Court of Appeal for Ontario

Citation: R. v. Thompson, 2021 ONCA 559 Date: 2021-08-05 Docket: C66630

Before: Watt, Roberts and Zarnett JJ.A.

Between: Her Majesty the Queen (Respondent) and Kebrahas Mark Anthony Thompson (Appellant)

Counsel: Mark C. Halfyard, for the appellant Scott Wheildon, for the respondent

Heard: April 21, 2021 by videoconference

On appeal from the conviction entered on October 25, 2018 by Justice Gisele M. Miller of the Superior Court of Justice, with reasons reported at 2018 ONSC 6393.

REASONS FOR DECISION

Introduction

[1] The appellant appeals his conviction for importing cocaine into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He submits that the trial judge erred in using a recklessness or negligence standard, rather than a subjective standard, to find that he was wilfully blind to the presence of illegal drugs concealed in his suitcases. He also submits that the trial judge failed to treat certain aspects of the appellant’s after-the-fact conduct as circumstantial evidence of innocence, and that she improperly took judicial notice of certain facts.

[2] For the reasons that follow, we dismiss the appeal.

The Factual Context

[3] Late in the evening on January 13, 2014, the appellant arrived at Toronto Lester B. Pearson International Airport on a flight from Montego Bay, Jamaica. He was directed to secondary inspection. Border Service Officers searched his suitcases, which the appellant confirmed he had packed.

[4] Eight plastic “Betapac” brand spice packages were found in the appellant’s suitcases – five curry and three black pepper. Although the packages bore no visible irregularities and appeared to contain the labelled spices, in handling them, one of the Border Service Officers noted that they seemed less malleable than would be expected, given their apparent contents. An officer cut open one of the packages and discovered cocaine. The appellant was arrested. The other packages were examined and also found to contain cocaine.

[5] At trial, the parties agreed that: approximately 3.7 kilograms of cocaine had been concealed in the spice packages; the appellant’s fingerprint was identified on the exterior of one of them; and, the cocaine had a value in the Greater Toronto Area that ranged between $170,000 and $407,000, depending on whether it was sold by the ounce, gram, or kilogram.

[6] The appellant gave evidence at trial. He testified that he had gone to Jamaica for a family member’s funeral. While there, he spent time with Neville Williams, with whom he was in a relationship and infatuated.

[7] According to the appellant, Mr. Williams asked him to bring some Jamaican spices to Toronto for Mr. Williams’ cousin (whose name the appellant was not given), for his restaurant “Iri Veggie Take-Out”. The appellant testified that Mr. Williams gave him the eight Betapac packages, that Betapac is a recognized brand of Jamaican spices, and that the packages looked normal and did not appear to have been tampered with. The appellant said that when he questioned Mr. Williams about the quantity, Mr. Williams told him that his cousin wanted a lot for the restaurant. Once in Toronto, the appellant was to await contact by someone who would pick up the packages.

[8] The appellant testified that it did not occur to him that the packages might have drugs in them. On cross-examination, he agreed that it should have occurred to him that something was suspicious, however, he maintained that nothing did. The appellant gave evidence about his knowledge of how the drug trade operates, and that he would never knowingly traffic drugs because he had previously been acquitted of an importing charge and was always checked at customs.

The Trial Judgment

[9] The trial judge set out the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, relevant to whether the charge was proven beyond a reasonable doubt in light of the appellant having given evidence.

[10] The trial judge accepted the appellant’s evidence about his relationship with Mr. Williams, and that it “might be true” that Mr. Williams provided the cocaine for delivery to someone at the restaurant the appellant identified. She also accepted that the cocaine was “cleverly concealed” in packages that appeared from the outside to be authentic packages of spice.

[11] However, the trial judge did not believe the appellant’s evidence that he did not know, or even suspect, that the spice packages contained illegal drugs. She found that his history and knowledge of the drug trade demonstrated a “heightened sensitivity to the fact and the ways in which drugs are imported from Jamaica into Canada”. She found it was inconceivable “that it would not have occurred to him that the spice packets contained some illegal drug”.

[12] The trial judge went on to find “that even if [the appellant] did not have direct knowledge that there was cocaine in the packets he was bringing into Canada, he was wilfully blind as to the presence of drugs in the packets, and did not take sufficient reasonable steps to assure himself that they were not there”. She found that the appellant’s enquiry of Mr. Williams as to the amount of spice “did not result in an answer sufficient to reasonably allay his suspicions” and the fact that he was not given the name of a person to deliver the packets to and was to await contact from an unknown person who would arrange pick up “should have raised rather than allayed any suspicions”. As the appellant acknowledged that curry powder and black pepper are readily available in Toronto, the trial judge observed that there would be no need for the appellant to bring those products to a restaurant that would likely have its own supplier and need those goods in greater quantities.

[13] The trial judge concluded that she did not believe the appellant’s evidence that he did not know the spice packets contained illegal drugs, nor did it leave her with a reasonable doubt. She concluded that she was satisfied on all of the evidence that the appellant knew or was wilfully blind to the fact that he imported cocaine into Canada.

Analysis

(a) Wilful Blindness

[14] The appellant argues that the trial judge did not properly find wilful blindness, as she focussed on whether the appellant should have been, or should have remained suspicious, rather than on whether he actually suspected there were drugs in the packages and deliberately failed to further inquire in order to avoid knowledge. The appellant argues that in doing so, she used a recklessness or negligence standard.

[15] We reject this ground of appeal for two reasons.

[16] First, the trial judge’s finding of wilful blindness was in the alternative to her primary finding that the appellant actually knew that the packets contained illegal drugs. The trial judge did not believe the appellant’s evidence that he did not know the packages contained cocaine, stating that it was “inconceivable” that he did not know. She concluded that she was satisfied beyond a reasonable doubt on all the evidence that he had the requisite knowledge. The evidence spoke powerfully to his knowledge, as it included the undisputed facts that: cocaine of significant value was concealed in packages; the packages were in suitcases that the appellant had packed and transported; and, that one of the packages bore the appellant’s fingerprint. Even if there was an error in the trial judge’s approach to wilful blindness, it would not affect the result.

[17] Second, we do not accept the argument that the trial judge used the wrong standard in her alternative wilful blindness analysis. The trial judge set out the correct definition of wilful blindness as articulated by this court in R. v. Lagace (2003), 2003 CanLII 30886 (ON CA), 178 O.A.C. 391, (Ont. C.A.) and R. v. Rashidi-Alavije, 2007 ONCA 712, 229 O.A.C. 365. Accordingly, when she twice in her reasons stated that the appellant was, in the alternative, wilfully blind, there is no doubt she was using the term as described in those cases – that the appellant was culpable because he actually suspected drugs but declined to make inquiries sufficient to allay those suspicions because he preferred to remain ignorant of the truth: see, for example, Lagace, at para. 28. The trial judge did not proceed on the erroneous basis that all that was required was that the appellant should have been suspicious.

[18] The trial judge’s findings in support of her conclusion on actual knowledge also support her alternative conclusion on actual suspicion. The trial judge considered, but rejected, the appellant’s evidence that he did not suspect drugs. The evidence she accepted as to the value of the drugs, the appellant’s history and knowledge of the drug trade, the concealment of the cocaine in the packages in the appellant’s suitcases, and the fingerprint, speak with equal power to a conclusion of actual suspicion and a deliberate failure to learn the truth.

[19] As Lagace makes clear, wilful blindness may be found even where an accused who held a suspicion made some inquiry. In determining whether an accused who made some inquiry remained suspicious and deliberately refrained from further inquiry to avoid the truth, “the nature of that inquiry will be an important consideration… For example, a finding that an accused took all reasonable steps to determine the truth would be inconsistent with the conclusion that the accused was wilfully blind”: at para. 28.

[20] The appellant focusses on the trial judge’s statements that the appellant did not take “reasonable steps” to ensure there were no drugs, that his inquiries were not sufficient to “reasonably allay his suspicions”, and that certain matters should have “raised rather than allayed any suspicions”. Read in context (and given her finding that the appellant was wilfully blind as discussed above), these statements reflect the trial judge’s consideration of the nature of the appellant’s inquiry, that is, of the steps he took to determine the truth. As explained in Lagace, the reasonableness of the steps taken is one factor to be considered; as earlier noted, if an accused took all reasonable steps, that would be inconsistent with a finding of wilful blindness. We do not interpret these statements to be the basis, let alone the sole basis, on which the trial judge concluded that the appellant was wilfully blind.

[21] We therefore reject this ground of appeal.

(b) After-the Fact Conduct

[22] A little over a month after the appellant was arrested, the appellant’s lawyer wrote to the police providing information that the packages had been provided to the appellant by Mr. Williams, and that they were to be delivered to Iri Veggie Take-Out.

[23] The appellant argues that the trial judge failed to take this evidence into account as something that reflected positively on his credibility, especially since the trial judge was critical of the appellant’s inability or failure to locate or contact Mr. Williams after his arrest.

[24] We reject this ground of appeal. The fact that the trial judge did not specifically refer to the letter does not mean she did not consider it – she was not obliged to detail all evidence in her reasons. Moreover, the trial judge accepted, based on the evidence at trial, that Mr. Williams may have provided the packages and that they may have been intended for delivery to that restaurant. She nonetheless rejected the appellant’s evidence that he did not know or suspect that the packages contained drugs. In other words, those facts did not exculpate the appellant. We see no basis on which to conclude that the fact that this information was contained in the appellant’s lawyer’s letter gives it a different effect.

(c) Improper Judicial Notice

[25] In her analysis, the trial judge noted that a restaurant would require much greater amounts of the spices than the amount the appellant was to deliver. The appellant argues that there was no evidence on the appropriate quantity of spice for a restaurant, and as such, the trial judge’s comment constituted an improper resort to judicial notice.

[26] In our view, the comment in question was not a finding of fact but was simply a minor part of the trial judge’s assessment of the inherent probabilities of the appellant’s evidence viewed through the lens of common sense. Moreover, the trial judge was entitled to disbelieve the appellant’s evidence, and reach the ultimate conclusions that she did, without that reference.

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

Conclusion

[28] For these reasons, the appeal is dismissed.

“David Watt J.A.”

“L.B. Roberts J.A.”

“B. Zarnett J.A.”