COURT FILE NO.: CR-19-1768 DATE: 20240411
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN :
HIS MAJESTY THE KING A. Hrivnak, for the Crown
- and -
Brenda Catherine DUFORT E. Janta, for the Defendant
HEARD: March 19, 20, & 21, 2024
REASONS FOR JUDGMENT
BALTMAN J.
Introduction
[1] Ms. Dufort is charged with importing approximately two kilos of cocaine, found inside the suitcase she brought from Trinidad into Canada. The sole issue at trial is whether the Crown has proven beyond a reasonable doubt that she had the requisite knowledge.
Factual Overview
[2] The Crown’s evidence consists of Border Services Officer (BSO) James LeBlanc and RCMP Officer James McFetridge. The defence evidence was that of the accused, Ms. Dufort. Counsel helpfully filed an Agreed Statement of Facts, which addressed the nature and weight of the substance, its value, and continuity.
[3] Except where stated otherwise, the following facts, which emerged from the evidence at trial, are largely agreed upon.
[4] Ms. Dufort is 47 years old and separated from her husband. She has no children. In March 2019, when this incident occurred, she was self-employed as a courier driver and earning approximately $4,000-$5,000 per month, supplemented with some part-time income from delivering pizza in the evening. She was sharing an apartment with a friend. She has no criminal record.
[5] Her then husband was living in Cuba. Shortly before this incident she had begun the process of sponsoring him to immigrate to Canada as a permanent resident. She visited him frequently in Cuba and on occasion they met in Barbados or Trinidad, countries he was able to visit without a visa.
[6] On this occasion she departed Toronto on February 23, 2019. She stopped briefly in Barbados and then headed to Trinidad, where she vacationed with her husband.
[7] She returned to Toronto on March 3, 2019. She travelled alone. Her baggage consisted of one large, checked suitcase, a small carry-on suitcase, and a purse. She passed through the primary inspection area without incident. However, while she was at the baggage terminal, a drug-sniffing dog signalled that her checked suitcase possibly contained contraband. As a result, she was referred to the secondary inspection counter, where she dealt with Border Services Officer LeBlanc.
[8] LeBlanc noted several stamps on her passport, suggesting frequent travel. He asked her a number of questions, including the standard three: are these your bags, did you pack them yourself, and are you aware of the contents. She answered “yes” to all three. He agreed most people answer “yes” to all of the standard three questions, even when something suspicious is later found. He further agreed there was nothing suspect in Ms. Dufort’s demeanour.
[9] LeBlanc proceeded to examine the large, checked suitcase. After removing clothing and other personal items, he noticed an orange tote bag containing a white Xbox. He removed the Xbox. It was approximately 18” wide, 12” deep and 6” high and felt heavier than he expected.
[10] Because the Xbox was heavier than usual, he decided to take it over to the Xray unit. This revealed multiple rectangular shapes that he could not identify. He therefore advised Ms. Dufort that he would like to examine the box further. She was very friendly and accommodating, and replied “yes, no problem, you’re just doing your job”. She also explained that she “just got” the Xbox on this trip and “has never played it before”.
[11] LeBlanc removed the white casing from the exterior of the box and then pried open the inner stainless-steel box. Inside he saw two brick shaped objects that were white in colour. At that point, Ms. Dufort appeared “concerned”. Based on the shape and colour of the bricks, and the way they had been concealed, he thought he had reasonable grounds to suspect Ms. Dufort was smuggling or attempting to smuggle suspected cocaine. He therefore placed her under arrest and recited her rights.
[12] Shortly after, Ms. Dufort spoke with duty counsel. After that call was completed she appeared somber and “slouched over”. At approximately 1:00 p.m. the RCMP arrived and took custody of Ms. Dufort along with the evidence.
[13] LeBlanc acknowledged that the cocaine was “quite concealed” within the Xbox. It was not at all apparent by simply looking at the Xbox from the outside that it contained anything suspicious. And it was only slightly heavier than how a typical Xbox might feel. If someone didn’t handle Xboxes regularly, she might not realize there was anything odd about its weight.
[14] James McFetridge was the RCMP officer who took over custody of Ms. Dufort. He conducted a 9-minute video interview of her and obtained a search warrant for an extraction from her cellphone. The cellphone records that emerged are critical to this case and will be discussed in detail below.
[15] Ms. Dufort was very anxious and had what appeared to be a panic attack while she was in the cell. She was hyperventilating and extremely upset. However, Ms. Dufort was cooperative and responded to his questions. She seemed surprised by the discovery of narcotics in the Xbox. She told him she thought she was bringing back “currency”.
[16] Ms. Dufort explained to McFetridge that while she and her husband were vacationing in Trinidad, they met another couple, named “Madeleine and Chiney”, who were staying at another apartment in the same Airbnb. The two couples spent time together over the course of a few days, and they asked her to bring the Xbox back to Toronto. She believed there was currency inside but denied knowing there were any narcotics.
[17] Ms. Dufort was fingerprinted and cooperated with that process. McFetridge confirmed that Ms. Dufort’s fingerprints were not found on the package of cocaine, or on the inside or outside of the Xbox.
[18] The total amount of cocaine seized from the Xbox was 2064.1 grams, or approximately 2 kilograms. As of 2019, the value in Canada of that cocaine was between $99,000 and $109,000, if sold by the kilogram, and between $165,000 and $227,000, if sold by the gram.
Legal Framework
[19] Ms. Dufort is presumed innocent of the offence charged. It is the Crown that must prove her guilt beyond a reasonable doubt. That high standard is much closer to absolute certainty than it is to probable guilt.
[20] To find Ms. Dufort guilty, I must be “sure” that the Crown has proven each of the elements of importing. Moreover, I must be satisfied on the totality of the evidence there is no reasonable doubt as to her guilt, in accordance with the three-stage approach set out in R. v. W.(D.), [1991] 1 S.C.R. 742.
[21] In this case, the only issue to be decided is whether the Crown has proven beyond a reasonable doubt the mens rea, or mental element of the offence. The mens rea for importing can be proven by establishing either actual knowledge or wilful blindness: R. v. Briscoe, 2010 SCC 13, at para. 21.
[22] Wilful blindness is recognized in Canadian criminal law as a substitute for actual knowledge. It imputes knowledge to an accused where the 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”: R. v. Burnett, 2018 ONCA 790, at para. 142.
[23] A person is wilfully blind if they are deliberately ignorant – i.e., they “shut their eyes” because they know or strongly suspect looking would fix them with knowledge. Thus, it is close to actual knowledge: Briscoe, at paras. 21-23.
[24] Where an accused possesses a controlled substance with a significant value, as is the case here, a trier of fact may infer both knowledge of the nature of the substance and 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”: Burnett, at para. 64; R. v. Bains, 2015 ONCA 677, at para. 157, leave to appeal refused, [2015] S.C.C.A. No. 478.
Evidence of Ms. Dufort
[25] Ms. Dufort testified that for some time before this trip she purchased marijuana on a weekly basis, for personal use. Her dealer went by the name “Red”; she does not know his real name. She never attended his residence; they would usually meet at a Tim Hortons location close to where he lived. Typically, she purchased 5-6 grams of marijuana per week.
[26] She knew that Red had a marijuana business down south, because at one point he had asked her if she knew anybody that could bring marijuana down south for him. She told him she did not.
[27] Ms. Dufort testified that in the year preceding this trip she travelled extensively, including three trips to Cuba, one to Barbados and another to Trinidad. She cannot recall precisely when she bought her ticket for this trip but estimates it was two to three weeks before. She testified she purchased it at a Flight Centre and paid for it with her debit card.
[28] After the trip was booked and approximately one week before her departure, she mentioned to Red that she was travelling to Trinidad. He then asked her for a “favour”, namely to bring some money back to Canada. He offered $5,000 in compensation. He did not tell her how much cash she would be bringing back. She conceded that the fact that she was being paid $5,000 suggests that it was a large amount of cash, which, in retrospect, was “not the brightest thing” for her to do.
[29] She consented to bring the money, in part because he assured her it was “just currency”, not narcotics. She also trusted him to some degree as she had known him for some time. Moreover, the $5,000 in compensation would come in handy for the sponsorship process she was engaged in on behalf of her husband.
[30] Red explained that his friend in Trinidad would contact her once she was there and arrange to bring her a package of cash.
[31] She emphasized that Red did not ask her to bring back cash until after she had booked her flights and her Airbnb for this trip.
[32] On the day before she was to return to Toronto, Red’s associate came to the B and B where she was staying. They had been communicating on WhatsApp to arrange this meeting. She and her husband met him outside the B and B. Red’s associate handed her an orange bag with an Xbox inside. She did not ask him what was in the box. She assumed it was money because that’s what Red had told her she was bringing back. The plan was for her to contact Red and deliver the box to him after she exited Pearson airport in Toronto. [1]
[33] On her declaration card that she filled out for Canada Customs, she stated that she was bringing back $100 worth of goods. She conceded that was misleading given that she thought she was bringing back $5,000 in cash.
[34] At trial, Ms. Dufort was asked about numerous text messages between her and her friend Theresa, in the period from February 2 to February 19, 2019. Several of them refer to “Damian”, a man she had met in Barbados a few years earlier, who did construction work and was also a drug dealer. Damian had asked her to bring drugs down south but she refused. However, she knew Theresa needed money so she asked her if she wanted to do it. At the same time, she cautioned Theresa not to bring back “white stuff”, i.e. cocaine, because Theresa “has kids and is a single mom” and transporting cocaine was a “huge risk”.
[35] In many of the text exchanges with Theresa, Ms. Dufort exhorts her to get a passport “as soon as possible.” And in their text exchanges both women use language that suggests involvement in the exportation of narcotics.
[36] In particular:
#832, Feb 2, 11:31 p.m., from Ms. Dufort: “12462404104. Damian” #833, Feb 2, 11:49 p.m., from Ms. Dufort: “Did u get him?” #834, Feb 3, 11:52 p.m., from Theresa: “Will add them now” #835, Feb 3, 11:53 p.m., from Ms. Dufort: “K. Hes cool.” #868, Feb, 3, 2:03 p.m., from Ms. Dufort: “U good with Damian?” #869, Feb 3, 2:04 p.m. from Theresa: “Haven’t gotten to talk much with them was at a dinner with the kids and friends when he tried to video call.” #870, Feb. 3, 2:04 p.m. from Ms. Dufort: “Ah. Ok. Touch bsse today. He told me u were busy” #871, Feb. 3, 2:06 p.m. from Ms. Dufort “And no return. That’s a risk. U got kids. I told him don’t even ask. Lol” #885, Feb 3, 2:14 p.m., from Theresa: “ We bringing it both ways ?” #886, Feb 3, 2:20 p.m., from Ms. Dufort: “ Nope. U come back clean ” #1743, Feb 13, 12:49 p.m., from Ms. Dufort: “Hey, Need u to get that passport pic asap pls!” #1762, Feb 13, 2:27 p.m., from Ms. Dufort: “Hey” #1763, Feb 13, 2:34 p.m., from Theresa: “Hey gm” #1764, Feb 13, 2:36 p.m., from Ms. Dufort “Did you get mu message” #1767, Feb 13, 2:39 p.m., from Theresa: “Yes I did. Ok.” #1771, Feb 13, 3:28 p.m., from Ms. Dufort: “Kk. Need it asap” #1772, Feb 13, 3:29 p.m., from Theresa: “When is he wanting us to go?” #1773, Feb 13, 3:29 p.m., from Ms. Dufort: “ We will figure that out once u get passport” #1971, Feb 15, 5:32 p.m., from Ms. Dufort: “Did u get pic” #1972, Feb 15, 5:33 p.m., from Theresa: “not yet still noon” #1973, Feb 15, 5:33 p.m., from Ms. Dufort: “Ok. Just they keep asking me.” #2385, Feb 19, 2:43 p.m., from Ms. Dufort: “Hey. U going today?” #2397, Feb 19, 3:50 p.m., from Theresa: “Not sure about today probably tomorrow.” #2398, Feb 19, 3:50 p.m., from Ms. Dufort: “Omg” #2399, Feb 19, 3:51 p.m., from Theresa: “??? I didn’t say today I said I would some time this week. Y r they bugging u?” #2400, Feb 19, 3:52 p.m., from Ms. Dufort: “Because they ppl are waiting down there” #2402, Feb 19, 3:57 p.m., from Theresa: “Ok so u book to go for this time while I work me stuff out . Still working on who can watch the kids and dog. Jim can’t right now having to many issues with all the people he has staying at his place. Not sure when that will get fixed so trying to find someone else possibly Hilary.” #2403, Feb 19, 4:00 p.m., from Ms. Dufort: “ They have already got stuff for 2 of us ready . Great now thie screws everything. Thanks alot. Now im in trouble.” #2404, Feb 19, 4:01 p.m., from Theresa: “How would u be in trouble when did even have it planed for.” #2405, Feb 19, 4:01 p.m. from Theresa: “U said nothing was planed yet. Till I got the passport and pics.” #2406, Feb 19, 4:02 p.m, from Ms. Dufort: “ The product has been arranged up here when I told rhem yes. Yes. No plane ticket bought yet til ur passport.” #2407, Feb 19, 4:04 p.m., from Ms. Dufort: “Whatever. I cant talk. Need to figure out how to tell them. Im fucked and now they are fucked. This will cause a lot of trouble for me.” #2412, Feb 19, 4:12 p.m., from Ms. Dufort: “They wanted this done in the next 2 weeka !! Because he buys the product herw to send down!! When I said yes we would he bought it all. I told u this needed to be asap that’s why the rush on passport” #2415, Feb 19, 4:12 p.m., from Theresa: “K sorry not sure what to say I am still getting it. And still trying to arrange the kids being watched., Jest see that hey r in a rush so not sure what’s best.” #2416, Feb 19, 4:15 p.m., from Ms. Dufort: “Well I just told him and now I am responsible to sell or buy 10000 in product . Im now in debt with these guys!” #2417, Feb 19, 4:16 p.m., from Theresa: “That’s crazy. For what they still have the product.” #2418, Feb 19, 4:17 p.m., from Ms. Dufort: “With no 2 ppl to bring it. I can’t carry it all ” [Bolding and underlining added, typos remain]
Analysis
[37] I do not accept Ms. Dufort’s explanation of her involvement in this matter, for several reasons.
[38] First, her repeated denial of any involvement to export drugs out of Canada was unbelievable. Several of the text messages set out above, individually but especially collectively, contradict that story. The messages repeatedly indicate that she is one of the participants in the project. For clarity, I repeat three in particular:
#2403, Feb 19, 4:00 p.m., from Ms. Dufort: “ They have already got stuff for 2 of us ready . Great now thie screws everything. Thanks alot. Now im in trouble.” #2412, Feb 19, 4:12 p.m., from Ms. Dufort: “They wanted this done in the next 2 weeka !! Because he buys the product herw to send down!! When I said yes we would he bought it all. I told u this needed to be asap that’s why the rush on passport #2418, Feb 19, 4:17 p.m., from Ms. Dufort: “With no 2 ppl to bring it. I can’t carry it all ”
[39] Ms. Dufort provided a variety of explanations for these messages, ranging from they were “typos” made while she was driving, to inadvertently saying “we” when she meant “you”, or that the word “we” was being used “generically” rather than referring specifically to herself and Theresa. When asked about her comment at text #2403 – “they have already got stuff for 2 of us ready” – she suggested “us” did not include her, it meant two of us “in general”. The reference to “we” in text #2412 meant “we in general”, or “we as a whole.” And her comment in text #2418 – “I can’t carry it all” – was a “typo”; she meant to say “you” can’t carry it all.
[40] I find Ms. Dufort’s explanations for these messages unbelievable, even individually, but especially collectively when understood as part of the same conversation relating to a plan to export narcotics. Together the texts make it clear that, contrary to Ms. Dufort’s evidence, she was always intending to transport drugs down south along with Theresa. While Ms. Dufort is not charged with the exportation of narcotics, her repeated perjury on this topic seriously undermines her credibility regarding the importation of narcotics.
[41] Second, Ms. Dufort’s assertion that the text messages refer to some other trip is not credible. It is apparent from the text message of February 19th – where she refers to the “rush on passport” and says “they wanted this done in the next 2 week[s]!!” – that she is referring to this trip, and the need to book it urgently. I reject Ms. Dufort’s evidence that she had already purchased her ticket 2-3 weeks earlier for an “unrelated” trip that had nothing to do with Theresa.
[42] The only reasonable inference from the evidence is that Ms. Dufort initially expected that she along with Theresa would export product on behalf of Damian. But when Theresa failed to get her passport on time, Ms. Dufort scrambled and in a matter of days went on her own. As she said herself, “I am responsible to sell or buy 10000 in product. Im now in debt with these guys!”
[43] As for Ms. Dufort’s activities on March 3, 2019, when she returned to Canada, I find she knew or was wilfully blind to what was in the Xbox. She clearly harboured real suspicions that the Xbox contained not money but drugs – what she referred to repeatedly as “product”. And she knew that she in particular would or could be bringing back drugs; hence when Teresa asked, at text #885, “ We bringing it both ways?”, she responded “Nope. U come back clean” [emphasis added]. In other words, Ms. Dufort expected that she, unlike Theresa, may well be bringing product “both ways”.
[44] Moreover, she made no meaningful inquiries to alleviate those suspicions. When Red’s associate handed her the Xbox in Trinidad she did not ask him what was inside. She didn’t even take it out of the orange bag. While it’s true that the drugs were well concealed inside the Xbox and therefore would not have been visible, the fact that she didn’t even try to look at it suggests that, despite clearly suspicious circumstances, she didn’t want to know the contents.
[45] Further, while Red allegedly told her she was “only” bringing back currency, she knew both Red and Damian were drug dealers, and that they dealt drugs on an international scale. Significantly, she warned Theresa – “because she has kids and is a single Mom” – not to bring back cocaine. It defies common sense that she would warn her friend against this activity but at the same time hold no suspicions that she – who did not have children – would be used to smuggle cocaine back to Canada.
[46] In sum, what emerges from Ms. Dufort’s story is (a) she was being paid $5,000 by an international drug dealer to bring a package back to Canada; (b) she knew these men dealt in cocaine (and in fact flagged that risk for Theresa), and (c) she accepted, without question or inspection, the package that was delivered to her and placed it in her luggage.
[47] I find that here there was at least subjective suspicion coupled with, at best, a deliberate failure to inquire for fear of the result, but more likely an absence of inquiry because the result was known. In other words, wilful blindness at a minimum, but more likely actual knowledge.
[48] These reasons alone result in a conviction. In addition, there is the glaring inconsistency I referred to earlier (see paras. 16 & 32), in Ms. Dufort’s various accounts of how she came in possession of the Xbox. That may well also impact her credibility, but as neither counsel questioned her about it, nor addressed it in submissions, I have not relied upon it.
[49] As I noted above, in order for me to convict Ms. Dufort I must be satisfied on the totality of the evidence there is no reasonable doubt as to her guilt, in accordance with the three-stage approach set out in W.(D.). Because of the deficiencies in the evidence advanced for the defence, which I have discussed above, I neither believe Ms. Dufort nor find that any of the evidence relied upon by the defence raises a reasonable doubt. Moreover, when I consider the rest of the evidence that I do accept, I am convinced beyond a reasonable doubt Ms. Dufort knew or was wilfully blind that on this occasion the luggage she brought back to Canada contained narcotics.
Conclusion
[50] I find beyond a reasonable doubt that Ms. Dufort either knew she was importing drugs into Canada or was wilfully blind to that fact. Accordingly, she is guilty of the offence charged.
Footnote:
[1] As is apparent from para. 16 above, Ms. Dufort’s explanation of how she acquired the Xbox was different at trial from what McFetridge claimed she told him immediately following her arrest. Neither counsel posed any questions to Ms. Dufort regarding this discrepancy or addressed it during their closing submissions.
Baltman J. Released: April 11, 2024