel formed no part of the appellant's written submissions or oral argument in this court. As a result, the materials compiled in accordance with the protocol formed no part of the record on which we reviewed the grounds of appeal advanced by the appellant.

[164] Despite the appellant's abandonment of ineffective assistance of trial counsel as a ground of appeal against conviction, the respondent asked us to exercise our discretion to receive as fresh evidence under s. 683(1) of the Criminal Code what would have been the record we would have considered had the ineffective assistance of counsel claim been pursued as a ground of appeal. The respondent says that some of these materials are relevant to the issue of wilful blindness and to our "assessment of the appellant's testimony at trial."

[165] Under s. 683(1) of the Criminal Code the "interests of justice" control the reception of all evidence tendered for admission on appeal. Put quite simply, I am not in the least satisfied that it is in the interests of justice to permit reception of the proposed evidence. As I have already explained, the appellant's claim that wilful blindness should not have been left to the jury as a basis upon which knowledge of the contraband could be imputed to her fails. Nor can it be said that the proposed evidence is relevant to our "assessment of the appellant's testimony at trial". That assessment was the province of the jury and is not subject to after-the-fact recalibration here.

[166] I leave for another day the more difficult question whether evidence collected as here is available for use by the Crown in the manner proposed in this case.

Conclusion

[167] In the result, I would allow the appeal, set aside the conviction and order a new trial on the indictment.

Released: October 1, 2018

"David Watt J.A."

"I agree. H.S. LaForme J.A."

"I agree. I.V.B. Nordheimer J.A."