DATE: 20040511

DOCKET: C40769

COURT OF APPEAL FOR ONTARIO

CHARRON, ARMSTRONG and BLAIR JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Leslie Maunder

for the appellant

Respondent

• and -

LEILA ZEYNABO

Christopher Bundy

for the respondent

Appellant

Heard: April 8, 2004

On appeal from the conviction entered by Justice Francine E. Van Melle of the Superior Court of Justice, sitting without a jury, on October 18, 2002.

CHARRON J.A.:

[1] The appellant appeals her conviction for importing 2.2 kilograms of cocaine. The only live issue at trial was whether she knew that the cocaine was concealed in the lid of her suitcase when she returned to Canada from a trip to Jamaica. The trial judge was convinced that she did, and consequently convicted her. The appellant, through counsel, rightly concedes that the trial judge’s ultimate finding on the issue of knowledge was open to her on the evidence. However, the appellant submits that the trial judge, in her appreciation of the evidence, made two errors that necessitate a new trial. I will deal with each in turn.

[2] First, the appellant challenges the trial judge’s finding that “[a] person lifting the lid [of the suitcase] to close it, would have noticed that the lid was heavier than it had been before and that there was something in the lid.” The appellant contends that this inference was contrary to the evidence. In support of this contention, the appellant relies on the evidence of the customs officer who first examined the suitcase. The customs officer testified that she noticed an inconsistency in the lid when she viewed the x-ray image of the suitcase. It would appear from her evidence that she first emptied the suitcase of its contents and then carried it to the x-ray machine. The witness was never asked if she noticed anything different about the suitcase prior to viewing the x-ray. Nonetheless, the appellant argues that one can infer from the custom officer’s testimony that, but for the x-ray, no inconsistency was noticeable. The appellant therefore argues that the custom officer’s failure to notice the heavy weight of the lid supports the appellant’s assertion that she “didn’t suspect anything” when she packed the lid of her suitcase just prior to her departure from Jamaica.

[3] The appellant submits that the customs officer’s testimony should be contrasted with that of the investigating officer. The investigating officer, who examined the suitcase after it had been emptied of its contents, concluded that the lid was heavy. The appellant argues that the customs officer’s testimony should have been afforded greater weight because she had more experience in cases of importation than the investigating officer. Also, she had contact with the suitcase when it was in the same state as when the appellant had it, that is, when it was fully packed.

[4] We do not know whether this argument was made at trial because the submissions of counsel were not transcribed. If the argument was not made, the trial judge can hardly be faulted for failing to address it in her reasons. In any event, even if the argument was made, it was within the trial judge’s purview to reject it and to accept the investigating officer’s testimony on this point. Further, we do not accept the appellant’s contention that the trial judge’s finding regarding the weight of the lid was contrary to the evidence. In addition to the testimony of the investigating officer about its heavy weight, the actual exhibits were filed and were available for examination. The appellant was asked in cross-examination to lift the lid of the suitcase with the 2.2 kilograms of cocaine in it. While she conceded that it was “pretty heavy”, she maintained that she did not suspect anything. Finally, it is apparent from the record that the trial judge herself examined the exhibits. She expressly reserved her decision to consider the evidence and “take a look at the exhibits.”

[5] In all the circumstances, we see no reason to interfere with the trial judge’s finding on this issue.

[6] Second, the appellant contends that the trial judge, in reaching her decision, failed to consider cogent circumstantial evidence that supported the defence position. The appellant states that this error is apparent from the trial judge’s statement that “[t]he only evidence against knowledge is Ms. Zeynabo’s testimony” [emphasis added]. The appellant argues that, in addition to her testimony, other items of circumstantial evidence supported her position that she did not know of the narcotics, including: that the reason for her trip to Jamaica was her mother-in-law’s funeral, a fact that was evidenced by the production of a death certificate at her trial; that nothing about her behaviour upon her arrival at the airport in Toronto was suspicious; and that she did not take any steps to conceal the fact that the suitcase was hers when she collected it at Pearson airport.

[7] Again, on this ground, it is our view that it was entirely within the trial judge’s domain to draw any reasonable inferences that were open to her on the evidence. The trial judge concluded that there was “strong circumstantial evidence of knowledge.” Counsel fairly concedes that there was evidence to support this conclusion. It is not our function to retry this case. We would not give effect to this ground of appeal.

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

Released: LC MAY 11 2004 Signed: “Louise Charron J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree R.A. Blair J.A.”