Court of Appeal for Ontario

Date: 2024-05-06 Docket: COA-22-CR-0195

Before: MacPherson, Copeland and Gomery JJ.A.

Between: His Majesty the King Respondent

And: Jorge Andres Pontigo Appellant

Counsel: Amy J. Ohler, for the appellant Aaron Shachter, for the respondent

Heard: April 29, 2024

On appeal from the conviction entered on June 15, 2022 by Justice Irving W. André of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction for one count of importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The appellant arrived at Pearson International Airport on July 4, 2015 on a flight from the Dominican Republic. During the customs process, he was referred for secondary inspection. During a search, a Canadian Border Services Agency (“CBSA”) officer found 2.9 kilograms of cocaine hidden inside of tampered coffee bags in a duty-free shopping bag in the appellant’s possession.

[3] The only issue at trial was whether the appellant knew there was cocaine in the coffee bags. Because the appellant testified, the case turned on the application of the Crown’s burden of proof beyond a reasonable doubt to issues of credibility, as discussed in R. v. W.(D.), [1991] 1 S.C.R. 742, and the principles from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, in relation to proof beyond a reasonable doubt in a case based on circumstantial evidence.

[4] In his testimony, the appellant denied knowledge of the cocaine in the coffee bags. He testified that he travelled to the Dominican Republic for a vacation paid for by his sister’s ex-boyfriend, Orlando Bonilla Padilla. While in the Dominican Republic, Padilla approached him and asked if he was willing to assist with bringing cash into Canada. Padilla owned a business in the Dominican Republic, and the appellant testified that Padilla told him he was having difficulty bringing cash into Canada because of the $10,000 limit imposed by customs. The appellant agreed to assist him by surreptitiously bringing cash into Canada.

[5] The appellant testified that on the day of their return flight to Canada, Padilla bought four bags of coffee at the airport duty-free store and told the appellant to do the same. The appellant hid a roll of cash inside each of the coffee bags and resealed the bags. The two men got on the plane, each carrying a duty-free shopping bag with four bags of coffee, and stored them in the overhead baggage compartment. The appellant testified he fell asleep on the flight and Padilla woke him just as the plane was landing. The appellant suggested that he must have grabbed the wrong duty-free bag at the end of the flight, and he did not know that the coffee bags he was carrying contained cocaine. However, he admitted that he agreed to smuggle cash into Canada, and that he lied on his customs form about the cash he was importing.

[6] Although the appellant did not directly say that the cocaine was Padilla’s, the clear thrust of the appellant’s evidence was that his own duty-free bag contained coffee bags with cash in them and that he must have taken Padilla’s duty-free bag off the plane by mistake.

[7] In written reasons for judgment, the trial judge provided ten reasons why he did not believe the appellant’s evidence and was not left in a reasonable doubt by it. Considering the totality of the circumstantial evidence, the trial judge found that the Crown had proven beyond a reasonable doubt that the appellant knew that the coffee bags he carried contained cocaine, stating that it was “the only reasonable conclusion.”

[8] The appellant raises four grounds of appeal, some of which are interrelated.

[9] First, the appellant argues that the trial judge failed to consider the exculpatory value of two receipts in the duty-free bag carried by the appellant. In addition to the four bags of coffee with cocaine in them, the duty-free bag contained a pack of gum and two receipts. One receipt was in the appellant’s name; the other was in Padilla’s name. The receipt in Padilla’s name was for four bags of coffee and a pack of gum; the receipt in the appellant’s name was for four bags of coffee. The appellant argues that the trial judge erred by failing to consider the exculpatory effect of the receipt in Padilla’s name, relying on this court’s decision in R. v. Clouthier, 2012 ONCA 636, at paras. 12-16.

[10] We reject this argument. Clouthier is distinguishable from this case. In Clouthier, this court found reversible error where a trial judge had entirely failed to address significant exculpatory evidence. By contrast, in this case, there was no failure by the trial judge to consider whether the receipt in Padilla’s name had exculpatory effect. The trial judge specifically addressed the receipt in Padilla’s name in the bag carried by the appellant (along with the receipt in the appellant’s name). He found that the receipt did not have the exculpatory effect contended by the defence. Rather, in the context of all of the evidence, the receipt merely confirmed that the men travelled together and were involved in the same scheme. This finding was open to the trial judge on the record.

[11] Second, the appellant argues that the trial judge erred in finding that the appellant “tailored” his evidence to create the possibility that Padilla had taken the appellant’s duty-free bag (leaving the appellant to take Padilla’s bag, which contained the cocaine). The appellant argues that the evidence did not support the conclusion that he tailored his testimony, because the appellant had simply testified that the two men were sitting together and they placed their bags in the same overhead compartment, a commonplace event.

[12] We see no error in this portion of the trial judge’s reasons. We start by noting that the trial judge did not fall into the error of using the appellant’s constitutional right to disclosure against him, discussed in R. v. Peavoy (1997), 34 O.R. (3d) 620 (Ont. C.A.) and R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14. Nor did the trial judge find that the appellant “concocted” his evidence and then take the further step of using that finding as evidence that strengthened the Crown’s case or supported an inference of guilt, as discussed in R. v. Iqbal, 2021 ONCA 416, 406 C.C.C. (3d) 208.

[13] Rather, in the impugned portion of the reasons, the trial judge explained why he did not believe or have a reasonable doubt about the appellant’s evidence of the circumstances that purportedly led to him taking the wrong duty-free bag off the airplane. We note that the circumstances in the appellant’s evidence relied on by the defence to support the switched bag theory were not merely that both bags were in the same overhead compartment. The appellant also testified that he fell asleep on the flight and was awakened by Padilla just as the plane was about to land, with the result that he did not take care to make sure that he took the right bag. Then as he walked towards customs, he found his own coffee receipt in his pocket and placed it in the duty-free bag he was carrying. It was open to the trial judge to find this series of events implausible.

[14] Third, the appellant argues that in the portions of the reasons relied on for the first and second grounds above, the trial judge reversed the burden of proof by placing an onus on the appellant to provide other evidence, beyond his own testimony, in order for his version of events to be believed or to raise a reasonable doubt.

[15] We reject this argument. The trial judge did not shift the burden of proof. He carefully instructed himself on the Crown’s burden of proof and the principles from W.(D.). In the portions of the reasons challenged by the appellant, the trial judge responded to the defence submission that certain evidence was corroborative of the appellant’s evidence and therefore exculpatory. In explaining why he rejected the defence arguments about corroboration, the trial judge referred to the absence of certain evidence. These references by the trial judge do not show a shifting of the burden of proof: R. v. Chhina, 2016 ONCA 663, 340 C.C.C. (3d) 496, at paras. 34-35.

[16] Fourth, the appellant argues that the trial judge erred in applying the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) as a factor in assessing the appellant’s credibility. The trial judge found that counsel for the appellant had failed to cross-examine the CBSA officer who dealt with the appellant at secondary inspection about aspects of the appellant’s version of events, including what the appellant told him about who bought his ticket and whether he usually travelled alone internationally. The appellant contends that the trial judge was simply wrong about the absence of cross-examination, and was also wrong about the extent to which the defence sought to contradict the evidence of the CBSA officer. The appellant argues that the error was harmful because the trial judge placed emphasis on the Browne v. Dunn issue by addressing it first in the list of reasons for rejecting the appellant’s evidence, and because it impacted on some of his other reasons for rejecting the appellant’s evidence.

[17] The Crown concedes that the trial judge erred in his application of Browne v. Dunn, but argues that the error was harmless and that the court should apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46.

[18] We agree with the Crown’s submission that the Browne v. Dunn error was harmless, and we apply the curative proviso. The circumstantial case against the appellant with respect to knowledge of the cocaine was strong, although not overwhelming. The trial judge carefully considered the appellant’s credibility and gave extensive reasons why he did not believe the appellant’s evidence and was not left in a reasonable doubt by it. The Browne v. Dunn issue was one of numerous compelling reasons why the trial judge rejected the appellant’s evidence. We do not accept that the Browne v. Dunn error impacted the other nine reasons that the trial judge gave for rejecting the appellant’s evidence. Nor do we accept that the placement of that issue within the reasons was significant. We are satisfied that the error had no impact on the verdict.

[19] The appeal is dismissed.

“J.C. MacPherson J.A.”

“J. Copeland J.A.”

“S. Gomery J.A.”