COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2014 ONCA 71

DATE: 20140127

DOCKET: C56360

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samantha Lewis

Appellant

Ingrid Grant, for the appellant

Xenia Proestos, for the respondent

Heard: January 9, 2014

On appeal from the conviction entered on April 27, 2012 by Justice Bonnie J. Wein of the Superior Court of Justice, sitting with a jury.

Benotto J.A.:

OVERVIEW

[1] The appellant was found guilty by a jury of importing cocaine into Canada. The main issue at trial was the appellant’s knowledge that she was importing a narcotic. She appeals the conviction on the basis that the trial judge erred in admitting evidence regarding the reasons that the border services officer referred her to secondary inspection, and that the trial judge erred in instructing the jury to consider this evidence on the issue of the appellant’s knowledge.

[2] At the end of oral submissions we dismissed the appeal with reasons to follow. These are those reasons.

FACTS

[3] The appellant resided in England and travelled with her young daughter to Canada where she visited relatives and then travelled on to Costa Rica. On her return, she arrived at Toronto Pearson Airport. Officer Tanya Jakovcic, of the Canada Border Services Agency dealt with the appellant at primary customs inspection. She referred her to secondary inspection for a drug examination and also for immigration issues. During the secondary inspection, five kilograms of cocaine were found in the lining of two of her suitcases.

[4] Officer Jakovcic testified about her interaction with the appellant, including her examination of the appellant’s passport, customs declaration card and itinerary, the appellant’s responses to her questions, and her demeanour. In particular, the officer testified that :

• The appellant planned to stay in Toronto for two days before returning home even though there are daily flights to England;

• The appellant’s explanation that she was remaining in Toronto to visit relatives was odd since she had been in Toronto before travelling to Costa Rica;

• Costa Rica is a drug source country;[^1]

• The appellant had been away from England for a lengthy period of time with her daughter;

• The appellant’s style of answering questions was inconsistent: she replied hastily at times but hesitated at other times; and

• When she was asked where she stayed in Costa Rica, the appellant pointed to a hotel wristband in a manner that the officer perceived to be exaggerated.

[5] Officer Jakovcic summarized her reasons for referring the appellant to secondary inspection:

I made a referral to customs secondary for a drug examination. The reason for that referral was due to a [multiplicity] of indicators which include the travelling to and from a drug source country, short duration of stay in transit.… So the full demeanour as a whole along with the other indicators made me make a drug referral.

[6] The appellant testified at trial. She denied any knowledge of the cocaine, provided an explanation for her travels and theorized about how the drugs may have been surreptitiously planted in her luggage without her knowledge.

[7] After the appellant was convicted, this court released its decision in R. v. Lewis, 2012 ONCA 388, 284 C.C.C. (3d) 423. (The accused in this reported case has no relationship to the appellant here. To avoid confusion, the reported case will be referred to as “Loraine Lewis”.) The appellant relies almost exclusively on this case in her submission that the impugned evidence was inadmissible and that a new trial must be ordered.

ISSUES

[8] There are two issues on appeal:

1. Did the trial judge err by admitting Officer Jakovcic’s testimony about her reasons for referring the appellant for secondary inspection?

2. Did the trial judge err by referring to the impugned evidence in her charge to the jury?

ANALYSIS

(1) The Admissibility of Officer Jakovcic’s Testimony

[9] The appellant argues that the trial judge erred by allowing Officer Jakovcic to say why she referred the appellant for secondary inspection. The appellant submits that Loraine Lewis stands for the proposition that the primary officer’s reasons for a secondary inspection referral are irrelevant and thus inadmissible. She further submits that the trial judge erred in allowing the officer to give evidence on indicators of drug importing. This, it is argued, is the officer’s opinion about the profile of a typical drug courier and is inadmissible unless presented by a qualified expert.

[10] In my view, Loraine Lewis does not stand for the broad proposition advanced by the appellant. In Loraine Lewis, the issue was the admission of evidence given by the primary officer “about the significance of cash payments for tickets and short notice ticketing.” [Emphasis added].

[11] In that case, despite the objection of defence counsel that such evidence was inadmissible hearsay and opinion evidence, the officer was allowed to testify about what she was told during her training and to give her understanding of the significance of certain answers, including why these answers were indicators of a person involved in the drug trade. For example, she testified:

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… it’s usually drug money.

[12] As the court observed at para. 23:

The gist of the 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.

[13] The Crown in Loraine Lewis sought to support the admissibility of the evidence as an exception to the hearsay rule and argued that it was admissible to go to the officer’s state of mind or as part of the narrative. It was in the context of the Crown’s hearsay argument, that the court held that the evidence was inadmissible because the officer’s state of mind was not relevant. The appellant here seeks to extend that statement to say that the reasons for secondary referral are never relevant and thus never admissible.

[14] In Loraine Lewis the court was concerned about the testimony surrounding the significance of the cash payments and short notice ticketing, specifically, Officer Bellissimo’s explanation of how these factors related to the profile of a typical drug importer. By relating her reasons for the referral to secondary inspection to the characteristics of a typical drug importer based on what she was told in training, Officer Bellissimo went beyond merely recounting her observations of Loraine Lewis. The court found that the “practical reality” was that this evidence was opinion evidence.

[15] The court in Loraine Lewis specifically recognized that primary customs inspectors can relate their observations including what the court referred to as “non-expert opinion evidence.” The court explained that non-expert opinion evidence is a form of opinion evidence where the witness relates matters “in respect of which a person of ordinary intelligence may be permitted to give evidence based on his or her personal knowledge.” In other words, a non-expert witness can, in appropriate cases, relate an observation by expressing an opinion. For example, a customs officer can testify that answers “appeared rehearsed.” Although such a statement is not, strictly speaking, relating a fact, it is the perception of the officer and is admissible without the need to qualify the officer as an expert.

[16] None of the court’s concerns in Loraine Lewis apply in the present case. The testimony of Officer Jakovcic was limited to her personal observations of the appellant. No objection was made to this testimony at trial. The officer gave no opinion as to what the jury should draw from these observations. There was no hearsay issue nor were there concerns that any of the opinions advanced by Officer Jakovcic went beyond her perceptions.

[17] The appellant raised specific concerns about Officer Jakovcic’s use of the word “indicator.” In the appellant’s submission, the jury would understand indicators to be consistent with certain earmarks of drug importation or with the profile of a drug courier and conclude that the appellant was in fact a drug courier. It was submitted that, by telling the jury that the appellant gave certain responses to indicator questions, the officer’s evidence lent credence to the Crown’s claim that the appellant was a knowing importer of drugs.

[18] I disagree. In this case the officer’s use of the term “indicator” was simply descriptive of her reason for the referral to secondary inspection. It did not, read in context, amount to evidence that the appellant fit a particular profile. There may be contexts where use of that term could invite the jury to draw an improper inference. Used as it was in this case, the term indicator did not infringe on the jury’s task nor did it suggest that the appellant must have had knowledge of the presence of drugs in her luggage.

[19] The evidence of the primary officer that was challenged on appeal was properly admitted at trial.

(2) The Charge to the Jury

[20] The appellant raised a subsidiary issue with respect to the judge’s charge to the jury. At first it was asserted that this issue only became relevant if the evidence was found to be inadmissible. It was then argued that, even if the evidence was admissible, the trial judge erred in her charge to the jury by referring to the evidence of the primary officer’s suspicions on the issue of the appellant’s knowledge. The jury instructions in issue are the following:

• “Consider the fact that suspicions were raised at primary because she was coming from a drug-source country and travelling alone with a small child.”

• “Consider that she only had a short two-day stopover in Canada…”

• “Consider the issue of the resort wristband.… [I]t seemed to be a factor for [the primary officer’s] consideration…”

• “Consider her demeanour and what Officer Jakovcic said was an inconsistent style of answering questions…”

• “Consider her itinerary.… She bought the ticket just a few days before she left…”

[21] The trial judge’s charge to the jury must be read as a whole. She fairly put forth the position of the defence, reviewed the appellant’s testimony and balanced references to the Crown’s case with the defence position. These excerpts, in light of the entire charge, could not possibly have led the jury to reason that the primary officer’s suspicions were evidence that the appellant had knowledge of the drugs.

DISPOSITION

[22] The appeal is dismissed.

“M.L. Benotto J.A.”

“I agree Paul Rouleau J.A.”

“I agree K. van Rensburg J.A.”

Released: January 27, 2014

[^1]: This evidence was given at trial by a qualified expert. It was an agreed fact on appeal.