COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cox, 2020 ONCA 820

DATE: 20201218

DOCKET: C66637

van Rensburg, Benotto and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keisha Cox

Appellant

Chris Sewrattan and Ashley Sewrattan, for the appellant

Maria Gaspar, for the respondent

Heard: December 4, 2020 by video conference

On appeal from the conviction entered on December 3, 2018 by Justice Jamie K. Trimble of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant appeals her conviction for importing 1.8 kg of cocaine. The cocaine, which was concealed in a variety of food products, was discovered in her suitcase as she returned to Canada from Jamaica. The trial judge convicted the appellant after concluding that she knew or was wilfully blind that her suitcase contained a controlled substance. The appellant argues that it was an error for the trial judge to rely on wilful blindness when there was no air of reality to knowledge based on wilful blindness in this case.

[2] As a substitute for knowledge, wilful blindness requires an evidentiary basis before it can be considered by the trier of fact: see R. v. Burnett, 2018 ONCA 790, 367 C.C.C. (3d) 65, at paras. 141-42. The Crown acknowledges that there was no air of reality to wilful blindness on this record. Indeed, the trial Crown relied only on actual knowledge in his submissions to the trial judge.

[3] The Crown on appeal asserts that the trial judge’s repeated references to wilful blindness did not amount to an error because it is plain from his reasons that he was satisfied that the appellant had actual knowledge of the cocaine in her suitcase. The Crown invites this court to disregard the references to wilful blindness as superfluous and unnecessary language. In the alternative, if the trial judge did err, the Crown asks that we apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, to dismiss the appeal and uphold the conviction.

[4] The appeal must be allowed. We are not confident from reading the trial judge’s reasons that he was satisfied beyond a reasonable doubt that actual knowledge was made out. He stated that the appellant “knew or was wilfully blind” in describing, albeit inaccurately, the Crown’s argument: at paras. 23, 34, and in setting out his conclusion that the only reasonable inference was that the appellant knew or was wilfully blind to the contents of her suitcase: at paras. 38, 42. These repeated references to wilful blindness suggest that the trial judge was not prepared to base a finding of guilt solely on actual knowledge, which in turn suggests that he may well have had a reasonable doubt on this issue.

[5] The Crown relies on this court’s decision in R. v. Ifejika, 2013 ONCA 531. In that case, which involved the appeal of a conviction for importing heroin, this court indicated that while it was unclear whether the trial judge convicted on the basis that the appellant actually knew there was heroin in the package or whether she was wilfully blind to that fact, this was not an error as either would suffice in law: at paras. 4, 8. The difference however is that, based on a review of this court’s reasons in Ifejika, there was an air of reality to both actual knowledge and wilful blindness. This court concluded, after reviewing the evidence, that on the entirety of the evidence it was open to the trial judge to conclude that the appellant knew or was wilfully blind that the package contained narcotics. By contrast, in the present case there was no air of reality to knowledge based on wilful blindness, and accordingly it would have been an error for the trial judge to find knowledge on that basis.

[6] The Crown asks that we apply the curative proviso. The proviso, as interpreted by the Supreme Court, applies to uphold a conviction where there is no “reasonable possibility that the verdict would have been different had the error at issue not been made”: see R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 617; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. That test can be satisfied in two ways. First, the proviso can apply if the error was harmless or trivial, in that it was “so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made”: see R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35. Second, the proviso can be applied for more serious errors, where the evidence is “so overwhelming” that a reasonable and properly instructed jury would inevitably convict: see Van, at para. 36.

[7] The Crown acknowledges that the prosecution case was not overwhelming. Nor in our view was the error minor or trivial. It went to the heart of what the trial judge had to determine – whether the appellant knew about the controlled substance in her suitcase. We are unable to say that the trial judge’s error was such that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made. Indeed, in resting his conclusion on actual knowledge or wilful blindness the trial judge here did not make a finding of actual knowledge beyond a reasonable doubt. Otherwise, the trial judge would have expressed his conclusion only in terms of actual knowledge, and he would have explained why actual knowledge was the only reasonable inference that could be drawn from the circumstantial evidence.

[8] Accordingly, the appeal is allowed, the conviction is set aside, and a new trial is ordered.

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”

“J.A. Thorburn J.A.”