Her Majesty the Queen v. Morales [Indexed as: R. v. Morales]

81 O.R. (3d) 161

Court of Appeal for Ontario,

Goudge, Gillese and LaForme JJ.A.

June 13, 2006

Criminal law -- Narcotics offences -- Mens rea -- Wilful blindness -- Accused being convicted of importing cocaine concealed in bottles of liquor -- Accused claiming that he agreed to carry bottles of liquor to Canada to give to unknown man who would meet him at airport at request of man he had just met in Antigua -- Accused throwing away phone number of unknown man after being arrested -- Accused arguing wilful blindness and should not have been put to jury as no air of reality -- Accused's evidence disclosing inherently suspicious circumstances and defying common sense -- Trial judge not erring in leaving wilful blindness with jury -- Appeal from conviction dismissed.

Criminal law -- Evidence -- Demeanour -- Accused being convicted of importing cocaine concealed in liquor bottles -- Customs and police officer testifying accused nervous and sweating profusely during questioning -- Accused arguing amounting to inadmissible evidence of post-offence conduct of little probative value -- Demeanour evidence relevant to accused's conduct during offence not evidence of post-offence conduct -- Admission of demeanour evidence not rendering trial unfair -- Appeal from conviction dismissed.

The accused was charged with importing cocaine. The cocaine was concealed in bottles of liquor. The accused testified that while on a business trip to Antigua, he met a man named Fred, who asked him to give the bottles of liquor to a friend of his in Canada who would meet him at the airport. The Customs officer who questioned the accused in a secondary inspection area at the airport in Canada and the RCMP officer who took custody of the accused from the Customs officer both testified that the accused was sweating unusually and appeared nervous. The accused was convicted. He appealed.

Held, the appeal should be dismissed.

The evidence of the accused's demeanour was not evidence of post-offence conduct; rather, it was some circumstantial evidence about his appearance and behaviour during the commission of the offence. This type of evidence from Customs officers can be admissible to establish that the accused person was aware of the contents in question. The use of the evidence in this case did not render the trial unfair. Defence counsel at trial made no objection to the admission of the evidence. The accused gave evidence explaining his innocent reasons for his demeanour, and much of his evidence was confusing and vague. Defence counsel vigorously challenged the veracity of the evidence that the accused was sweating. Finally, the jury was fully and properly instructed by the trial judge on reasonable doubt and the treatment of the accused's evidence.

The trial judge did not err in leaving wilful blindness with the jury as an alternative mens rea to the accused's actual knowledge that he was importing cocaine. There was an air of reality to the Crown's theory of wilful blindness. The accused's evidence revealed inherently suspicious events with details that were unclear and defied common sense. The accused admitted during his testimony that his conduct "looked stupid". In those circumstances, the jury was entitled to believe some, all or none of his evidence and, in doing so, wilful blindness became [page163] an issue. The accused's evidence alone was capable of supporting a finding of deliberate ignorance. The trial judge correctly instructed the jury on the nature of wilful blindness.

APPEAL from a conviction entered by Seppi J. of the Superior Court of Justice, sitting with a jury, dated June 24, 2004, for importing cocaine.

Cases referred to R. v. Levert, 2001 8606 (ON CA), [2001] O.J. No. 3907, 159 C.C.C. (3d) 71 (C.A.), consd Other cases referred to R. v. Cinous, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 210 D.L.R. (4th) 64, 285 N.R. 1, 162 C.C.C. (3d) 129, 49 C.R. (5th) 209, 2002 SCC 29; R. v. Goulart-Nelson, [2004] O.J. No. 4010, 63 W.C.B. (2d) 190 (C.A.); R. v. Lagace, 2003 30886 (ON CA), [2003] O.J. No. 4328, 181 C.C.C. (3d) 12 (C.A.); R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, 119 D.L.R. (4th) 464, 171 N.R. 360, 93 C.C.C. (3d) 1, 34 C.R. (4th) 1 Authorities referred to Commission on Proceedings Involving Guy Paul Morin, The Report of the Commission on Proceedings Involving Guy Paul Morin, vol. 2 (1998) Palmer, A."Guilt and the Consciousness of Guilt: The Use of Lies, Flight and other 'Guilty Behaviour' in the Investigation and Prosecution of Crime" (1997) 2 Mel. U. Law Rev. 95

James Lockyer, for appellant. Nick Devlin, for respondent.

The judgment of the court was delivered by

[1] LAFORME[CF1 J.A.: -- The appellant was charged with importing a prohibited substance, namely, cocaine. At his trial he testified in his own defence and provided his explanation of the events that gave rise to the charge. In essence, his testimony was as follows: he was left standing in the arrivals section at Pearson International Airport with a box containing four 1.14 litre-sized liquor bottles. Unbeknownst to him, these bottles contained $100,000 worth of cocaine. The appellant was to give the bottles to a person unknown to him but with the name "Michael". He also testified that he had intentionally thrown out the only piece of paper containing the contact information for the man who had consigned these goods to him.

[2] The jury found the appellant guilty of importing a prohibited substance. He was sentenced to six years imprisonment. He appeals only his conviction.

Background

[3] The appellant, a Canadian, testified that he flew to Antigua on a business trip. A man named "Fred", whom he had just met while playing golf in Antigua, had given him bottles of liquor to give to a [page164] friend of Fred's in Canada who would be at the airport to meet him. The appellant, who considered this to be a perfectly normal request for a local to make to a visitor, agreed. Fred told the appellant that he had arranged for his friend to meet the appellant at the airport.

[4] The appellant said that he and Fred had exchanged telephone numbers in Antigua, although when the appellant subsequently tried the number, it was not in service. The appellant carried the box containing the liquor bottles as personal luggage onto the plane.

[5] On arrival in Toronto, the appellant presented a Customs Declaration Card, which declared that he was carrying five litres of alcohol. This was in excess of the amount allowed and he was therefore referred to secondary customs.

[6] The secondary customs officer examined the liquor bottles and noticed that the seal on one of the bottles was broken. The Custom's officer testified that when he confronted the appellant with this observation,

[a]t that point [the appellant] began to sweat profusely, as soon as I showed him the bottle. He seemed nervous.

[7] The Customs officer conducted a test on the substance in the liquor bottle, which proved to be cocaine. He arrested the appellant for smuggling and contacted the R.C.M.P. who then took custody of the appellant. The police officer's evidence was:

At the time Mr. Morales did appear quite nervous. I did notice him sweating on the forehead, but other than that, his demeanour was all right. He appeared nervous, but he was -- he seemed to be okay.

[8] The appellant testified that he threw out the phone number that he had been given for Fred. He did this after he had been arrested and charged with importing cocaine, and after he had contacted a lawyer and discussed the phone number with him. He claimed to have thrown the piece of paper out because the number was not real.

[9] As previously noted, the liquor bottles contained approximately $100,000 worth of cocaine.

[10] The appellant contends that the trial judge committed two errors that can be summarized as follows:

(1) The evidence of the appellant's physical demeanour and utterances to Customs officers and police during the importation should not have been admitted.

(2) Wilful blindness ought not to have been left with the jury because: (i) there was no air of reality to it; and, or alternatively, (ii) the trial judge erred in her charge to the jury on wilful blindness. [page164]

[11] I would dismiss the appeal for the reasons that follow.

The Convicton Appeal

(1) Demeanour evidence

[12] Two key Crown witnesses testified that the appellant was sweating in an unusual manner. The first was Customs Officer Seeley who questioned the appellant in the secondary inspection area. The second was Police Constable Dhillon of the R.C.M.P. who later took custody of the appellant from the Customs officer. Each of them was fully cross-examined by defence counsel on this issue.

[13] The appellant relies primarily on the decision of Rosenberg J.A. in R. v. Levert, [2001] O.J. No. 3907, 159 C.C.C. (3d) 71 (C.A.) to assert that the demeanour evidence in this case ought not to have been admitted because its probative value was outweighed by the prejudice to the appellant. The Crown argues that the demeanour evidence in this case is contemporaneous with the offence and is therefore proper circumstantial evidence that the jury could consider in arriving at its verdict.

[14] The evidence of the Customs officer is not post-offence conduct; rather, it is some circumstantial evidence about the offender's appearance and behaviour during the commission of the offence. This court has held that this type of evidence by Customs officers can be admissible to establish that an accused person was aware of the contents in question: see R. v. Goulart-Nelson, [2004] O.J. No. 4010, 63 W.C.B. (2d) 190 (C.A.).

[15] Assuming that the trial judge ought to have first ruled on the admissibility of the evidence, in the context of this case, the use of the evidence did not render the trial unfair. I reach this conclusion for several reasons.

[16] First, defence counsel made no objection to the admission of this evidence, and although this is not dispositive of the issue, it is a factor to consider. Second, the appellant gave evidence explaining his innocent reasons for his demeanour, and much of his evidence in this regard was confusing and vague. It no doubt impacted on the jury's assessment of his credibility. Third, defence counsel vigorously challenged the veracity of the evidence that the appellant was sweating. Counsel attacked this evidence as being tainted and given by witnesses with an interest in the outcome of the case.

[17] Finally, the jury was fully and properly instructed by the trial judge on reasonable doubt and the treatment of the appellant's evidence pursuant to R. v. S. (W.D.), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, 93 C.C.C. (3d) 1. The trial judge's charge on the evidence of the appellant's reaction was full, fair and balanced. [page165] She accurately summarized the evidence and drew the jury's attention to the competing inferences the parties suggested should be drawn from it.

[18] Before leaving this, I would add that, had the admissibility of the evidence been challenged, the trial judge ought to have considered the concerns expressed by Rosenberg J.A. in Levert. Levert was a case that involved evidence of the accused person's demeanour when the young complainant's foster mother and her husband confronted him with sexual assault allegations. Rosenberg J.A. noted that the evidence in that case could only be relevant to post-offence conduct.

[19] In Levert, Rosenberg J.A. concluded that evidence of "adoption by silence" by an accused person should be approached with caution. [See Note 1 below] He goes on to hold that the inference drawn from this type of demeanour evidence is based on perceptions of how an accused person should respond in what are often extreme and unusual circumstances. Such perceptions might well be inaccurate, and consequently the probative value of the evidence may be low and its potential prejudicial effect high. It seems to me that the faulty inferences that may be made from a person's post-offence conduct can apply equally to other circumstances, such as those in this case.

[20] However, in the circumstances of this case, for the reasons I have given I am not satisfied that the use of the evidence rendered the trial unfair. Accordingly, this ground of appeal is dismissed.

(2) Wilful blindness

[21] The trial judge acceded to the Crown's request to leave wilful blindness with the jury as an alternative mens rea to the appellant's actual knowledge that he was importing cocaine. The appellant argues that there was no air of reality to the Crown's theory of wilful blindness and that it was an error for the trial judge to leave it with the jury. Thus, as the jury could have relied on wilful blindness to convict, this amounts to an unreasonable verdict and the conviction ought to be quashed.

(i) Air of reality

[22] I turn first to the issue of air of reality. The question in the context of this case is: could a properly instructed jury acting [page166] reasonably find that the appellant was wilfully blind to the fact that he was carrying cocaine? See R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 162 C.C.C. (3d) 129, at para. 47.

[23] For wilful blindness to be established, the Crown need only prove that the failure to inquire was motivated or informed by a desire to avoid the truth, or knowledge on the part of the accused that avoiding an inquiry will shield his eyes and ears from the guilty truth: see R. v. Lagace, [2003] O.J. No. 4328, 181 C.C.C. (3d) 12 (C.A.), at para. 28.

[24] The appellant himself admitted that taking the box of bottles from Fred "looks stupid". The appellant testified he met Fred while on a business trip to Antigua. He did not know Fred's last name, but agreed to Fred's request to take liquor back to Canada for Fred's friend. His evidence also included such things as: he had only the name "Michael" as a delivery contact and no address or phone number for Michael; and he had no description of Michael and no way to contact Michael even though he was in possession of property for Michael. There is more such similarly vague evidence of the appellant; however, for purposes of this decision these examples will suffice.

[25] In my view, it was open to the jury to ask whether the appellant's "being stupid" or "looking stupid" in all the circumstances as described by him that resulted in the commission of a serious criminal offence, was as a result of his wilful blindness.

[26] The appellant's evidence revealed inherently suspicious events with details that were unclear and defied common sense. In these circumstances the jury was entitled to believe some, all or none of his evidence and, in doing so, wilful blindness became an issue. The appellant's evidence alone was capable of supporting a finding of deliberate ignorance. It was open to the jury to find that the appellant must have suspected that there was more than just liquor being taken back to Canada, but declined to make inquiries that would confirm his suspicions, preferring to remain ignorant.

[27] In my view, there was an air of reality to wilful blindness. I turn next to the trial judge's charge to the jury on wilful blindness.

(ii) Jury charge

[28] The appellant's argument centres on the trial judge's use of the word "perhaps". In essence, he submits that by using the word "perhaps" as she did in her charge, the trial judge may have undermined the burden of proof and invited the jury to speculate about this crucial issue. I disagree. [page167]

[29] The actual phrase she uses is "perhaps when", which she repeats several times. It is obvious to me, when one considers the whole of her instructions, that she does so to relate the various times at which to consider the issue of wilful blindness, and not in regard to the burden of proof.

[30] The only questions from the jury were: "What is the basis of wilful blindness? Is it based on a reasonable person or is it based on Mr. Morales"? The trial judge, with the agreement of all counsel, instructed the jury: "The basis of wilful blindness for you to consider in this trial is Mr. Morales' state of mind."

[31] In the end, the jury obviously disbelieved the appellant's evidence that he had nothing to gain from importation of the cocaine. In the context of the jury's question and the trial judge's answer, the trial judge correctly conveyed the essential subjective nature of wilful blindness to the jury. The trial judge's charge on wilful blindness was complete and accurate.

[32] I would therefore also reject this ground of appeal.

Disposition

[33] In the result, I would dismiss the appeal.

Appeal dismissed.

Notes

Note 1: At paras. 26-27 citing The Report of the Commission on Proceedings Involving Guy Paul Morin, vol. 2 (1998), at pp. 1142-50, and Palmer"Guilt and the Consciousness of Guilt: The Use of Lies, Flight and other 'Guilty Behaviour' in the Investigation and Prosecution of Crime" (1997) 2 Mel. U. Law Rev. 95.