Court of Appeal for Ontario

Date: 2022-02-07 Docket: C67745

Judges: van Rensburg, Nordheimer and George JJ.A.

Between: Her Majesty the Queen Respondent

And: Brandi Mascarenas Appellant

Counsel: Maija Martin and David M. Reeve, for the appellant Christopher Walsh, for the respondent

Heard: February 4, 2022 by video conference

On appeal from the conviction entered by Justice Michael Block of the Ontario Court of Justice on August 30, 2019.

Reasons for Decision

[1] Ms. Mascarenas appeals her conviction for importing cocaine. At the conclusion of the hearing, we dismissed the appeal for reasons to follow. We now provide our reasons.

[2] The appellant received, at her home, a delivery of appliances from Panama that included eight water heaters. The arrival of these items was done through what is referred to as a “controlled delivery”. Prior to the delivery, the police had discovered that there was one kilogram of cocaine hidden inside each of the eight water heaters.

[3] The appellant gave evidence at her trial. The only other witness was the Canada Border Services Agency (“CBSA”) officer who had questioned the appellant when she arrived at the airport in Toronto on her return from Panama. In addition, there were certain admitted facts.

[4] On September 28, 2018, the appellant was questioned at Toronto Pearson Airport by a CBSA officer upon her return from Panama. She initially told the officer that she was on government assistance and had travelled to Panama to visit her mother and daughter. When the officer pressed the appellant further, she became very upset. She admitted that she had not seen her mother and daughter in Panama. Rather, she told the officer that her boyfriend owed a man named “Devo” $4,000. To pay this debt, Devo had arranged a trip for her to meet with two men in Panama and had given the appellant $7,000 U.S. She said that she was told to purchase household items and to ship those items back to her home in North York. She told the officer that one of the men had taken the receipts for the items, but she showed the officer an email on her phone which contained the details of a shipment from Panama that was to be delivered to her home in North York.

[5] At trial, the appellant recounted a different version of the events. She repeated that her boyfriend owed money to Devo. However, she said that Devo had arranged for her to provide escort services for a Nigerian man in Panama City. The appellant arrived at Toronto Pearson Airport on September 23, 2018 and was given $7,000 U.S. by Devo. She boarded a plane to Panama City, Panama. The appellant spent most of the trip with the Nigerian man and had two sexual encounters with him.

[6] When she was to return to Toronto, the Nigerian man, along with another man, convinced her that taking the $7,000 she had been given back to Canada would cause suspicion at the border, and that the safer option was to purchase household goods that she could ship to Canada and then use in the house she and her boyfriend were planning on moving into, or, alternatively, sell if she didn’t need them. She agreed and proceeded to purchase a number of appliances and household goods, which were loaded into two separate vehicles to be taken to a shipping company. The appellant testified that she purchased between 15 and 20 items but that she did not purchase any water heaters. With the help of this other man, the appellant arranged to ship these items to Toronto. She used all but $40, which she had in her possession on her arrival in Toronto, on the purchase of the goods and their shipping.

[7] The appellant testified that she felt that she had no other option for dealing with the money. Depositing the money in her bank account would jeopardize her status with Ontario Works, while being caught with it at the border, and admitting the money was from escorting, would jeopardize her ability to regain custody of her daughter. The appellant testified that she initially lied to the CBSA officer on the instructions of the Nigerian man and this other man. She did not want the officer to know that she was working as an escort. However, when the officer pressed her on her explanation, she provided additional details about her trip and the shipment of the goods. She said that she provided the officer with the tracking number for the shipment because she did not think there was anything wrong with the packages.

[8] The trial judge rejected the appellant’s evidence. He gave a number of reasons for doing so, including that there was no explanation why Devo would have given her $7,000 U.S. if the appellant’s boyfriend owed Devo $4,000. In terms of the suggestion that this scheme had not been arranged in advance, the trial judge questioned why the drug traffickers, who appeared to be sophisticated, would run the risk that the appellant might not agree to the appliances purchase scheme to get the drugs into Canada when she arrived in Panama. The trial judge also noted that the appellant had changed her story between the time she was questioned by the CBSA officer and the time of trial. In the end, the trial judge concluded that the appellant was a willing participant in the scheme to import the cocaine into Canada.

[9] The appellant raises three grounds of appeal. She contends that:

(i) the trial judge failed to adequately explain how he concluded that the appellant had knowledge of the drugs; (ii) the trial judge failed to properly apply the approach dictated by R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, to circumstantial evidence, in that the trial judge failed to consider whether the appellant’s explanation was a reasonable inference that was open on the evidence; and (iii) the trial judge improperly reversed the burden of proof by using his disbelief of the appellant to prove the offence beyond a reasonable doubt.

[10] We do not accept any of these challenges to the trial judge’s conclusion. First, the trial judge explained why he concluded, on all of the evidence, that the appellant had knowledge of the drugs. This included the sophistication of the import scheme, the lack of any other explanation for purchasing appliances which were easily accessible in Canada in Panama, the appellant’s changing story, and the general implausibility of her ultimate explanation. Based on all of the evidence, and his rejection of the appellant’s explanation, the trial judge concluded that the appellant “was a willing participant in the import scheme”. In our view, that conclusion was available on the evidence and was adequately explained.

[11] Second, while the trial judge may not have enunciated the precise approach from Villaroman, it is clear to us that he properly applied it. When he rejected the appellant’s evidence, for the reasons that he gave, he implicitly found that her explanation for the events was not reasonable. He did this based on all of the evidence, as he was required to do. The appellant’s focus on her showing the CBSA officer the particulars of the shipment, as evidence that she must not have known that there were drugs contained in it, fails to take into account all of the evidence. The trial judge explained that there were other reasons why the appellant might have acted as she did that were not consistent with a lack of knowledge.

[12] Third, the trial judge did not use his disbelief of the appellant’s evidence as proof of guilt. The appellant gave evidence which the trial judge rejected. The fact is that, once her evidence was rejected, it left only evidence that established guilt. The appellant’s fixation on the trial judge’s use of the word “concoctions” in describing the appellant’s evidence, as showing that the trial judge found her evidence fabricated and thus amounted to consciousness of guilt, greatly overstates what can be fairly taken from the trial judge’s use of that word. It also amounts to inviting this court to overturn the decision “not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 76.

[13] Finally, we would add that the trial judge’s reasons, while not lengthy, were entirely adequate in the circumstances.

[14] It is for these reasons that the appeal was dismissed.

“K. van Rensburg J.A.” “I.V.B. Nordheimer J.A.” “J. George J.A.”