Court File and Parties

COURT FILE NO.: CRIM(J) 121/13 DATE: 20181001

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN T. Jenkins, for the Crown

- and -

SHELDON AITKEN W. Rossmond, for the defence

HEARD: August 13, 14, 15, 16, 17, 2018, at Brampton

REASONS FOR JUDGMENT

André J.

1On April 19, 2011, Shelley Aitken and her husband arrived at the Toronto Pearson Airport from Costa Rica. A Canada Border Services Agency officer (CBSA) later discovered a quantity of cocaine within a Roots knapsack inside Ms. Aitken’s checked luggage. Ms. Aitken immediately claimed that her son, Sheldon Aitken, had placed the knapsack in her luggage; a claim she repeated in a K.G.B. statement to the RCMP in January 2012 and during her testimony in a preliminary hearing on February 25, 2013. However, Ms. Aitken recanted during her trial testimony, while Sheldon Aitken has denied any involvement in the imported cocaine found in his mother’s bag. I must now decide whether the Crown has proven beyond a reasonable doubt that Sheldon Aitken is guilty of importing the cocaine in question.

SUMMARY OF THE EVIDENCE

2Shelley Aitken testified that the Roots knapsack found in her luggage was the one her son had taken to Costa Rica when they travelled there a number of days earlier. She testified that they had travelled to that country after being pressed to go there by her son. He told them that a wealthy friend was paying their travel expenses because he wanted them to do a travel blog about their trip to help publicize his tourist business in Costa Rica.

3Ms. Aitken testified that she did not know who put the knapsack in her suitcase. She testified that she did not remember seeing her son put the knapsack in her suitcase.

4When confronted with her prior statements concerning how the knapsack got into her suitcase, Ms. Aitken replied that it was possible that she implicated her son because she was scared that whoever placed the knapsack in her luggage would harm her and her family. She insisted that she had no recollection of ever seeing her son in her bedroom when she was packing her suitcase.

5I granted the Crown’s application to declare Ms. Aitken an adverse witness pursuant to s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. Under cross-examination by the Crown, Ms. Aitken reiterated that she had no recollection of seeing Mr. Aitken place the knapsack into her suitcase. She conceded that she knew that her son would be incarcerated if convicted. She testified that she did not wish to get herself in trouble if she identified her son as the person who placed the knapsack in her luggage.

6Following an application by the Crown, I admitted the K.G.B. statement of Ms. Aitken and her preliminary trial testimony for the truth of their contents as part of the Crown’s case against Mr. Aitken.

7Mr. Pompeo Frija, Ms. Aitken’s husband, testified that Mr. Aitken asked Ms. Aitken to take the knapsack back to Canada. He had no recollection that Mr. Aitken had travelled to Costa Rica with the Roots knapsack and had not seen the knapsack before Mr. Aitken had asked his mother to take the knapsack back to Canada and give it to his friend, who needed it for school.

8Asked why they had gone to Costa Rica, Mr. Frija replied that Mr. Aitken’s friend, a businessman called Roman, was going to make a promotional video of Costa Rica and wanted them to make notes and take pictures during their trip. Mr. Frija had no prior knowledge of Roman, who Sheldon Aitken claimed paid for their trip to Costa Rica. Mr. Frija was arrested on April 19, 2011, but was not charged.

9Sheldon Aitken testified. He denied placing any bag in his mother’s suitcase. He also maintained that the trip to Costa Rica had been Mr. Frija’s idea and that Mr. Frija had implicated him in the importing scheme because the two had never gotten along. He insisted that he loved his mother dearly and would never have placed cocaine in her luggage. Asked about his friend Roman, he described him as a wealthy businessman who paid his passage to Costa Rica, and paid him $40 a day to perform landscaping duties at Roman’s Costa Rica resort. He only found out that Roman was involved in the illegal drug trade after reading a newspaper article following his return to Canada from Costa Rica in October 2011. He did not return to Canada with his family in April 2011 because he wanted to work at Roman’s condo and spend more time with his Costa Rican girlfriend.

ANALYSIS

10In determining whether or not the Crown has proven Mr. Aitken’s guilt beyond a reasonable doubt, I am guided by the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 SCR 742, regarding the assessment of evidence.

11I am also guided by the established jurisprudence that I can only be satisfied of Mr. Aitken’s guilt beyond a reasonable doubt if his guilt is the only rational inference to be drawn from the evidence that I accept: see R. v. John, [1971] S.C.R. 781, at pp. 791-792; R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. This principle is applicable in this given case given that neither Ms. Aitken or Mr. Frija saw Mr. Aitken with cocaine in his possession.

12The test enunciated in W.(D.) suggests that I should acquit Mr. Aitken if:

(a) I believe his testimony that he did not place the Roots knapsack in his mother’s luggage;

(b) Even if I disbelieve his testimony, but it nevertheless leaves me in a state of reasonable doubt; or,

(c) If I am not satisfied of Mr. Aitken’s guilt beyond a reasonable doubt, based on the totality of the evidence I accept.

13While I am not obliged to commence my analysis of the evidence with a review of Mr. Aitken’s testimony, I find it helpful to do so in this case.

14I am troubled by many aspects of Mr. Aitken’s testimony concerning his trip to Costa Rica and his denials of involvement with the cocaine found in Ms. Aitken’s luggage.

15First, Mr. Aitken testified that he had made two prior trips to Costa Rica at Roman’s request. With respect to the third trip, he testified that Roman had called him and asked for his mother’s number. Roman wanted Mr. Aitken’s family to go to Costa Rica with Mr. Aitken to write articles that would promote Roman’s tourist business.

16I find that Mr. Aitken has tried to disassociate himself from his family’s decision to go to Costa Rica. Ms. Aitken testified that she did not know Roman before the trip. Mr. Frija similarly testified that he had no prior knowledge of Roman. Furthermore, Ms. Aitken testified that it was her son’s idea to travel to Costa Rica and that he persuaded them to go there. I therefore find as a fact that it was Mr. Aitken, not his friend Roman, who had talked Ms. Aitken and members of her family into travelling to Costa Rica.

17Second, I do not believe Mr. Aitken’s testimony concerning his reason for travelling to Costa Rica. He got to know Roman, who he claimed was a successful businessman, through his best friend, who was Roman’s son. Roman hired him to do landscaping at his condominium resort and paid him $40 a day for that purpose. Roman also paid his travel expenses to Costa Rica and his living expenses in that country.

18The source of my difficulty with this evidence stems from Mr. Aitken’s testimony that the local daily wage for landscaping in Costa Rica is $20. It is difficult to conceive or understand the justification for Mr. Aitken being flown to Costa Rica, given food and accommodation and $40 daily, while the services of a local landscaper could have been secured for a significantly lower cost.

19Third, I am troubled by Mr. Aitken’s testimony regarding the knapsack or “backpack” that he travelled with to Costa Rica. He testified in cross-examination that he had a “similar” knapsack to that found in Ms. Aitken’s luggage when he travelled to Costa Rica. He testified further that:

It looks very close but I’m not sure it is the exact one.

20Mr. Aitken also testified that he left his knapsack in Costa Rica when he returned to Canada in October 2011.

21However, there is independent evidence that establishes that the knapsack found in Ms. Aitken’s luggage on April 19, 2011, is the very same knapsack with which Mr. Aitken travelled to Costa Rica. Mr. Aitken testified that he travelled to Costa Rica on CanJet. The knapsack found in Ms. Aitken’s luggage had a CanJet tag attached to it. Furthermore, Mr. Aitken conceded in cross-examination that he never saw his mother or anyone else with a Roots knapsack during the trip to Costa Rica. This is important given defence counsel’s assertion that there is nothing unique about the knapsack and that anyone could have had a similar one. There is therefore no question that the knapsack found in Ms. Aitken’s luggage and that with which Mr. Aitken travelled to Costa Rica are one and the same.

22Fourth, Mr. Aitken gave conflicting evidence regarding whether he had access to his mother’s room on the day he was alleged to have placed the knapsack in her luggage. He testified at the end of his examination in-chief that between April 17, 2011, and April 19, 2011, he did not go into his mother’s room in Costa Rica. He added that only his mother, Mr. Frija and Roman, had access to the room. Under cross-examination however, Mr. Aitken testified that he “might have” gone into his mother’s room between April 17 and 19, 2011.

23Fifth, Mr. Aitken testified that he found out about his mother’s arrest shortly after April 19, 2011. He said he became “sick to my stomach” upon hearing the news and even confronted Roman about his suspicions regarding his friend’s involvement in the drug importation scheme. Despite his sorrow over his mother’s arrest and suspicions about Roman, Mr. Aitken nevertheless stayed in Costa Rica for approximately six months following his mother’s arrest and continued to work for Roman.

24For the above reasons, I find that Mr. Aitken’s testimony is incapable of belief and is incapable of raising a reasonable doubt in the Crown’s case.

Am I satisfied of Mr. Aitken’s guilt, based on the totality of the evidence that I accept?

25Mr. Aitken makes the following submissions regarding the testimony of Ms. Aitken and Mr. Frija:

1. Ms. Aitken was a credible witness and provided a legitimate reason why she falsely implicated her son in the importing scheme;
2. Mr. Frija’s evidence should be rejected because of his dislike of Mr. Aitken; the inconsistencies in his evidence; evidence of collusion, and the “immediate and pending jeopardy” which prompted him to coerce Ms. Aitken to give a statement implicating Mr. Aitken.

Ms. Aitken’s Testimony

26Ms. Aitken testified that she had no recollection of her son placing any bag in her luggage and that she implicated him because she feared for her safety and that of her family.

27I accept Ms. Aitken’s statement to the CBSA, her January 2012 videotaped statement to the RCMP and her preliminary hearing testimony in February 2015, as credible and reliable for the following reasons.

28First, her statement that the Roots knapsack found in her luggage belonged to Mr. Aitken is corroborated by the physical evidence related to the luggage tag, which was attached to the knapsack on April 19, 2011.

29Second, her testimony that Mr. Aitken persuaded her to go to Costa Rica is corroborated by Mr. Frija’s testimony that Mr. Aitken arranged the trip for them to go to Costa Rica.

30Third, her pretrial statements that Mr. Aitken placed the knapsack in Ms. Aitken’s luggage are corroborated by Mr. Frija’s testimony.

31Fourth, it is difficult to comprehend how Ms. Aitken’s avowed fear for her safety and that of her family could have led her to implicate her son in the impugned act. If she was indeed motivated by fear, she could easily have advised the CBSA officer or RCMP that she feared that she had been set up by unsavoury persons in Costa Rica, rather than by her son.

32Fifth, Ms. Aitken had a motive to testify, during the trial, that her son had no involvement in placing the cocaine in her luggage. She testified that she had had a difficult relationship with her son but that their relationship had improved significantly since October 2011. More significantly, she feared being the person who would cause her son to be convicted and imprisoned. She testified that her son was angry with her and that she wanted to have a relationship with him and his children. These reasons, in my view, provide a powerful incentive for Ms. Aitken to profess a lack of memory about who had placed the cocaine in her luggage.

33Lastly, Mr. Aitken’s counsel challenges the reliability of Ms. Aitken’s pre-trial statements on the ground of collusion and/or coercion.

34With respect to the collusion argument, defence counsel submits that Ms. Aitken and Mr. Frija sat side-by-side on the airplane back to Canada and therefore had ample opportunity to rehearse what they would say to the authorities if caught.

35However, Mr. Rosemond never put that scenario to Ms. Aitken when he cross-examined her. Second, Mr. Frija testified that while he spoke to his wife during their return trip to Canada, they never discussed anything concerning the bag Mr. Aitken had placed in Ms. Aitken’s luggage. To the contrary, he testified that he had forgotten about Mr. Aitken’s actions and only remembered it when they were arrested at the Toronto Pearson airport. In my view, Mr. Frija was not shaken in cross-examination on this testimony.

36Additionally, there are some differences between the testimony of Ms. Aitken and Mr. Frija that undermine the defence’s collusion submission. Unlike Ms. Aitken, Mr. Frija had no memory of seeing Mr. Aitken with the Roots knapsack when they travelled to Costa Rica. He testified that Mr. Aitken had a knapsack when they travelled to Costa Rica but could not remember what it looked like. One would have thought that if Mr. Frija was cynically trying to shift responsibility for the importation to Mr. Aitken, he would have had no hesitation in testifying that he had first seen the Roots knapsack in Mr. Aitken’s possession when they travelled to Costa Rica.

37With respect to the “coercion” argument, Mr. Aitken’s counsel submits that Ms. Aitken was in the “custody” of Mr. Frija who purchased the plane ticket to Costa Rica and was potentially in jeopardy before and after she gave her videotaped statement to the police. He submits that Mr. Frija physically controlled Ms. Aitken and drove her to give the K.G.B. statement. In so doing, he shifted responsibility for the drug importation from himself to Mr. Aitken.

38Defence counsel’s claim that Mr. Frija posed a threat to Ms. Aitken before and after she gave her statement is not supported by the evidence. Ms. Aitken testified that she feared the unknown persons involved in the importing. She made no mention of being controlled by Mr. Frija or of being fearful of him.

39Mr. Frija also gave uncontradicted evidence that although he was arrested at the Toronto Pearson Airport, he was never charged with importing cocaine. To that extent, he did not face any jeopardy when he transported Ms. Aitken to the RCMP station to give a statement to the police implicating her son in the importing scheme.

40Additionally, there is no evidence that Mr. Frija physically exercised control over Ms. Aitken. Ms. Aitken never testified to that effect neither did Mr. Frija or even Mr. Aitken. Accordingly, there is no merit to that submission.

Mr. Frija’s Evidence

41Defence counsel challenges the reliability of Mr. Frija’s testimony on the grounds already discussed and on the following additional grounds:

1. Mr. Frija’s testimony is unworthy of belief because of its numerous internal inconsistencies; and,
2. Mr. Frija’s statement about how often he had seen Mr. Aitken in Costa Rica was contradicted by photographs taken during the trip.

42Mr. Frija initially testified that he had only seen Mr. Aitken once or twice during the trip. Under cross-examination, he admitted that he may have actually seen Mr. Aitken four or five times, rather than once or twice.

43In my view, this is not a major discrepancy such that it undermines Mr. Frija’s credibility. Mr. Frija has testified about events that took place more than seven years ago and cannot be expected to have a perfect recall of all the details regarding the trip. These minor discrepancies constitute the hallmarks of truth and do not adversely affect Mr. Frija’s credibility.

44A number of photographs taken during the trip were tendered as exhibits during the trial. Once again, it is unreasonable to expect Mr. Frija to have a perfect recall about the number of trips in which Mr. Aitken accompanied his family. In any event, the photographs are undated and do not necessarily prove that Mr. Aitken frequently accompanied his family when they vacationed in Costa Rica.

45There are other prior inconsistences between Ms. Aitken’s testimony and that of Mr. Frija that undermine any suggestion that the two colluded. Mr. Frija testified that none of his belongings were in his wife’s bag while she testified that items of his clothing were in the bag. Mr. Aitken testified that after packing their luggage, her family went to dinner while Mr. Frija had no recollection of doing so.

46Mr. Frija’s credibility was not impeached given his evidence about the number of times he saw Mr. Aitken during the trip. Indeed, both Ms. Aitken and Mr. Frija testified that Mr. Aitken stayed with Roman during the trip and that they seldom saw Roman during the trip.

47Additionally, Mr. Frija testified that he saw Mr. Aitken purchase a black bag at a flea market in Costa Rica. He initially testified that he did not see the bag but after the Crown showed him his police statement, recalled that he saw the bag in Mr. Aitken’s possession. He was approximately forty feet away from Mr. Aitken when he saw the bag. Mr. Frija testified that he did not see the bag again in Costa Rica. Significantly, Mr. Frija testified that the black bag that contained the cocaine found in Ms. Aitken’s luggage was similar to the one he saw in the possession of Mr. Aitken in the flea market. Furthermore, Ms. Aitken testified in the preliminary hearing on February 25, 2013, that Mr. Aitken purchased the black bag found in her luggage in Costa Rica but did not know where he purchased it.

48Defence counsel submits that Mr. Frija’s testimony is neither credible nor reliable given his dislike for Mr. Aitken. However, I find that Mr. Frija is a credible and reliable witness and that his evidence, in many respects, is supported by that of Ms. Aitken and some of the independent evidence in this trial.

Nature of Substance

49RCMP Constable Jean-Francois Lorist gave uncontradicted evidence that samples taken from the white powdery substance found in the black bag in the Roots knapsack tested positive for cocaine. The total amount of cocaine in the bag was 1.23 kilograms.

CONCLUSION

50Based on the above, I find as a fact that the reason why the Aitken family received a “free” trip to Costa Rica was for the specific purpose of bringing back cocaine to Canada. I also find as a fact that not only did Mr. Aitken have knowledge of this plan, he actively participated in it by arranging to have members of his family travel to Costa Rica on the pretext of taking pictures and helping to write brochures about Roman’s tourist business. I find as a fact that Mr. Aitken placed his knapsack, which he knew contained cocaine, in Ms. Aitken’s luggage, unbeknownst to her. He advised her that the bag was for a friend who needed it for school. However, he did not advise her that the knapsack contained a significant amount of cocaine. I find as a fact that this was the real reason why Mr. Aitken sent his knapsack back to Canada with Ms. Aitken.

51Accordingly, I find that Mr. Aitken’s guilt is the only rational inference to be drawn from the evidence I accept in this trial.

52For the above reasons, I find Mr. Aitken guilty as charged.

André J.