Court of Appeal for Ontario
Date: July 13, 2017 Docket: C62729 Judges: Weiler, Hourigan and Pardu JJ.A.
Between
Her Majesty the Queen Respondent
and
Omar Black Appellant
Counsel:
- Maija Martin, for the appellant
- Sarah Egan, for the respondent
Heard: July 4, 2017
On appeal from the conviction imposed on June 7, 2016 by Justice Irving W. André of the Superior Court of Justice, sitting without a jury and with reasons reported at 2016 ONSC 3754.
Hourigan J.A.:
A. Introduction
[1] The appellant was convicted of importing 15 kilograms of cocaine. On appeal, he submits that the trial judge made two errors. First, the trial judge failed to properly apply the third part of the W.(D.) analysis: see R. v. W.(D.), [1991] 1 S.C.R. 742. Second, the trial judge provided insufficient reasons in support of the conviction. In particular, he did not adequately explain why he was convinced beyond a reasonable doubt that the appellant had knowledge of the cocaine.
[2] For the reasons that follow, I would dismiss the appeal.
B. Background Facts
[3] The appellant travelled to Antigua in November 2012 to attend a wedding with his girlfriend. He returned to Toronto on November 21, 2012 after extending his stay in Antigua at his girlfriend's request.
[4] Upon his arrival at Pearson Airport, a primary inspection officer asked him a few questions. He hesitated before answering and gave two different answers when asked about his friend's name. He had a garment bag and two other pieces of hand luggage. The officer referred the appellant to secondary inspection. He was then cleared to exit the airport.
[5] A Canada Border Services Officer attended the airline on which the appellant arrived to observe the offloading of the luggage from the aircraft. The purpose of doing so was because of internal conspiracies in which workers at Pearson Airport had been implicated in drug importation.
[6] The officer observed nothing unusual. He then followed the bags into the airport and saw them being offloaded onto a carousel and he waited to ensure all the bags were picked up. The officer observed a red suitcase was unclaimed from the carousel. When the officer opened the bag he observed a thick layer of white foam cushioning. An x-ray of the bag revealed several brick-like objects. On further investigation, it was confirmed the bag contained 15 one-kilogram bricks of cocaine.
[7] The bag had two luggage tags on it. One was a handwritten tag with the appellant's name and address on it. The other was an airline tag that included a print out of the appellant's name. The bag contained a white sock, a pair of Nike shoes and tank tops.
[8] The RCMP obtained a DNA sample from the appellant and sent the sock for forensic analysis. The sock revealed two DNA tracings. One was the appellant's and the other was from an unknown source. It could not be determined whether the DNA was from a primary source or a secondary transfer. A handwriting expert concluded the handwriting on one of the identification tags was probably the same as that on the appellant's customs declaration card.
[9] At trial, the appellant testified and denied any knowledge of the drugs. He denied checking the luggage on his flight from Antigua. He testified that he travelled with the suitcase to Antigua in January 2012 along with gifts and clothing for his girlfriend who had a clothing business. According to the appellant, he gave her the suitcase at that time with the handwritten tag bearing his name attached to it. He testified that when he travelled to Antigua in November 2012 to attend a friend's wedding with his girlfriend, he did not have any checked luggage. On that trip he ended their relationship. He testified that he never saw the red suitcase he had given her in January 2012. In addition, he said that the shoes found in the suitcase were not his size.
C. Decision Below
[10] The trial judge identified four possible scenarios that could explain how the cocaine-filled suitcase came to be found at the airport:
i. it was placed on the flight by the appellant;
ii. it was placed on the flight by a person or persons unbeknownst to the appellant;
iii. it was brought into Canada by the appellant but he abandoned his intention to retrieve it from the carousel; or
iv. it was brought into Canada by the appellant for someone who intended to retrieve it from the aircraft.
[11] The trial judge found the appellant's testimony denying knowledge of the suitcase unworthy of belief and incapable of raising a reasonable doubt. He queried why, if the appellant gave his girlfriend the suitcase for use in her clothing business, she would have kept the identification tag with his name and address attached to the suitcase from January to November 2012.
[12] The trial judge also addressed the appellant's testimony that his girlfriend may have intended to get back at him for breaking up their relationship. He concluded it defied common sense or reason that his girlfriend would have been involved in sending 15 kilograms of cocaine on the plane he was travelling on to an unknown person.
[13] The trial judge acknowledged the defence submission that the presence of an unknown person's DNA on the sock and the fact that the Nike shoes did not fit the appellant point to the involvement of an unknown person in the importation scheme. However, he concluded that those facts do not eliminate the involvement of the appellant. The trial judge found that the nature of the evidence did not lend itself to a conclusion that the appellant was an innocent victim.
[14] The trial judge ultimately held that the Crown had proved the appellant's guilt beyond a reasonable doubt based on the following evidence:
i. the suitcase belonged to the appellant;
ii. the appellant's name and address were on two identification tags on the suitcase;
iii. the suitcase travelled from Antigua to Canada on the same flight as the appellant; and
iv. the appellant's DNA was found on a clothing item in the suitcase.
D. Analysis
(1) Third Step of the W.(D.) Analysis
[15] The appellant submits the trial judge did not undertake the inquiry mandated under the third step in the W.(D.) analysis, being a consideration of whether the evidence he accepted satisfied him beyond a reasonable doubt of the appellant's guilt.
[16] The appellant further submits the trial judge misstated and misapplied the third branch of the W.(D.) test in the following passage from para. 18 of his reasons:
All [Mr. Black] is required to do is raise a reasonable doubt in the Crown's case. This can be done if I believe his evidence or alternatively, find that it is capable of raising a reasonable doubt in the Crown's case.
[17] The appellant correctly asserts that the burden is not on him to raise a reasonable doubt. It is on the Crown to prove beyond a reasonable doubt that he imported cocaine.
[18] The appellant goes on to argue that through the misapplication of W.(D.), the trial judge effectively turned the appellant's case into a credibility contest. The trial judge's reasons show that his decision was based on which witnesses he believed, not whether the Crown had proved its case beyond a reasonable doubt.
[19] I acknowledge that the appellant has a legitimate argument regarding the trial judge's analysis of the burden of proof. The trial judge's reasons did not track precisely the language in W.(D.), and the statement quoted above is troubling. However, after careful review, I would not give effect to this ground of appeal.
[20] With respect to the trial judge's comment where he appears to reverse the onus of proof, it is important to consider that statement in context. The full quote from para. 18 is as follows:
The Crown clearly bears the burden of proving Mr. Black's guilt beyond a reasonable doubt. Mr. Black is not required to prove anything. Specifically, he is not required to prove the existence of "internal conspiracies" at the Antigua airport or that unknown workers at that airport were involved in sending the suitcase filed with contraband to Toronto. All he is required to do is raise a reasonable doubt in the Crown's case. This can be done if I believe his evidence, or alternatively, find that it is capable of raising a reasonable doubt in the Crown's case.
[21] The language used by the trial judge is not a model of clarity. But read in context, I am satisfied that he understood the burden of proof and that he properly applied it. In my view, what he was saying was that there is no burden on the appellant to prove anything, including an alternative explanation as to how the cocaine ended up in his suitcase. As long as the evidence was capable of raising a reasonable doubt in the Crown's case, that was a sufficient basis for an acquittal.
[22] The appellant also complains that the trial judge erred in rejecting the appellant's theory that his girlfriend got back at him for breaking up with her by sending the suitcase on the plane, when he stated, at para. 23 of reasons, that there was "no evidence to lend credence to this theory." The appellant submits that the trial judge erred because in a case based solely or largely on circumstantial evidence an inference of guilt must be the only reasonable inference that the evidence permits. Inferences consistent with innocence do not have to arise from proven facts: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 35.
[23] The appellant is correct in his submission on the law. However, I do not read the trial judge's comment as requiring an evidentiary basis for an inference consistent with guilt. Rather, read in context, the trial judge was saying that, in addition to there being no reliable evidence to support the appellant's theory, this theory "defies common sense or reason" (see para. 23 of his reasons). 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: Villaroman, at para. 56.
[24] I am also not satisfied that the trial judge turned this case into a credibility contest. This was not a case of competing narratives, with the judge picking one version over that of the accused. In this case, the Crown adduced strong physical evidence to prove the appellant's guilt, including the fact that the cocaine was in a suitcase that he owned and that contained an item of clothing with his DNA on it.
(2) Sufficiency of Reasons
[25] The appellant submits the trial judge failed to provide sufficient reasons on the issue of the appellant's knowledge of the cocaine in the suitcase. He asserts that the Crown's case was entirely circumstantial. There was no direct evidence the appellant checked any luggage in Antigua or had knowledge of its contents. In order to convict, the trial judge would have to be satisfied beyond a reasonable doubt the only conclusion available on the whole of the evidence was that the appellant knew about or was wilfully blind to the cocaine in the suitcase. In these circumstances, the appellant submits, the trial judge was obliged to consider the possibility that the appellant did not knowingly import cocaine into Canada.
[26] The appellant argues that although the trial judge explained in detail why he rejected the appellant's evidence, he did not explain whether the Crown had proven the mens rea element of importing cocaine beyond a reasonable doubt. He submits that the trial judge's reasons are fatally silent on the mental element required to uphold a conviction for importing cocaine and render the reasons for judgment deficient. According to the appellant, the reasons do not explain the decision to the parties, provide public accountability or allow for meaningful appellate review. I would not give effect to this submission.
[27] Watt J. in R. v. Wolynec, 2015 ONCA 656, 339 O.A.C. 237, at paras. 57-60, provided a comprehensive review of the considerations that apply in an analysis of an inadequate reasons ground of appeal:
The reasons of a trial judge fulfil their purpose if the reasons, read in context, show why the trial judge decided as she did. To show why, the reasons need not show how the judge reached her conclusion in a "watch me think" fashion: R.E.M., at para. 17. The reasons must display a logical connection between the "what" – the verdict – and the "why" – the basis for the verdict: R.E.M., at para. 17. But explaining the "why" and its logical link to the "what" imposes no obligation on a trial judge to set out every finding or conclusion in the process of reaching a decision: R.E.M., at para. 18.
A trial judge need not explicate the well settled, repeat the uncontroversial or retill common legal ground between the parties. So too with evidence. A trial judge is not obliged to detail his or her finding on each morsel of evidence or controverted fact, provided the findings linking the evidence to the verdict can be logically discerned: R.E.M., at paras. 19-20.
The core question to be answered in determining whether a trial judge's reasons are sufficient is whether those reasons, read in context, show why the judge decided as she did on the offences charged: Vuradin, at para. 15.
To succeed on an appeal based on inadequate reasons, an appellant must show not only a deficiency in the reasons, but also that the deficiency has occasioned prejudice to the exercise of his or her legal rights to an appeal in a criminal case: Sheppard, at para. 33; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 31. An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25; Vuradin, at para. 10; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25. A failure to explain rejection of a submission does not mean the reasons are deficient, provided the reasons demonstrate the acceptance of contrary evidence: Vuradin, at para. 13.
[28] Again, I acknowledge that the trial judge's reasons could have been clearer. For example, he could have explicitly stated that he was satisfied beyond a reasonable doubt that the appellant had knowledge of the cocaine after making the findings of fact that supported his finding at the end of his reasons. But in considering the sufficiency of reasons an appellate court must read the "reasons as a whole, in the context of the evidence, the arguments and the trial, together with an appreciation of the purposes or functions for which reasons are delivered": Wolynec at para. 56.
[29] Context is critical in this case. This was a one-issue trial. The Crown's case in chief and the set of facts that the trial judge explicitly accepted established a prima facie case that the appellant had committed the actus reus of the offence, with the compelling resulting inference that he did so knowingly. The appellant testified and denied knowledge. His evidence was not believed, and the trial judge gave detailed reasons for rejecting it.
[30] That the trial judge was left without a reasonable doubt is apparent from a review of his reasons in light of the record. This was a situation where the trial judge rejected the appellant's evidence that the appellant was a blind courier, and then, considering the evidence he did accept, implicitly drew the inference that the appellant knew about the presence of cocaine in the suitcase. Read in context, the reasons sufficiently explain the basis upon which the trial judge found the knowledge component had been proven beyond a reasonable doubt.
E. Disposition
[31] I would dismiss the appeal.
"C.W. Hourigan J.A."
"I agree. K.M. Weiler J.A."
Pardu J.A. (dissenting):
[32] I do not disagree with any of the legal principles explained by the majority but disagree with their application to this case.
[33] My concern is with the combination of the trial judge's misstatement of the onus of proof under the third step of W.(D.) – saying that "[a]ll [Mr. Black] is required to do is raise a reasonable doubt in the Crown's case" – together with his failure to make a finding of fact about the only factual matter in issue – whether the appellant knew about the cocaine in his suitcase.
[34] The majority acknowledges that the trial judge's approach to these issues is problematic, but they do not see the problems as serious enough to justify appellate intervention. However, I am not convinced that, absent the combined effect of these two errors, the trial judge's decision to convict the appellant would have necessarily been the same as it would be had he held the Crown to its obligation to prove beyond a reasonable doubt that the appellant knew about the cocaine.
[35] The need to relate the Crown's evidence and its onus to factual findings on the only issue in a criminal prosecution with sufficient clarity is, of course, fundamental to a trial judge's decision whether to convict. A trial judge's inability to articulate this may signal a gap in the logical reasoning necessary to arrive at a guilty verdict. This militates in favour of this court ordering a new trial.
[36] Here, this court is not in a position to discern whether the trial judge found that the Crown proved beyond a reasonable doubt that the appellant knew his luggage was used to transport drugs or, indeed, whether instead he found that the appellant was wilfully blind to that use. This is not a case like most other importing cases, where the accused has his or her luggage in hand. The theory of the Crown advanced at trial was that the plan to import the cocaine was for a complicit airport worker to covertly retrieve the luggage from the plane before the luggage was sent to the baggage carousel. This plan was thwarted when a Canada Border Services Officer oversaw the unloading of the baggage from the plane. The appellant did not pick up the luggage from the carousel.
[37] In addition to saying that "[a]ll [Mr. Black] is required to do is raise a reasonable doubt in the Crown's case," the trial judge stated at para. 26 of his reasons that the Crown had proven the appellant's guilt beyond a reasonable doubt because:
i. the suitcase belonged to the appellant;
ii. the appellant's name and address were on two identification tags on the suitcase;
iii. the suitcase travelled from Antigua to Canada on the same flight as the appellant; and
iv. the appellant's DNA was found on a clothing item in the suitcase.
[38] I agree with the majority that these reasons do not resemble the model of clarity on the correct articulation of the Crown's onus in an importing case such as this. Its deficiencies can be brought to light by contrasting them with the reasons of Mossip J. in R. v. Desilva, [2004] O.J. No. 5971 (S.C.), at paras. 10-12:
Directing myself on the law, Ms. Desilva testified at this trial and I remind myself with respect to the principles set out in the Supreme Court of Canada case of R. v. W.(D.), [1991] 1 S.C.R. 742, as follows: if I believe Ms. Desilva's evidence that she did not know the duffel bag contained cocaine, I must find her not guilty of the offence of importing. Secondly, even if I do not believe Ms. Desilva's evidence, if it leaves me with a reasonable doubt as to whether she knew the duffel bag contained cocaine, I must find her not guilty. Thirdly, even if Ms. Desilva's evidence does not leave me with a reasonable doubt that she knew the cocaine was in the duffel bag, I may only find her guilty of importing if, on the rest of the evidence I do accept, it proves beyond a reasonable doubt that Ms. Desilva knew the cocaine was in the duffel bag. Finally, I remind myself of the standard of reasonable doubt as set out in R. v. Lifchus, [1997] 3 S.C.R. 320, and more recently in Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.
Having regard to all of those legal principles and considering all of the evidence, I find Ms. Desilva not guilty of the offence of importing for the following reasons: I cannot say that I entirely believe or accept Ms. Desilva's evidence with respect to the circumstances of her having the duffel bag in her possession. In fact I find it likely or probable that Ms. Desilva did know the cocaine was in the duffel bag …
… Ms. Desilva's evidence in the end leaves me with a reasonable doubt as I am not sure as to whether Ms. Desilva knew the cocaine was in the false bottom of the black duffel bag. Ms. Desilva is entitled to the benefit of that doubt and therefore must be found not guilty of the offence of importing a narcotic into Canada.
[39] Unlike my colleagues, I am not prepared to infer that the trial judge engaged in the necessary reasoning from the conclusory statements contained in para. 26 of his reasons. From those explicit statements, the majority concludes, based on the context of the evidence and the arguments made at trial, that the trial judge implicitly held that the appellant in this case knowingly imported cocaine.
[40] Although I agree with the principle of law that the sufficiency of the trial judge's reasons must be assessed within this context, "[t]his exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge. Where the trial judge's reasoning is not apparent from the reasons or the record, as in the instant case, the appeal court ought not to substitute its own analysis for that of the trial judge": R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. I am not convinced that in this case the trial judge's reasoning was apparent enough in the context of the record for it to be discernable to this court without this court having to reassess the case itself and substitute its own analysis. There may be an implicit route available from the trial judge's explicit factual findings at para. 26 to a finding of the appellant's guilt, but "it is not appropriate for this court to attempt to discern that route and explain it": R. v. Capano, 2014 ONCA 599, 313 C.C.C. (3d) 135, at para. 74.
[41] I would allow the appeal and order a new trial.
Released: July 13, 2017
"G. Pardu J.A."
