COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2012 ONCA 388

DATE: 20120608

DOCKET: C51858

Laskin and Blair JJ.A. and Brown R.S.J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Loraine Lewis

Appellant

R. Craig Bottomley, for the appellant

Milica Potrebic, for the respondent

Heard: February 16, 2012.

On appeal from the conviction entered by Justice T.A. Bielby of the Superior Court of Justice, sitting with a jury, on October 5, 2009.

R.A. Blair J.A.:

Overview

[1] On June 16, 2007, the appellant arrived at Pearson International Airport in Toronto, carrying a suitcase containing two bottles of wine in which was dissolved a total of 862 grams of cocaine. The cocaine had an estimated street value of between $25,000 (if sold at the kilogram or pound level) and $68,000 (if sold at the gram level).

[2] The main issue at trial was whether the appellant had knowledge of the cocaine in her suitcase. She testified that she did not.

[3] After a trial before Justice T.A. Bielby of the Superior Court of Justice and a jury, the appellant was convicted. On appeal, she raises two arguments. First, she submits that the trial judge erred in instructing the jurors on the issue of knowledge by failing to make clear that the issue to be determined by them was whether the appellant knew she was carrying an illegal drug, as opposed to any other substance that was illegal to import (excessive alcohol, in this case). Secondly, she argues that the trial judge erred in admitting opinion evidence from a Border Services Inspector about the purchase of the appellant’s ticket and, further, in failing to instruct the jurors that they could not draw an adverse inference of guilt from how and when the ticket was purchased.

[4] We did not call on counsel for the Crown with respect to the first issue, but, for the reasons that follow, I would allow the appeal and order a new trial on the second ground.

Facts

[5] The appellant entered Canada on June 16, 2007, with a suitcase in which were found two bottles of wine, wrapped in newspaper and hand-taped at the neck. Each bottle contained cocaine dissolved in liquid. The cocaine weighed 862 grams in total.

[6] Sonia Bellissimo, a Border Services Inspector for the Canadian Border Services Agency, testified that on that day she was assigned to work as a “primary officer” at the first point of screening for passengers entering Canada. Her role was to conduct a brief interview with passengers, referring some for secondary inspection where necessary.

[7] The appellant was one of those passengers. Her customs declaration card indicated that she was travelling alone as a visitor to Canada from Jamaica, that she would be remaining in Canada for 14 days, and that she was bringing one bottle of wine and one bottle of rum with her. Inspector Bellissimo asked the appellant a few questions about her trip and became suspicious – she “knew something was up” – because she thought the appellant’s answers sounded rehearsed. As she was trained to do, the Inspector asked the appellant two “indicator questions:” (i) When did you book your ticket? and (ii) How did you pay for your ticket? The answers were: (i) “Monday” and (ii) “with cash.” Based on Inspector Bellissimo’s training and experience, these answers were sufficient to confirm her suspicions, and she referred the appellant for a secondary inspection. It was during the secondary inspection that the cocaine was discovered.

[8] Inspector Bellissimo’s testimony surrounding the “indicator questions” is what gives rise to the principal ground of appeal. She was not qualified as an expert witness. However, she was asked about what she had been taught in her training about “cash paid tickets” and “short notice” bookings and why the appellant’s responses to the two “indicator questions” raised a suspicion relating to drugs. Inspector Bellissimo’s answers are at the crux of this appeal. In summary, she said:

• Typically, people don’t tend to have $2,000 in cash to pay for a ticket

• Cash payments do not leave a paper trail to the distributors of the drugs

• Cash payments are usually drug money

• “They” (i.e. the couriers) are not usually the ones paying for the ticket

• Contrary to business and emergency trips, vacation tickets are generally purchased in advance because it’s cheaper and easier

• In the appellant’s case, short notice was even more suspicious because the appellant is a teacher, and teachers know their summer vacation time well in advance.

[9] The following passage from Inspector Bellissimo’s testimony is illustrative:

Q. And what were you taught in your training? You’ve already indicated – what were you taught in your training about cash payments?

A. Okay. In our training we were taught that if the answer to that question is “cash”, it is a major indicator for something suspicious. And actually they told us particularly drugs, because the reason that our trainer gave us was actually a few reasons. If I can reiterate, one, people ... tend not to pay for tickets with cash. Two, it’s usually drug money. Three, they’re usually not the ones paying for the ticket. So it usually comes as cash. Four, they don’t leave a paper trail ... back to the distributor of the drugs. [Emphasis added.]

[10] Defence counsel objected to this evidence as inadmissible hearsay and opinion evidence. She sought a limiting instruction, and it appears that both the trial judge and Crown counsel agreed that a limiting instruction would be appropriate. However, the extent of the trial judge’s instruction in this regard was the following:

Another type of evidence is hearsay evidence. Hearsay evidence references what a witness relates what someone else told him or her. Second-hand information if you like. Hearsay evidence is generally not admissible to establish the truth of what the witness was in fact told. Hearsay evidence is admissible however to establish the witness’ state of mind at the relevant time.

For example, Border Officer Bellissimo testified as to what she was told in training by other officers. This evidence cannot be used to establish what she was told was true, but to help understand what Officer Bellissimo did and said and why she did what she did and what she may have said or asked. It helps us to understand her state of mind on June 16^th, 2007, when she had the encounter with Ms. Lewis.

Analysis

Ground One

[11] I would not give effect to the first ground of appeal outlined above. As noted, we did not call on counsel for the Crown to respond on that issue.

[12] R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A), aff’d (1971), 1971 1411 (SCC), 4 C.C.C. (2d) 566 (S.C.C.), established that the mens rea for the offence of importing requires knowledge that the substance is a narcotic (now known as a “controlled substance”), although not necessarily knowledge of the exact type of narcotic. Thus, in R. v. Burgess, 1969 467 (ON CA), [1970] 3 C.C.C. 268 (Ont. C.A.), it mattered not that the accused believed the substance in his possession was hashish rather than opium, since possession of both was prohibited by statute.

[13] Here, the trial judge instructed the jury that “simply put, the law is that no person shall import into Canada any controlled substance. As a matter of law, cocaine is a controlled substance. Importation of cocaine into Canada is therefore, a criminal offence.” The fact that the trial judge used the terms “controlled substance”, “illegal substance” and “illegal drug” from time to time, when explaining the elements of the offence could only be understood to refer to cocaine in the context of the charge, read as a whole: see also R. v. Rashidi-Alavije, 2007 ONCA 712, 229 O.A.C. 365.

[14] The argument that the jury may somehow have been confused into thinking that the reference to an “illegal substance” might refer to an allegation that the appellant was illegally bringing an excess of alcohol into the country, and, therefore, that they could convict on that basis, is simply fanciful on this record, in my view. It would have been impossible for the jury to be confused as to the substance at issue, particularly in light of the trial judge’s clear instructions on the elements of knowledge under s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[15] There is no merit to this ground of appeal.

Ground Two

[16] There is merit in the appellant’s second ground of appeal, however.

[17] Inspector Bellissimo’s testimony about the significance of cash payments for tickets and short notice ticketing was not admissible.

[18] The Crown seeks to support the admissibility of the evidence as an exception to the hearsay rule in order to show the inspector’s state of mind and to explain the sequence of events, the questions asked and the responses given by the appellant at the time. The Crown also argues that the evidence was admissible as part of the narrative in order to explain the unfolding of events.

[19] I accept neither of these submissions.

[20] The appellant did not contest the legality of the search of her bags at the airport, nor did she attack the legality of her arrest. The only thing that was relevant about the Bellissimo interview with the appellant was that, as a result of what transpired, Inspector Bellissimo felt that a secondary inspection was called for and she referred the appellant to another inspector for that purpose. The cocaine was then discovered. Inspector Bellissimo’s state of mind was unimportant and never in issue. The evidence is simply irrelevant, and therefore inadmissible, in that context.

[21] For similar reasons, the evidence did not help to explain the evolution of relevant events and for that reason was neither necessary nor helpful as part of the narrative. It was irrelevant testimony highly prejudicial to the appellant. The only reason the Crown wished to have the evidence introduced as part of the “narrative” was to lend credence to its position that the appellant was running drugs across the border.

[22] Although the Crown disavows any intention of relying on the Bellissimo testimony as opinion evidence, and did not seek to qualify the Inspector as an expert, the practical reality is that the impugned testimony was opinion evidence. Moreover, it was opinion evidence clothed with the additional aura – and therefore credibility – of a border services official, who would be seen by the jury to be knowledgeable, experienced and trained in dealing with situations involving people seeking to bring drugs into the country: see R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819, at p. 840. I do not accept the contention that Inspector Bellissimo’s evidence on the issue of cash payments and the purchase of tickets on short notice was the type of evidence that members of the jury would know from their own life experience and common sense. It was a particularized type of information relating to international drug importing, falling within the knowledge of people working in that area and beyond the ken of ordinary jurors.

[23] While there may be situations were a properly qualified expert could give such evidence, no attempt was made to qualify Inspector Bellissimo to do so, and, as noted above, the evidence was highly prejudicial to the appellant. The only significant issue at play during the trial was whether the appellant knew that the “wine bottles” contained a controlled substance. The gist of Inspector Bellissimo’s testimony with respect to the cash payments and last-minute bookings for tickets was that the appellant used “drug money” (inferentially from her distributor) in order to buy her ticket for cash so that she wouldn’t leave a “paper trail” back to that distributor – in short, that the appellant was a courier. It is a small step from the acceptance of that evidence to the conclusion that the appellant knew about the cocaine in the bottles.

[24] The trial judge and Crown counsel appear to have recognized that a limiting instruction regarding the use to which the jury could put the evidence, once it was in, was called for. Respectfully, in my view, the instruction given by the trial judge was inadequate for the task (assuming for these purposes that the evidence was admissible, which, for the reasons outlined above, I conclude it was not).

[25] The trial judge gave a general instruction on hearsay evidence, pointing out that it is generally not admissible to establish the truth of what the witness was in fact told, but indicating that hearsay evidence is admissible to establish the witness’ state of mind at the relevant time. To repeat the passage cited earlier in these reasons, he then went on to say:

For example, Border Officer Bellissimo testified as to what she was told in training by other officers. This evidence cannot be used to establish what she was told was true, but to help understand what Officer Bellissimo did and said and why she did what she did and what she may have said or asked. It helps us to understand her state of mind on June 16^th, 2007, when she had the encounter with Ms. Lewis.

[26] This limiting instruction on the use of hearsay was necessary and helpful, but the admonition that the jurors could not take what Inspector Bellissimo’s trainers had told her for the truth of those statements did not go far enough, in my opinion. Here, there was a real risk that the jury would infer from the evidence that because the appellant had bought her ticket on short notice and with cash, as drug couriers frequently do, she was more likely to have been knowingly involved in the importing scheme and, therefore, more likely to have known that the wine bottles in her suitcase contained a controlled substance. A stronger direction was called for in order to avert that risk.

[27] The appellant also argues that the trial judge erred in admitting Inspector Bellissimo’s testimony that the answers of the appellant appeared to be “rehearsed” and that this helped trigger the Inspector’s suspicions. I would not give effect to this argument. Inspector Bellissimo’s testimony in this regard was non-expert opinion evidence. Non-experts have been permitted to testify on a number of matters in respect of which a person of ordinary intelligence may be permitted to give evidence based on his or her personal knowledge. A non-expert witness may testify in the form of an opinion if by doing so he or she is able more accurately to express the facts he or she perceived: see R. v. Graat, supra. Accordingly, just as police officers are entitled to relate their observations that a driver appeared to them to be inebriated, a customs officer in Inspector Bellissimo’s position should be entitled to relay her observations about the manner in which a person responds to questions, based on the officer’s experience, it seems to me.

[28] Finally, the Crown argues that even if we conclude that the trial judge erred in admitting Inspector Bellissimo’s evidence on these issues, or in his instructions to the jury with respect to that evidence, the Court should apply the proviso contained in s. 686(1)(b)(iii) of the Criminal Code and dismiss the appeal on the basis that there has been no substantial wrong or miscarriage of justice. I agree that the prosecution presented a very strong case against the appellant, leaving Inspector Bellissimo’s impugned evidence aside. Given what I view to be the considerably prejudicial nature of that evidence – as outlined above – however, I am not persuaded that the jurors would inevitably have come to a conclusion of guilt absent that evidence.

[29] I would not apply the proviso in the circumstances of this case.

Disposition

[30] For the foregoing reasons, then, I would allow the appeal and order a new trial.

“R.A. Blair J.A.”

“I agree John Laskin J.A.”

“I agree Brown R.S.J. (ad hoc)

Released: June 8, 2012