Court of Appeal for Ontario

Date: 2024-10-29 Docket: COA-23-CR-0167

Before: Roberts, Copeland and Dawe JJ.A.

Between:

His Majesty the King Respondent

and

Narado Richardo Henry Appellant

Counsel: Christopher O’Connor, for the appellant Geoffrey Roy, for the respondent

Heard: October 23, 2024

On appeal from the conviction entered on December 13, 2019, and the sentence imposed on January 27, 2020 by Justice Jamie K. Trimble of the Superior Court of Justice.

Dawe J.A.:

[1] The appellant was convicted of importing a controlled substance after he returned to Canada from a trip to Curaçao and 1.9 kilograms of cocaine was found hidden in the lining of his suitcase. He was sentenced to six years’ imprisonment. He appeals against both his conviction and sentence.

[2] At the conclusion of the hearing we dismissed both the conviction and sentence appeals without calling on the Crown to respond, with reasons to follow. These are those reasons.

A. The Conviction Appeal

[3] The central question at trial was whether the appellant knew that the suitcase he brought back to Canada contained a controlled substance. The appellant told the customs officer who first questioned him about his luggage that he had bought his suitcase at a Toronto flea market a few days before leaving on his trip. At trial, he gave a different account, testifying that while he was in Curaçao a friend had asked him to trade suitcases, and he had swapped the grey suitcase he had bought at the flea market for a black suitcase from his friend. This black suitcase was the luggage the appellant had with him when he returned to Canada. The appellant denied knowing anything about the cocaine found hidden in the suitcase’s lining.

[4] The trial judge disbelieved the appellant’s evidence. He concluded that the only reasonable inference available on the evidence that he did accept was that the appellant knew there were drugs hidden in the black suitcase.

[5] The appellant raises four grounds in his appeal against conviction. The first ground is that the trial judge erred in not permitting the appellant to adduce what he maintains was a prior exculpatory statement to the police. The second ground is that the trial judge failed to conduct a proper W.(D.) analysis: R. v. W.(D.), [1991] 1 S.C.R. 742. The third and fourth grounds allege errors in the trial judge’s treatment of the circumstantial evidence.

(1) The Edgar issue

[6] The appellant argues that the trial judge erred by not permitting the defence to adduce a statement the appellant made to an RCMP officer, Constable Cole. The defence sought to adduce a video recording of this statement as a “spontaneous exculpatory statement” under the Edgar exception to the general rule excluding prior consistent statements: R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 24, leave to appeal refused, [2010] S.C.C.A. No. 466. The statement was made eight hours after the appellant had seen customs officers open and inspect his suitcase and he was arrested for importing drugs.

[7] The appellant relies on Laskin J.A.’s observation in R. v. Liard, 2015 ONCA 414, 338 O.A.C. 104, at para. 63, leave to appeal refused, [2015] S.C.C.A. No. 402, that “[n]o single consideration, no single point in time, determines whether the spontaneity requirement has been met.” He argues that the trial judge took too rigid an approach to the issue of spontaneity and erred by placing excessive weight on the passage of time between the initial arrest and the statement. In his oral submissions, counsel went further and argued that there is no absolute requirement that a statement even be spontaneous in order to be admissible under Edgar.

[8] I do not agree that the Edgar exception expands as broadly as the appellant contends. As Laskin J.A. explained in Liard, at para. 62:

The requirement that the accused’s statement be spontaneous is the critical requirement for admissibility under the Edgar exception. Spontaneity is what gives the statement its probative value and justifies its admission. A spontaneous reaction is more likely “to truly reflect the individual’s honest and genuine reaction to the allegation”, and thus is more likely to be a reliable reaction. Conversely, when an accused has an opportunity to “think things through”, the spontaneity of the statement is diminished, and in some cases eliminated altogether. [Citations omitted.]

[9] That said, I agree that the Edgar exception does not impose any fixed time limits on when a statement must have been made in order to be found “spontaneous”. Rather, “spontaneity lies along a spectrum”, along which “the degree of spontaneity may vary”: Liard, at para. 63. As Laskin J.A. explained in Liard at para. 64:

[I]n determining whether an accused has satisfied the spontaneity requirement, the trial judge must consider all the circumstances of the case – the passage of time, any intervening events, and the making of the statement itself.

[10] The question of whether a particular statement is sufficiently spontaneous to meet the Edgar requirements for admission is “a discretionary decision” that “attracts the usual principle of appellate deference”: Liard, at para. 52.

[11] In this case, I am not persuaded that the trial judge erred in principle or made an unreasonable finding in concluding that the statement was not admissible under Edgar. He did not base his decision solely on the passage of time between the appellant’s initial arrest and his statement to Constable Cole eight hours later. Rather, the trial judge also appears to have relied on the evidence that the appellant had told the customs officer that the black suitcase was the same one he had bought at a flea market before his trip. It was reasonably open to the trial judge to conclude in these circumstances that the statement the appellant then made to Constable Cole eight hours later, in which he implied that the black suitcase might not be the same bag he had left with, was not spontaneous.

[12] In any event, despite having ruled that the appellant’s statement to Constable Cole was inadmissible under Edgar, the trial judge permitted defence counsel to cross-examine Constable Cole about it, and also allowed the appellant to testify about what he had told the officer. As the trial judge explained in his reasons:

In his evidence, [the appellant] admitted that during his statement to [the customs officer] and in his statement to Constable Cole, he never explained how he came to possess the black suitcase. That explanation came, first, at trial.

[The appellant] testified that during his statement to the police, he never mentioned the suitcase swap. Instead, he told Constable Cole to speak to his wife about the suitcase. To this extent, his evidence is consistent with Constable Cole’s evidence.

[The appellant] testified that during his statement he intended to explain the circumstances about the suitcase swap, but only after police spoke to his wife. He thought that if they spoke to his wife first, she could explain about their purchase of the suitcase at the Downsview Park flea market a few days before he flew to Curaçao, and that would make his explanation about the suitcase made after the police spoke to his wife sound true to the police.

[13] The trial judge went on to state that the appellant’s “explanation for his statements to [Constable] Cole regarding the suitcase does not make sense”, since “[i]t would be more logical if he had given his explanation about the suitcase purchase and swap, then invited the police to corroborate by speaking to his wife.”

[14] In light of the trial judge’s express rejection of the appellant’s explanation for his statement to Constable Cole, I see no realistic prospect that admitting the statement recording into evidence would have raised a reasonable doubt about the appellant’s guilt in the trial judge’s mind.

(2) The W.(D.) issue

[15] The appellant’s second ground of appeal is that the trial judge failed to conduct a proper W.(D.) analysis. In particular, the appellant argues that the trial judge did not properly consider whether the good character evidence he had adduced at trial raised a reasonable doubt about his guilt.

[16] The trial judge instructed himself on the law by quoting at length from the summary of the principles in W.(D.) set out by Hill J. in R. v. DaCosta, 2015 ONSC 1478, aff’d 2017 ONCA 588. I do not agree with the appellant’s argument that because the trial judge quoted from another judgment rather than restating the applicable principles in his own words, it can be inferred that he did not understand these principles, or that he failed to properly apply them.

[17] I also do not agree that the trial judge’s failure to expressly state that the appellant’s testimony did not raise a reasonable doubt in his mind supports the conclusion that he must not have properly considered the second branch of the W.(D.) analysis. Rather, when the trial judge’s reasons are read as a whole, it is clear that he was satisfied on the criminal standard of proof that the only reasonable conclusion supported by the circumstantial evidence was that the appellant knew about the cocaine hidden in his suitcase.

[18] In oral argument, counsel for the appellant suggested that the trial judge also erred by using his rejection of the appellant’s testimony as a “makeweight” that advanced the Crown’s case. However, he was unable to point to any passages in the trial judge’s reasons that disclose this error. To the contrary, the trial judge expressly instructed himself that the appellant “has no obligation to show another reasonable inference”, and that “[t]he onus is always on the Crown to establish beyond a reasonable doubt that the only reasonable inference is that [the appellant] knew the suitcase contained cocaine.”

[19] I also do not accept the appellant’s related argument that the trial judge failed to properly consider the evidence of the appellant’s good character. The trial judge summarized this evidence and correctly instructed himself that it was “relevant for two purposes”, namely: (i) as bearing on the appellant’s credibility, and (ii) on the issue of “whether, because of his character traits, [he] is less likely to have committed the offence”. I am not prepared to infer that because the trial judge did not return to this evidence later in his reasons, he must not have given it proper consideration. I am satisfied that the trial judge’s reasons as a whole show that he did consider this evidence. The ultimate weight that he chose to give it was entirely for him to decide.

(3) The circumstantial evidence issues

[20] The appellant’s third and fourth grounds of appeal both address the trial judge’s treatment of the circumstantial evidence he relied on in finding the appellant guilty.

[21] The trial judge identified five items of circumstantial evidence that he found supported the inference that the appellant knew about the cocaine hidden in his suitcase. The appellant’s first complaint is that the trial judge’s first and fourth items, which both summarize what the appellant told the customs officer about the suitcase, are essentially duplicative. The appellant also notes that the trial judge’s third point – that the suitcase had a luggage tag with the appellant’s name on it – had no real probative force, since the appellant was not disputing that the suitcase was his.

[22] While these are both fair points, they are of no consequence. The circumstantial case against the appellant did not depend on the number of individual items of circumstantial evidence that could be identified, but on their cumulative effect. As the trial judge correctly recognized, the key question was whether the evidence as a whole eliminated, beyond a reasonable doubt, any alternative inferences other than that the appellant knew about the drugs hidden in his luggage.

[23] The appellant’s second complaint is that the trial judge reversed the burden of proof by stating, as the fifth piece of circumstantial evidence he was considering, that:

[The appellant’s] conduct is consistent only with the fact that he intended to take the black suitcase home, keep it, and use it again. In other words, he would retain exclusive control over the suitcase after he left the airport.

[24] I see no error here. The trial judge was obliged to consider whether there were any other “’reasonable possibilities’ which [were] inconsistent with guilt”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37. On the appellant’s own evidence, the friend who gave him the black suitcase in Curaçao had not arranged for anyone to retrieve the suitcase once the appellant brought it into Canada. It would not make sense for the appellant’s friend to have tricked the appellant into unwittingly smuggling approximately $100,000 worth of cocaine into Canada without him or his confederates having a plan for retrieving the drugs afterwards. This was obviously not a problem if the appellant knew about the drugs and was a willing participant in the importation scheme. The trial judge was required to consider whether, if the appellant did not know about the drugs, there were any other reasonably possible ways for the people behind the importation plot to have obtained possession of the cocaine once the appellant took the suitcase home with him.

[25] It was not a reversal of the burden of proof for the trial judge to ask the defence to identify other reasonable possibilities for him to consider. Moreover, the trial judge was entitled to dismiss the one alternative that the appellant did put forward – namely, the theory that his friend’s confederates might have planned to break into his residence and steal the suitcase – as speculative and far-fetched, in the absence of any evidence that the friend or his confederates knew anything about where and how the appellant planned to store the suitcase.

[26] In summary, I am satisfied that the trial judge was entitled to conclude as he did that the circumstantial evidence as a whole – including the appellant’s admittedly false statement to the customs officer about the origins of the suitcase, and the apparent difficulty any third party would have experienced in retrieving the suitcase from the appellant if he was not a knowing participant in the drug importation plan – supported the inference that the appellant knew what was in the suitcase, and was inconsistent with any other reasonable possibilities.

B. The Sentence Appeal

[27] Citing this court’s decision in R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.), the trial judge identified the appropriate range of sentence for importation of 1.9 kilograms of cocaine as six to eight years’ imprisonment. He imposed a sentence at the low end of this range, taking into account the appellant’s status as a first offender and his favourable antecedents.

[28] The appellant argues that the trial judge placed “far too much reliance … on the range and quantity of narcotics in this case, while disregarding the mitigating factors and individualistic human nature of the sentencing process.” He argues further that this court’s holding in Cunningham, at p. 790, that the six-to-eight year range applies to couriers who import cocaine at the kilogram level “as a general rule, absent exceptional or extenuating circumstances”, has been overtaken by more recent Supreme Court of Canada authority. Specifically, in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 40, the majority emphasized that:

[I]t is inappropriate for appellate courts to “artificially constrain sentencing judges’ ability to impose a proportionate sentence” by requiring “exceptional circumstances” when departing from a range. Departing from a range or starting point is appropriate where required to achieve proportionality. [Citations omitted.]

See also R. v. S.W., 2024 ONCA 173, at para. 29.

[29] In my view, Cunningham and Parranto can be reconciled by recognizing that the term “exceptional circumstances” does not have a single fixed meaning. As Harris J.A. of the British Columbia Court of Appeal observed in R. v. Graham, 2022 BCCA 252, at para. 12, in the sentencing context:

[T]he term "exceptional circumstances" is simply a generalized description of the type of circumstances that justify imposing a sentence that is outside a conventional range. Judges should not be artificially constrained in imposing a proportionate sentence by an overly rigid insistence on a demonstration of exceptional circumstances.

[30] Tulloch C.J.O. made a similar point in R. v. Pike, 2024 ONCA 608, at para. 182, where he reconciled the holding in Parranto with this court’s use of the term “exceptional circumstances” in R. v. M.M., 2022 ONCA 441, at para. 16, by explaining:

M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate.

He noted further that this interpretation “is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories”: Pike, at para. 182.

[31] I agree that it would have been an error for the trial judge to have treated the Cunningham sentencing range as a “straitjacket”, or to have interpreted the language of “exceptional circumstances” as requiring a pigeonholing approach: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57, 69; Pike, at para. 182.

[32] However, I am satisfied that the trial judge did not make these errors. Cunningham itself made clear that courts are to take a fact-driven and case-specific approach to sentencing, stating “that trial judges must retain the necessary degree of flexibility to do justice in individual cases”: Cunningham, at p. 790. Read as a whole, the trial judge’s reasons show that he properly considered the mitigating factors relied on by the appellant, in combination, and decided that although they justified imposing a sentence at the low end of the Cunningham range, they were not “extenuating enough as mitigating factors to take the appropriate sentence below [this] range”. This was a discretionary decision for him to make, and I see no basis for interfering with his decision.

C. Disposition

[33] In the result, I would dismiss the conviction appeal. While I would grant leave to appeal sentence, I would dismiss the sentence appeal.

Released: October 29, 2024 “L.B.R.” “J. Dawe J.A.” “I agree. L.B. Roberts J.A.” “I agree. J. Copeland J.A.”