Court of Appeal for Ontario

Date: July 7, 2017 Docket: C60741

Judges: Weiler, Hourigan and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Tomika DaCosta Appellant

Counsel:

• Michael Dineen, for the appellant
• Kathleen Healey, for the respondent

Heard: July 6, 2017

On appeal from the conviction entered on April 8, 2015 by Justice S. Casey Hill of the Superior Court of Justice, sitting without a jury, with reasons reported at 2015 ONSC 1478.

Reasons for Decision

A. Introduction

[1] The appellant was charged with smuggling 830 grams of cocaine dissolved in two bottles of ginger wine she took with her on a flight from Jamaica to Toronto. She was convicted of importing cocaine and sentenced to three years' imprisonment.

[2] On her conviction appeal, she submits that the trial judge erred in his findings of fact and credibility assessments and gave unsupportable reasons for rejecting her evidence. The appellant requests a new trial.

[3] For the reasons that follow, we dismiss the appeal.

B. Background

[4] The appellant testified she decided to go to Jamaica in May 2010 to visit her father and her grandfather. At the time she was unemployed. She had about $700 for "spending money" but could not afford a plane ticket.

[5] The appellant had met Ralph Fletcher through her boyfriend Paul, who had known him for about a year. At the time of the offence, she knew his first name was "Ralph," but did not know his last name. The appellant talked to Fletcher about her "life problems" and he offered to buy her a plane ticket. A few days later, the appellant and Paul saw Fletcher again and Paul asked Fletcher if he was serious about the plane ticket. Fletcher said he would buy it.

[6] The appellant's evidence was that Fletcher purchased a round trip ticket from Toronto to Montego Bay for her online and then provided her with his email address and password so she could print the ticket. She did not have a passport when Fletcher purchased the ticket, so she paid $100 to get a rush passport.

[7] Fletcher testified for the defence. He has a prior criminal record of six convictions between 1990 and 2003, which did not include any drug-related convictions. Fletcher's evidence was that he did not purchase a plane ticket for the appellant, but rather loaned Paul $1,000 for plane tickets and expenses.

[8] The appellant's expectation was that her father would pick her up at the airport in Montego Bay. During the flight, however, passengers were advised that Jamaica was under a state of emergency and there were travel advisories into Kingston. As a result, her father was not able to get to Montego Bay. She took a cab to a hotel and stayed in Montego Bay for the duration of her trip. On May 25, 2010, the appellant received a call from someone named Peter who was a friend of Fletcher's. She spent the next couple of days with Peter.

[9] The appellant testified Peter drove her to the airport on May 28, 2010. She wanted to replace her sister's bottle of ginger wine – which she and Paul had consumed – and get a second bottle for herself. She went to a duty-free liquor store and bought two bottles of wine. The cashier suggested the liquor could be boxed for her if she had a third bottle, so she purchased a bottle of rum. The cashier packaged the three bottles in a box and the appellant paid for her purchase. She testified her bags and the box were always in her possession except for a short time when she left them outside a washroom stall. She could see the bottoms of the bottles under the stall and she did not see anyone interfering with them.

[10] On May 28, 2010, the appellant arrived at Pearson International Airport in Toronto. In the secondary customs area, CBSA Officer Dixon stopped the appellant and interviewed her. She was carrying a duty-free liquor box clearly marked from Jamaica, and Officer Dixon questioned the appellant about the duty-free box.

[11] On opening the box, he found three 750 millilitre bottles: two bottles of Stone's Ginger Wine and one bottle of rum. In response to his questions, the appellant said she purchased the alcohol from the duty-free shop in Jamaica on the day she left that country. She handed him a receipt from her purse. She told the officer she was unsure when she purchased the alcohol, but it was "around 12:00 or 12:30 p.m." The officer noted that the transaction time printed on the receipt was 1:25 p.m.

[12] Officer Dixon testified to having discovered cocaine coming from Jamaica ten days earlier dissolved in Stone's Ginger Wine. In this case, an initial test identified cocaine on the bottles of wine. Officer Dixon arrested the appellant for attempting to smuggle suspected narcotics into Canada.

[13] The contents of the two bottles of ginger wine were later tested and were found to each contain 415 grams of dissolved cocaine, resulting in a total value between $30,000 and $91,300.

[14] The Crown's theory was that the appellant was a knowing participant in the cocaine importation scheme, a plan perhaps facilitated by Peter, which also involved Fletcher and his associates in Montego Bay. The appellant's motivation was a free trip to Jamaica and very likely courier compensation.

[15] The appellant testified she had no knowledge there was cocaine in the wine bottles and was unaware that cocaine came in liquid form. The defence theory was the accused was an innocent dupe in a sophisticated drug operation involving Fletcher and Peter. There was no financial motive to be involved in drug importation because the appellant had never experienced difficulty in finding employment.

C. Analysis

[16] The appellant submits the trial judge erred by relying on a finding that the appellant told Officer Dixon that "Reg" bought her plane ticket, instead of "Ralph," as she testified. The officer acknowledged that his notes were not a verbatim account of what the appellant had said because they were recorded hours after the conversation in question. She argues that the trial judge failed to even advert to the possibility that the officer misheard the appellant.

[17] We disagree that the trial judge erred in making this finding. He carefully and fairly reviewed the evidence at trial. It was open to him to find that the appellant lied about who bought her ticket.

[18] The appellant further submits the trial judge discounted her evidence for a series of unfair reasons: (i) by finding the appellant was unlikely to travel given her financial situation; (ii) by relying on a spurious contradiction between the appellant's testimony and her mother's testimony regarding the explanation for the appellant flying into Montego Bay rather than Kingston; and (iii) by placing excessive weight on the appellant's incomplete memory.

[19] In our view, there was nothing unfair about these findings. They were part of the trial judge's very thorough credibility review. Particular deference must be given to a trial judge's credibility findings. Absent palpable and overriding error, an appellate court should not intervene in a trial judge's credibility analysis: R. v. Chhina, 2016 ONCA 663, 340 C.C.C. (3d) 557, at para. 21. The trial judge was in the best position to assess the appellant's demeanour and credibility throughout her testimony. He gave thorough reasons for his finding that the appellant was not credible and was aware of the cocaine.

[20] Finally, the appellant submits that there was no evidence to support the trial judge's finding that the cocaine was "not likely to be placed under the exclusive control of an unknowledgeable courier."

[21] We would not give effect to this argument. It was open to the trial judge to draw the inference that the manner of the cocaine smuggling that occurred in this case was not consistent with the use of a blind courier. In particular, the total value of the dissolved cocaine found in the appellant's custody was significant enough to contribute to a common sense inference that a third party would not entrust it to her as a blind courier for the purpose of importation: see R. v. Ukwuaba, 2015 ONSC 2953, at para. 101; and R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 527, leave to appeal refused, [2015] S.C.C.A. No. 478.

[22] A trier of fact is entitled to draw factual inferences based on his or her assessment of the totality of the evidence. The trial judge concluded, on the totality of the evidence, the only reasonable inference was that the appellant had knowingly imported cocaine. Circumstantial evidence need not totally exclude alternative conceivable inferences, and a verdict is not unreasonable simply because the alternatives do not raise a reasonable doubt in the mind of the trier of fact: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56.

D. Disposition

[23] The appeal is dismissed.

"K.M. Weiler J.A."

"C.W. Hourigan J.A."

"G. Pardu J.A."