Court of Appeal for Ontario

Date: June 13, 2019

Docket: C64787 and C64788

Justices: Doherty, Watt and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Rochelle Vassell and Anna-Kay Bailey-Johnson Appellants

Counsel

Breana Vandebeek, for the appellant, Rochelle Vassell

Daniel C. Santoro and Cara Barbisan, for the appellant, Anna-Kay Bailey-Johnson

Xenia Proestos, for the respondent

Heard and released orally: June 10, 2019

On appeal from: the convictions entered by Justice I. André of the Superior Court of Justice, dated December 1, 2017.

Reasons for Decision

[1] The appellants returned from vacation in St. Lucia in possession of 1.4 kilograms of cocaine each. Duress was the only defence advanced at trial. The appellant, Bailey-Johnson, testified. The appellant, Vassell, did not.

[2] The trial judge convicted both appellants and they appeal their convictions only.

Issue #1 – Did the trial judge misapply the burden of proof as it related to the defence of duress?

[3] In his reasons, the trial judge accurately summarized the elements of the defence of duress: see para. 26. The trial judge also correctly described the burden of proof as it applied to that defence and the evidence of Ms. Bailey-Johnson: see reasons, para. 24. However, at para. 27, the trial judge said the following:

To succeed in its case against the accused, the Crown must prove beyond a reasonable doubt that at least one of the essential elements of duress is absent. If I have a reasonable doubt about all of these elements, I am obliged to find the accused guilty of importing cocaine. [Emphasis added.]

[4] The first sentence in this quote is a correct statement of law. The second italicized sentence is an erroneous statement of the law. If a trier of fact has a reasonable doubt about the existence of each of the elements of duress, the trier of fact must acquit.

[5] The trial judge reviewed the evidence of Ms. Bailey-Johnson at some length, eventually concluding that he did not believe her evidence that she and Ms. Vassell had been assaulted and threatened. He also held that the evidence did not leave him with a reasonable doubt about the threats and assaults: see reasons, paras. 45-46.

[6] The trial judge went on to hold that had he found the appellants were threatened, he would have found that a reasonable person in the position of the appellants would have had the capacity to report the matter to the Canadian police. In other words, there was a safe avenue of escape. The trial judge ultimately concluded, at para. 52, that the Crown had proved the case beyond a reasonable doubt and, in particular, that the appellants had not acted under duress.

[7] Reading the reasons as a whole, we are satisfied that the trial judge understood and properly applied the burden of proof as it related to the duress claim. The defence failed for two reasons. First, the trial judge did not believe the evidence of Ms. Bailey-Johnson and that evidence did not raise a reasonable doubt. Without that evidence, there was no evidentiary basis for the defence. Second, the evidence showed that the appellants did have a safe avenue of escape once they were within the jurisdiction of the Canadian authorities.

[8] The impugned passage in para. 27 is, in our view, when considered in the context of the entirety of the reasons, a simple misstatement by the trial judge. It does not, in our view, given the other correct references to the burden of proof which appear throughout the judgment, lead us to conclude that the trial judge made the fundamental error put forward by the appellants.

Issue #2 – Did the trial judge misapply the rule in Hodge's Case and erroneously require that Ms. Bailey-Johnson's evidence be corroborated?

[9] The outcome of the duress defence depended entirely on Ms. Bailey-Johnson's credibility. The defence argued that there was other evidence that rendered parts of her testimony more credible. The trial judge examined Ms. Bailey-Johnson's evidence in the context of the rest of the evidence. He found that parts of her evidence were in fact undermined by other parts of the evidence, and that while some parts of the rest of the evidence were consistent with some details that she gave, they did not render more credible the fundamental part of her evidence; that is, that she and Ms. Vassell were coerced into bringing the drugs into Canada by threats and assaults.

[10] The trial judge was not engaged in an inference-drawing or fact-finding process in this part of his reasons. He was testing the credibility of the direct evidence put forward by Ms. Bailey-Johnson in support of the defence of duress. He was testing that against other evidence in order to evaluate her credibility. We see no error in the approach he took to the evidence. Indeed, it is reflected in the approach that counsel took to the evidence in closing argument.

[11] The trial judge did misapprehend one part of the evidence. He referred to Ms. Bailey-Johnson as having "some training as a Canadian Border Services Officer" (para. 49) when describing her not insignificant academic and employment background in Canada. In fact, Ms. Bailey-Johnson had some training with the Canada Revenue Agency.

[12] We are not satisfied that this error was material to the outcome. First, it had absolutely no connection to the finding that the appellants were not coerced into bringing the drugs into Canada. Second, to the extent that it was relevant to the "safe avenue of escape" element of the defence, we see no significant difference between some training with the Border Services and some training with Revenue Canada insofar as the evaluation of a "safe avenue of escape" element of the defence is concerned. In any event, as noted above, the duress defence failed regardless of the outcome of the "safe avenue of escape" inquiry.

[13] The appeal is dismissed.

"Doherty J.A."

"David Watt J.A."

"G. Pardu J.A."