Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210607 DOCKET: C66229

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Florence Bello Appellant

Counsel: Mark C. Halfyard, for the appellant Rick Visca, for the respondent

Heard: June 1, 2021 by video conference

On appeal from convictions entered on June 12, 2018, after a trial by a jury presided over by Justice Gisele M. Miller of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of two counts of importing heroin and two counts of possession of heroin for the purposes of trafficking. The appellant had testified she agreed to pick up two packages which she believed contained gold and cash. She was to receive $1,000. The packages contained about 2 kilograms of heroin. The outcome at trial turned entirely on whether the Crown had proved beyond a reasonable doubt that the appellant knew, or was wilfully blind, that the packages contained an illegal drug.

[2] The appellant alleges two errors in the trial judge’s instructions to the jury and seeks a new trial.

(1) The Trial Judge’s Instruction Against Propensity Reasoning

[3] The trial judge specifically cautioned the jury against propensity reasoning:

The Crown said to you in his closing address, that Ms. Bello is the kind of person who would take money to do something illegal. It is important that you make no decision on this case, based on the kind of person Florence Bello is. You must not conclude, even based on her admitted behaviour, that she is more likely to have committed any one of those offences, just because she is the kind of person who would do something illegal. Before finding Florence Bello guilty of any offence you must be satisfied beyond a reasonable doubt based on all the evidence that she committed that offence.

[4] The appellant submits the trial judge improperly invited the very propensity reasoning she had cautioned against when in the course of reviewing the Crown’s position. The trial judge said:

So, the Crown’s position is that Florence Bello is guilty of each of the offences charged. It is the Crown’s position that Ms. Bello’s explanations for her actions in this case lack credibility and common sense for several reasons, which include but are not limited to, that Ms. Bello admitted in examination by her own counsel that she knew bringing gold and currency into Canada was unlawful. As the Crown has indicated by her own admission, she is a person who would break the law for money.

[5] We agree with the respondent’s submission that this instruction, summarizing the Crown’s argument, addressed factors relevant to the jury’s assessment of the appellant’s credibility. Her expressed willingness to break the law for money was obviously relevant to her credibility. It may have been helpful had the trial judge reminded the jury of the improper propensity-based reasoning she had earlier described. We cannot say, however, her failure to do so resulted in reversible error.

(2) The Trial Judge’s Answer to the Jury’s Question

[6] During their deliberations, the jury asked for clarification of the difference between “negligence/recklessness or being wilfully blind?” After discussion with counsel, the trial judge answered the question with a brief reference to the concepts of recklessness and negligence and a detailed and accurate definition of wilful blindness. She related that definition to some of the evidence in the case.

[7] The trial judge’s response to the jury’s question correctly defined wilful blindness and equipped the jury to apply that definition to the evidence. The trial judge’s answer also adequately explained the concepts of negligence and recklessness so as to allow the jury to distinguish those concepts from wilful blindness.

[8] The appeal is dismissed.

“Doherty J.A.”

“G.T. Trotter J.A.”

“J.A. Thorburn J.A.”