Court of Appeal for Ontario

Date: 2018-11-26 Docket: C62134 Judges: Sharpe, Hourigan and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Jeffrey Miller Appellant

Counsel

Philip Campbell, for the appellant

Tanit Gilliam, for the respondent

Hearing and Appeal

Heard: November 19, 2018

On appeal from the conviction entered on March 10, 2016 by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Overview

The appellant appeals his conviction following a jury trial for importing cocaine and possession of cocaine for the purpose of trafficking.

[2] Facts

The appellant, who operates a motorcycle business, returned to Canada from the United States driving a truck carrying several motorcycles. Upon inspection at the border crossing, Canadian Border Service Agency (CBSA) agents found 100 kg of cocaine secreted in the bed of the appellant's truck. The central issue at trial was whether the appellant had knowledge of the cocaine secreted in his truck.

[3] Grounds of Appeal

The appellant raises three grounds of appeal.

1. Admissibility of the Appellant's Statement

[4] Charter Right to Counsel

The appellant made an incriminating statement to the CBSA agents, effectively admitting knowledge that he was importing cocaine. His principal ground of appeal is that the trial judge erred in finding that the appellant's s. 10(b) right to counsel under the Canadian Charter of Rights and Freedoms was not violated.

[5] Evidence on the Voir Dire

No video or audio recording was made of the conversation between the appellant and the agents. Two CBSA agents testified on the voir dire as did the appellant. While there was some variation in the evidence of the two agents, their versions of events were essentially the same. The trial judge accepted their evidence and rejected the evidence of the appellant.

[6] Initial Detention and Caution

After a sniffer dog detected the presence of drugs in the truck, the agents detained the appellant and his passenger on suspicion of smuggling. The agents handcuffed the appellant in the parking lot. At that point, the appellant was informally cautioned and advised of his right to counsel. He stated that he did not wish to speak to counsel.

[7] Formal Caution in Search Room

Within several minutes of detaining him, the CBSA agents formally cautioned the appellant and advised him of his right to counsel a second time. A CBSA agent brought the appellant into a search room in the CBSA building following his detention. The agent removed the appellant's handcuffs and read the appellant his rights from a prepared card. When asked if he wished to speak to a lawyer the appellant again answered no.

[8] Discovery of Cocaine and Third Caution

The CBSA agents then conducted a thorough search of the truck and located a package of suspected cocaine that was later identified as comprising 105 bricks of cocaine weighing a total of 100 kg. One of the agents then advised the appellant that he was under arrest for smuggling. For the third time, he was cautioned and advised of his right to counsel. The CBSA agent began to read him the standard caution and advice regarding his right to counsel. The appellant started to speak but the agent stopped him, told him to wait until he was properly advised of his rights and recommenced reading the rights and caution. When advised of his right to counsel, the appellant responded that at this point he would like to contact counsel. The CBSA agent then completed his reading of the caution. Immediately after the agent stopped reading the caution and without being prompted or questioned by the agent, the appellant began to speak.

[9] Appellant's Alleged Statement

According to the CBSA agents, the appellant stated that there were "100 keys of coke" in the bed of the truck. He asked the agents to retrieve a cell phone from the truck so that he could send a coded message. He also asked the agents to retrieve his wallet so that he could get his lawyer's phone number. The appellant indicated that there could be a safety issue with his family and that he wished to cooperate with the investigation and provide the authorities with information. He also asked that the truck be moved so that it could not be seen. He offered to complete the delivery so the officers could identify who received the drugs. He told the agents that he had not been transporting drugs for a period of time but had brought this shipment because of a business downturn.

[10] Appellant's Testimony

On the voir dire and in his trial evidence, the appellant denied that he stated there were "100 keys of coke" in the truck. He testified that he told the CBSA agents that there was "a 100 'K' out there for me to be worried about", referring not to 100 kg of cocaine but rather to his $100,000 investment in the truck and motorcycles.

[11] Trial Judge's Findings

The trial judge found that the appellant "was repeatedly given his rights to counsel and appropriately cautioned as his jeopardy changed". She further found that the appellant had interrupted the CBSA officers as they read him his rights, that "he was not diligent in pursuing speaking with counsel" and that he was more concerned with his own safety, the movement of the truck, and the retrieval of a cell phone than with speaking with counsel.

[12] Section 24(2) Analysis

Having ruled there was no violation of the appellant's right to counsel, the trial judge did not consider whether the evidence should be excluded pursuant to s. 24(2).

[13] Characterization of Lack of Diligence

In our view, it was inapt of the trial judge to characterize this as a situation where the appellant was not diligent in pursuing his s. 10(b) right to speak with counsel. That situation arises where a detainee is advised of his right to counsel, is given an opportunity and the means to speak with counsel and fails to pursue that right in a timely manner: see R. v. Ross, [1989] 1 S.C.R. 3, at p. 11.

[14] Spontaneous Statement Analysis

However, we do not agree that by using the wrong words to describe what occurred, the trial judge fell into reversible error. In our view, what occurred may be more accurately described as follows: immediately upon being fully informed of his right to counsel for the third time, the appellant made a spontaneous and unprompted incriminating statement. As this court has held, if a detainee makes an un-elicited and spontaneous incriminating statement after being appropriately cautioned, there is no violation of s. 10(b): R. v. Guenter, 2016 ONCA 572, 340 C.C.C. (3d) 351, at paras. 61-62.

[15] Evidence of Spontaneity

As we have noted, the appellant attempted to speak while he was being cautioned. The CBSA agent made him stop so that the agent could ensure that the appellant was properly cautioned and advised of his right to counsel. It is clear on the record that once he had been read his rights, the appellant immediately launched into making a statement. There is no evidence that the CBSA agents began to question or interrogate the appellant before he made his statement. On the voir dire, while the appellant insisted that the statement he made was not what the CBSA agents described, he unequivocally described his statement as being spontaneous. He testified that as he was being cautioned he "jumped up out of the seat that I was sitting in and I said to them, 'Listen, there's a 100 'K' out there for me to be worried about'". He repeated this evidence at trial when he stated that he "jumped up off the bench". In our view, the appellant's evidence supports a conclusion that his statement was a spontaneous utterance made with full knowledge of his right to remain silent and speak to counsel.

[16] Duty to Refrain from Eliciting Evidence

The appellant concedes that the CBSA agents were under no legal duty to stop him from making his spontaneous statement. While the agents did not remain silent as the appellant made his statement, their evidence was that the questions they asked were simply to clarify what the appellant was saying. We recognize that the agents were under a duty to refrain from eliciting any incriminating evidence from the appellant until he had been given a reasonable opportunity to reach a lawyer or unequivocally waived his right to do so: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38.

[17] Delay in Access to Counsel

The appellant points to the fact that after he gave the incriminating statement, there was a 52 minute delay before the agents afforded him access to a telephone to contact counsel. Part of this time was taken to facilitate smoke and toilet breaks for the appellant. The appellant argues that this delay constituted a breach of his s. 10(b) right to counsel. He further submits that, as no causal relationship need be shown between the Charter breach and the incriminating statement for that statement to be "obtained in a manner" that infringes s. 10(b), the statement should be excluded pursuant to s. 24(2).

[18] Section 24(2) Exclusion Analysis

We agree with the respondent Crown that even if the clarifying questions and the delay in making it possible for the appellant to speak to counsel did amount to a breach of the appellant's Charter rights and this breach meant that the prior spontaneous statement was "obtained in a manner" that infringed s. 10(b), the evidence of the statement he made ought to be admitted under s. 24(2).

[19] Grant Test – Three Part Framework

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 92, holds that there is a "presumptive general, although not automatic" exclusion of statements obtained in breach of the Charter and that a three part test applies to determine whether admission of the evidence of a statement would bring the administration of justice into disrepute.

[20] First Prong: Seriousness of Charter-Infringing Conduct

The first question is the seriousness of the Charter-infringing state conduct. We are satisfied that the CBSA agents endeavoured to comply with their obligation to advise the appellant of his rights. They advised him of his rights three times, and on the third occasion, insisted that he stop talking while they completed reading him his rights. As we have found, they did not breach the appellant's s. 10(b) right to counsel before he made his incriminating statement. They delayed for 52 minutes in giving him access to a telephone to contact counsel after he had made his statement, but in all the circumstances, that was not a serious breach. The clarifying questions were not aimed at eliciting incriminating evidence but were prompted by the immediacy of the situation and the appellant's concern for his own and his family's safety.

[21] Second Prong: Impact on Charter-Protected Interests

The second question is the impact of the Charter-infringing state conduct on the Charter-protected interests of the accused. In Grant, the court stated that the impact on the accused's Charter-protected interests may be reduced if it is clear that the detainee would have made the statement in question notwithstanding the Charter breach: at para. 96. As David M. Paciocco and Lee Stuesser explain, the court in Grant thus made clear "that the impact of the breach will be lessened when there is no causal link between the breach and the statement": The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 420.

[22] Application of Second Prong

In our view, the impact on the appellant's rights was at the lowest end of the spectrum. The agents fully and repeatedly advised the appellant that he had the right to remain silent and that he had the right to contact counsel. Despite these cautions, the appellant spontaneously made his statement. The spontaneous statement preceded the clarifying follow-up questions and the 52 minute delay, and it is evident that the appellant would have made the statement notwithstanding any subsequent breaches. Accordingly, neither the 52 minute delay nor the clarifying questions had a meaningful impact on his Charter-protected interests.

[23] Third Prong: Society's Interest in Adjudication on the Merits

The third question is society's interest in adjudication on the merits. This factor clearly favours admission. Since the first two inquiries provide only limited support for exclusion, this factor confirms that the evidence should be admitted: see R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63.

[24] Conclusion on First Ground

For these reasons, we do not give effect to the appellant's first ground of appeal.

2. Willful Blindness

[25] Second Ground of Appeal

The appellant's second ground of appeal is that the trial judge erred by leaving with the jury the possibility of convicting him on the basis of wilful blindness.

[26] Trial Judge's Instruction on Knowledge

The trial judge instructed the jury that to convict the appellant of importing or possession for the purpose of trafficking, the jury had to be satisfied that the appellant actually knew the substance he was importing was cocaine. The trial judge added that a second way to prove this element of the offence was to prove that the appellant was aware of the need to make an inquiry about the nature of the substance, but deliberately failed to do so because he did not want to know the truth about it.

[27] Appellant's Argument

The appellant argues that only issue before the jury was actual knowledge and that there was no evidence from which the jury could conclude that the appellant had been wilfully blind.

[28] Evidence Supporting Wilful Blindness

We disagree with this submission. In our view, it fails to take into account the right of the jury to accept all, some or none of the appellant's evidence. As the respondent points out, there was some evidence of the possible involvement of S.S., a friend of the appellant, with the cocaine. The appellant testified that he had asked S.S., who was the general service manager of a trucking company, to refit the truck and that S.S. or others at the company had so refitted the truck. The refitting made it possible to conceal the drugs in the bed of the truck. The appellant had been with S.S. in Florida before his return to Canada. S.S. had asked the appellant to bring back a phone to Canada and the appellant was suspicious about why S.S. had made this request. While there was no direct evidence that S.S. may have planted the drugs in the truck, the suggestion that he might have done so was an available inference from the evidence. Indeed, the appellant testified that he believed S.S. had planted the drugs in the truck. In our view, it was open to the trial judge on this record to conclude that there was a basis for a finding of wilful blindness.

[29] Adequacy of Instruction

The appellant further argues that the instruction was inadequate and that if wilful blindness was to be left with the jury a full instruction was called for.

[30] Sufficiency of Jury Instruction

While the instruction was brief, in our view, it gave the jury the essential elements of wilful blindness and the information it needed to consider it as a possible route to satisfying the required element of knowledge.

[31] Trial Counsel's Position

We note that the appellant's trial counsel did not object, either to the inclusion of the wilful blindness instruction or to its adequacy.

[32] Conclusion on Second Ground

For these reasons, we do not give effect to this ground of appeal.

3. Reversal of the Burden of Proof

[33] Third Ground of Appeal

The appellant's third ground of appeal is that the trial judge reversed the burden of proof in his re-charge on the elements of possession.

[34] Initial Instruction and Re-charge

In her initial instruction, the trial judge told the jury in relation to the importing charge that they should have "no difficulty" in finding that the appellant was in possession of the cocaine when he crossed the border. The appellant's trial counsel objected and asked for a re-charge making it clear to the jury that to prove possession, the Crown was required to prove knowledge. The Crown agreed that a re-charge was required. In her re-charge, the trial judge stated: "If you are persuaded that he did not know…those bricks were in the truck you must find him not guilty."

[35] Harmless Error Analysis

Read in isolation, that instruction was wrong and reversed the burden of proof. However, we are satisfied that there is no realistic prospect that it could have misled the jury as to the proper burden of proof. The trial judge repeatedly instructed the jury on the presumption of innocence and that the burden of proof rested with the Crown throughout. The trial judge gave the jury a clear W.D. instruction. Particularly telling is the fact that the appellant's trial counsel, who had asked for the clarification and was well placed to assess its impact, made no objection but rather thanked the trial judge for making the clarification.

[36] Conclusion on Third Ground

Accordingly, we do not give effect to this ground of appeal.

Disposition

[37] Decision

For these reasons, the appeal from conviction is dismissed.

Robert J. Sharpe J.A.

C.W. Hourigan J.A.

G.T. Trotter J.A.