Court File and Parties

Court of Appeal for Ontario Date: 20200305 Docket: C65447

Rouleau, Benotto and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Beverley Bernard Appellant

Counsel: Maija Martin and David Reeve, for the appellant Victoria Rivers, for the respondent

Heard: February 6, 2020

On appeal from the conviction entered by Justice Paul O’Marra of the Ontario Court of Justice on November 16, 2017, with reasons reported at 2017 ONCJ 847.

Reasons for Decision

[1] The appellant arrived at Pearson airport on a flight from Jamaica. She was arrested after a border agent found cocaine concealed in four jars that she had been carrying in her suitcase. The jars concealing the cocaine were one of curry powder, two of Metamucil and one of psyllium.

[2] The appellant claimed that she did not know there were drugs in these containers that a stranger had asked her to bring to Canada. She was convicted by the trial judge of importing cocaine. She appeals on the basis that the trial judge erred by: (i) not conducting a voir dire to determine whether a Jamaican Patois interpreter was necessary; (ii) misapprehending the evidence; (iii) failing to consider the third branch of W(D); and (iv) misapplying the principles in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[3] We do not accept these submissions.

[4] The language issue arose from use of a pronoun. It was suggested that in Jamaican Patois, where the appellant said “he”, she could be referring to a woman. Defence counsel raised this with the trial judge and requested a voir dire. However, counsel agreed with the trial judge that, as a precondition to the request, the court should review the video of the appellant’s testimony. This was done, and the request was never raised again. Since it was not pursued at trial, there was no need for a voir dire.

[5] On the second issue: the trial judge does appear to have been mistaken about some of the details of the evidence. In particular, whether the male stranger or the appellant’s cousin physically handed her the jars containing the cocaine; the precise movements of the people around the appellant over the day and hours preceding the flight to Toronto; and her family relationships. However, none of these matters were material to his ultimate findings on credibility and guilt.

[6] On the third issue: the trial judge correctly applied W(D). He examined the Crown’s case and was satisfied of guilt beyond a reasonable doubt.

[7] The final issue, with respect to Villaroman, arises because the trial judge said that the evidence “reasonably supported the inference” of guilt. The appellant submits that he did not consider other reasonable inferences that pointed towards the appellant’s innocence. However, when read as a whole, it is clear that the trial judge correctly understood the law. He explained that aspects of the appellant’s evidence “defied common sense” and he disbelieved her evidence as to how she came into possession of the drugs. The trial judge then went on to find that her evidence revealed inherently suspicious events and in effect, her “evidence alone was capable of supporting a finding of deliberate ignorance”. These findings when combined with the evidence led by the Crown, left no scope for inferences other than guilt.

[8] The appeal is dismissed.

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”

“Harvison Young J.A.”