WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2014-09-26

Court File No.: Brampton 3111 998 13 4035, 3111 998 13 1260, 3111 998 13 1351 & 3111 998 13 1352

Between:

Her Majesty the Queen

— AND —

Ms. Priscilla Abena Bekoe, Mr. Roberty Roy Gardener & Mr. Dwayne Robert McFarlane

Before: Justice P.F. Band

Heard on: June 9, 2014, June 10, 2014, June 24 & August 8, 2014

Reasons for Judgment released on: September 26, 2014

Counsel

Mr. T. Dietrich — counsel for the Crown

Mr. C. Hanson — counsel for the accused Ms. Priscilla A. Bekoe

Mr. S. Hinkson — counsel for the accused Mr. Roberty R. Gardener

Mr. G. Dorsz — counsel for the accused Mr. Dwayne R. McFarlane

INTRODUCTION

[1] Priscilla Bekoe, Robert Gardener and Dwayne McFarlane are charged with unlawfully importing into Canada a quantity of cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act on June 20, 2011. The charge against them arises from their alleged role in the importation of cocaine into Canada from Jamaica for which Ms. Tanya Whilby was found guilty after trial by judge and jury.

[2] All three accused elected to be tried by judge and jury and to have a preliminary inquiry in the Ontario Court of Justice. After a false start on June 9th, the preliminary inquiry took place before me on June 10 and 24. After counsel made their submissions, the matter was adjourned to August 8 for judgment.

[3] I requested that counsel provide me with additional authorities for some of their arguments in the interim; however, this did not occur. As a result, the matter was adjourned on August 8 to September 26 on the understanding that those who wished to file further authorities would do so by September 12. Mr. Dietrich did so on behalf of the Crown, as did Mr. Hinkson on behalf of Mr. Gardener, along with a brief written argument.

[4] Mr. Dietrich provided the following cases:

• R. v. Berryman, [1990] B.C.J. No. 1689 (C.A.)
• R. v. MacFadden, [1971] N.B.J. No. 77 (S.C.A.D.)
• R. v. Badgerow, [2010] O.J. No. 1029 (S.C.J.)
• R. v. Williams, [1995] O.J. No. 1012 (C.A.)

[5] In the course of his initial submissions, Mr. Dietrich also filed R. v. Tran 2011 ONSC 2419.

[6] Mr. Hinkson provided the following cases:

• R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411
• R. v. Huard, 2013 ONCA 650

[7] In the course of his original submissions, Mr. Hinkson also filed R. v. Caddedu 2013 ONCA 729.

[8] Mr. Dorsz and Mr. Hanson chose to rely on their oral submissions.

EVIDENCE TAKEN AT THE PRELIMINARY INQUIRY

Agreed Statement of Fact

[9] At the outset of the preliminary inquiry, counsel presented the following agreed statement of fact:

[10] That on June 20, 2011, Tanya Whilby arrived at Pearson International Airport in Mississauga from Montego Bay Jamaica. Upon arrival, she was sent for a secondary search by Canadian Border Services, where it was discovered that 1,432.6 g of cocaine were concealed in the false bottom of a suitcase that she had brought back with her.

[11] Ms. Whilby was arrested and charged with the offence of importing cocaine contrary to the CDSA. After trial before judge and jury, she was convicted and then sentenced to a Conditional Sentence of 2 years less a day.

[12] In addition to this admission, I heard the testimony of Ms. Tanya Whilby and of RCMP Officer Hugues Dionne.

EVIDENCE OF MS. TANYA WHILBY

[13] In early June of 2011, when she was 19 years old, Ms. Whilby was living on welfare in Toronto. She wanted to go to Kingston, Jamaica to visit her then boyfriend. At the time, she had been friends with a man she knew only as Blitz, for four or five months. She identified Mr. Gardener as her friend "Blitz" from the witness stand.

[14] She did not have the money to pay for a ticket to Jamaica so she approached Mr. Gardener, as he was her friend. He told her that he knew people who could get her a trip; he knew of other females who had gone on such trips. They did not discuss how the ticket would be paid for or by whom. She did not give it any thought.

[15] Within the next two weeks, Mr. Gardener contacted her, saying that the ticket was almost ready and that she should get prepared.

[16] Based on Officer Dionne's evidence and some travel documents filed as exhibits, Ms. Whilby's flight left Toronto on June 14.

[17] The day before her departure, Mr. Gardener contacted her via Blackberry Messenger – an instant messaging application. He alerted her that her trip would take place the following day.

[18] He told her that she would be picked up and taken to the airport by two people, one male and one female.

[19] At this point, she did not have a plane ticket in hand, had not paid for a ticket and did not know who would be paying for it. She did not have any spending money either.

[20] At no time did Mr. Gardener say he wanted her to do anything on the trip. He did not owe her anything. The two had not been romantically involved. She never asked him who paid for the ticket. She did not care who paid.

[21] On the morning of her departure for Jamaica, Ms. Whilby received a BBM from a user named "Diggz" telling her she would be picked up by a Cadillac and asking her where she wanted to be picked up. She provided an intersection near her home and 20 minutes later, a man and woman in a black Cadillac picked her up. She had never met them before. Without introducing themselves they drove to the airport.

[22] She identified Mr. McFarlane and Ms. Bekoe from the witness stand as the male and female in the Cadillac.

[23] She spent approximately one hour with them in the car and could see them from the middle of the back seat.

[24] Ms. Whilby testified that she saw the male, who was driving, from the back seat. She could see the back of his head and the side of his face. She could not see the left side or front of his face. She could see his nose only from the profile, and did not look into his eyes. In cross-examination by Mr. Dorsz, Ms. Whilby agreed that she did not pick anyone out in the first two of three photo line-ups. She then added that she picked someone out in the third photo line-up, after viewing the photos twice.

[25] Ms. Whilby described the female as having blond hair up in a pony tail. She was in her 20s, of average weight and pretty. Maybe as tall she is, at 5'7". She had no recollection of any jewelry, earrings, piercings or scars.

[26] In cross-examination, Mr. Hanson suggested to Ms. Whilby that she had not picked out Ms. Bekoe in two out of three photo line-ups and that she was mistaken in relation to her in-dock identification. Ms. Whilby denied being mistaken, and testified that she remembered seeing Ms. Bekoe's face. While she had no reason to memorize what she looked like, she had nonetheless done so.

[27] Ms. Whilby did not recall the content of any conversation that took place in the car, but knew that both the male and female spoke English without an accent or with a Toronto accent.

[28] Once at the airport, Ms. Bekoe gave her an itinerary and accompanied her into the airport. She stayed with her throughout the check-in procedure and walked with her to security, where they parted ways. The two probably had conversation but Ms. Whilby did not recall its content.

[29] Prior to leaving, Ms. Bekoe told Ms. Whilby that she would be met in Montego Bay by a man in orange.

[30] Ms. Whilby's plan was to stay with her boyfriend in Kingston for the duration of her trip.

[31] Upon arrival, Ms. Whilby was met by a man in orange who she came to know as "Ed." Ed received a telephone call from someone he referred to as "P". He handed the phone to Ms. Whilby. Ms. Whilby recognized the voice on the other end as being Ms. Bekoe's. Ms. Bekoe did not refer to herself as "P" during that phone conversation or any of the two subsequent conversations they had during Ms. Whilby's time in Jamaica.

[32] In the first conversation, Ms. Bekoe told Ms. Whilby to bring one of her suitcases back to Toronto for her. Ms. Bekoe told her to pack some Jamaican food and beverages in the suitcase. She also told her that she needed the suitcase for a future trip of her own to Jamaica.

[33] Ed then told Ms. Whilby that it was too late to drive to Kingston that day, but that he would drive her the following day.

[34] She spent the first night of her trip at Ed's home or that of a friend of his. The following morning, Ed drove Ms. Whilby to Kingston, where she stayed until Saturday, when Ed came to pick her up again.

[35] That day, she and Ed went shopping for the items Ms. Bekoe had requested. Also on that day, Ed assaulted Ms. Whilby, causing bruising to her face. The following morning, Sunday June 19, Ms. Whilby was due to fly back to Toronto. It was then that she first saw the suitcase, which she packed with the items she and Ed had bought for Ms. Bekoe. She had not lifted the suitcase prior to packing it, and did not notice anything unusual about it.

[36] Due to her injuries, she was not permitted to travel without a doctor's note. She obtained a doctor's note and was able to return to Toronto the following day.

[37] Prior to her departure, Ms. Whilby exchanged BBMs with Diggz, arranging for her to be picked up at the airport. Her intention upon arrival was to give the suitcase to Ms. Bekoe.

[38] When she arrived at Pearson, she received messages from Diggz asking which door to meet her at.

[39] She was then investigated and arrested.

[40] She never heard from any of the accused or Diggz after her arrest and did not see any of them again until the preliminary inquiry.

[41] In retrospect, she believes Ed might have put the cocaine in the suitcase.

[42] Ms. Whilby professed her innocence at trial and maintained it during the preliminary inquiry.

EVIDENCE OF OFFICER HUGUES DIONNE

[43] Officer Dionne was the Officer in Charge of the investigation of Ms. Whilby as well as the three accused before the court.

[44] During the course of his investigation, he observed the BBMs on Ms. Whilby's cell phone. He explained that the messages she referred to as being between her and "Diggz" were actually between her and a "Diggz-Teedot". He also saw that on the morning of Ms. Whilby's departure, "Diggz-Teedot" had sent her 647-701-9248 as a contact number (for convenience, I will refer to that number as "the 701 number" in the remainder of these reasons). He also confirmed that there were BBMs from "Diggz-Teedot" on Ms. Whilby's phone on the day of her return to Toronto.

[45] Officer Dionne also obtained Ms. Whilby's travel itinerary on Blue Mountain Travel letterhead, as well as a receipt of purchase for the plane ticket.

[46] The contact number on the receipt was the 701 number that "Diggz-Teedot" had provided in one of the BBMs.

[47] Officer Dionne explained that each Blackberry device has a "PIN" that is unique to that device. Unlike telephone numbers, a PIN cannot be transferred to another device.

[48] As a result of inquiries made of Blackberry/RIM, Officer Dionne learned that the "PIN" associated with BBM user "Diggz-Teedot" and the 701 number was also linked to Ms. Bekoe's credit card and address. This was demonstrated in transactions such as the purchase of applications.

[49] In 2012, Officer Dionne learned from RIM that a different telephone number had become associated with the PIN.

[50] Officer Dionne's further inquiries revealed that this number was associated with Mr. McFarlane in York Regional Police Service records as a result of a routine street check conducted in 2009.

[51] So while the 701 number was tied to the PIN/Blackberry that is associated with "Diggz-Teedot" at the material time, it is not the same as the phone number police believed was associated with Dwayne McFarlane in 2009.

[52] Mr. Dorsz's submissions assisted in summarizing Officer Dionne's evidence. He explained that at the material time – that is June 2011 – while the PIN and "Diggz-Teedot" username were associated with the 701 number, the 701 number was not linked to Mr. McFarlane. When Officer Dionne checked the PIN with RIM in 2012 – approximately one year after the offence was committed – the PIN was associated with a new telephone number – not the 701 number. Officer Dionne then discovered that this new number was associated with Mr. McFarlane in York Regional Police Service records dating back to 2009.

POSITION OF THE CROWN

[53] The Crown has invited me to commit all three accused as parties to the offence of importing cocaine into Canada, pursuant to s. 21(1) of the Criminal Code, and/or of conspiring to import cocaine.

APPLICABLE LEGAL PRINCIPLES

The Test on a Preliminary Inquiry

[54] The test on a preliminary inquiry, as set out in USA v. Sheppard (1976), 30 C.C.C. (2d) 424, is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Where there is admissible evidence which could, if it were believed, result in a conviction, the preliminary inquiry judge must commit the accused for trial.

[55] In R. v. Martin, [2001] O.J. No. 4158, the Ontario Court of Appeal explained that "the preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offense charged even if only a scintilla of evidence."

[56] In R. v. Charemski, [1998] 1 S.C.R. 679, the Supreme Court of Canada elaborated on the meaning of the phrase "sufficient evidence." That phrase means "sufficient evidence to sustain a verdict beyond a reasonable doubt; the concept of sufficiency always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case" (at p. 701).

[57] This case is to a great extent circumstantial. That is, there is no direct evidence that any of the accused persons handled the suitcase, knew the cocaine was in the suitcase, told Ms. Whilby to bring cocaine back to Canada or even talked about cocaine.

[58] As the Supreme Court of Canada stated in R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at para. 89, circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred."

[59] In such a case, the judge must engage in a limited weighing of the circumstantial evidence. In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23, the Chief Justice explained this process as follows [certain citations omitted]:

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed….The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[60] In doing so, the justice must consider the cumulative effect of the evidence said to point toward guilt: R. v. Coke, [1996] O.J. No. 808 (S.C.J.).

[61] As Justice Hill stated in R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377 (S.C.J.) at para. 73 [citations omitted]:

[62] Most cases "will involve hiatuses in the evidence which can be filled only by inference";

[63] Whether the inference is a reasonable one to draw usually involves an application of "human experience and common sense";

[64] Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence";

[65] A trier of fact "cannot be invited to draw speculative or unreasonable inferences"; and

[66] "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess."

THE ELEMENTS OF THE OFFENCE OF IMPORTATION OF COCAINE

[67] In R. v. Bell, [1983] 2 S.C.R. 471, page 478 Supreme Court of Canada explained the elements of the offence of importation: "an accused must bring in, or cause to be brought in, to Canada, goods from a foreign country; this, by definition, necessitates crossing the Canadian border." Once the goods enter Canada, the offence is complete.

[68] To be guilty of importation of cocaine, an accused must knowingly bring into Canada, or cause to be brought in, from a foreign country a substance he or she knows to be cocaine.

[69] Pursuant to R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. CA), the required mens rea is actual knowledge or wilful blindness as to the presence of narcotics.

MODES OF PARTICIPATION IN A CRIMINAL OFFENCE

[70] As the Supreme Court of Canada explained at paras. 13-17, of R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, Canadian criminal law does not distinguish between the principal offender and parties to an offense in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders and abettors equally liable. It reads:

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[71] The Court went on to explain party liability as follows [some passages and citations omitted]:

The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence.

While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1) (b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1) (c) includes encouraging, instigating, promoting or procuring the crime to be committed. …."

The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1) (b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.

[16] The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that "purpose" in s. 21(1) (b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. …..

[17] As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed.

[72] It is also the case that there can be more than one perpetrator, or principal, for purposes of s. 21(1) (a): see R. v. Shilon, [2006] O.J. No. 4896 (C.A.) at para. 47 and R. v. Ball (2011), 2011 BCCA 11, 267 C.C.C. (3d) 532 (B.C.C.A.).

INNOCENT AGENTS

[73] It is open to a court to find an accused who has committed an offence by means of an innocent agent guilty of "actually committing" the offence in question for purposes of s. 21(1) (a). This is because where the agent is truly innocent of any complicity in a proven crime, the act of the agent becomes or is deemed to be the act of the perpetrator: R. v. Berryman, supra, at QL pp. 7-8.

[74] The corollary to this principle is that the perpetrator cannot be convicted as an aider or abettor of the innocent agent: ibid, at QL p. 9.

THE ELEMENTS OF THE OFFENCE OF CONSPIRACY – SECTION 465(1)(C) OF THE CRIMINAL CODE

[75] The actus reus of the offence of conspiracy is "the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective:" see R. v. Alexander (2005), 206 C.C.C. (3d) 233 (Ont. C.A.) at para. 46 and R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565 at para. 39.

[76] Knowledge and acts in furtherance of a criminal scheme do provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred: see R. v. Alexander, supra, at para. 47.

[77] The mens rea that must be proved is the intention to enter into the agreement and to put the common design into effect: R. v. O'Brien, [1954] S.C.R. 666; R. v. Lessard (1982), 10 C.C.C. (3d) 61 (Que CA).

CONCERNS RELATED TO "EARWITNESS EVIDENCE" OR VOICE IDENTIFICATION AND EYEWITNESS IDENTIFICATION

[78] In his initial submissions on June 24, Mr. Hanson raised concerns about the frailties of Ms. Whilby's recognition of the female voice over the phone once she arrived in Jamaica, as being Ms. Bekoe's voice. On August 8, he appeared to concede that the issue was one of weight and not admissibility.

[79] In any event, based on R. v. Badgerow and R. v. Williams, supra, inherent frailties related to earwitness or voice identification are matters that go to weight rather than admissibility.

[80] Based on the vast body of law on the topic of eyewitness identification, including cases such as R. v. Holmes, [2002] O.J. No. 4178 (C.A.) and R. v. Frimpong, [2013] O.J. No. 1765 (C.A.), I am of the view that frailties of eyewitness identification evidence are also matters of weight rather than admissibility.

APPLICATION OF THE LAW TO THE FACTS OF THE CASE

[81] The parties do not dispute that Ms. Whilby brought a suitcase containing over 1 kg of cocaine from Jamaica to Canada on June 20, 2011. The issue is whether the Crown has presented sufficient evidence against each accused, or any of them, such that a reasonable jury, properly instructed, could find them guilty of actually committing the importation, aiding or abetting in the importation of cocaine and/or conspiring to import cocaine.

IDENTITY

[82] If the Crown has failed to present sufficient evidence of identity with respect to an accused, then that accused is entitled to be discharged. I therefore propose to address that issue first.

[83] I find that a reasonable jury, properly instructed, could find that all three accused were the individuals with whom Ms. Whilby had the described dealings surrounding her trip to Jamaica.

[84] In Mr. Gardener's case, at least for purposes of a preliminary inquiry, this is hardly controversial. Ms. Whilby knew him as a friend for 4-5 months.

[85] For good reason, Mr. Hanson and Mr. Dorsz spent a good deal of time in cross-examination focusing on the frailties of Ms. Whilby's in-dock identification of their respective clients, Ms. Bekoe and Mr. McFarlane. These concerns were raised in their submissions.

[86] While there are certainly significant frailties associated with Ms. Whilby's descriptions of those two individuals as well as her vantage point and degree of attention when observing them, I am of the view that once again these issues speak to weight rather than admissibility.

[87] I would add that this case is unlike the scenario described in R. v. Holmes, supra, where the witness observed the suspect for 2 seconds as he ran across the street and past her parked car.

[88] Ms. Whilby's opportunity to observe Mr. McFarlane and Ms. Bekoe was not so brief or hurried.

[89] Ms. Whilby's eyewitness identification of Ms. Bekoe and Mr. McFarlane, and her recognition of Ms. Bekoe's voice over the phone in Jamaica, constitute at the very least a scintilla of evidence as per R. v. Martin, supra.

[90] I would add that there is also real evidence upon which a reasonable jury could rely to confirm Ms. Whilby's identification of Ms. Bekoe and Mr. McFarlane: (1) the fact that Ms. Bekoe's credit card number and address are associated with the Blackberry from which the "Diggz-Teedot" BBMs were sent on the eve, and day, of Ms. Whilby's travel, and again on the date of her return to Canada; and (2) a telephone number associated with Mr. McFarlane in 2009 was associated with that same Blackberry device in 2012.

[91] I discuss these two factors in more depth below.

THE REASON MS. WHILBY WAS GIVEN A TRIP TO JAMAICA

[92] A reasonable jury, properly instructed, could conclude that the reason Ms. Whilby was given a trip to Jamaica was for her to pick up cocaine and import it into Canada. The following facts, in my view, provide circumstantial evidence from which this inference can reasonably be drawn:

• Ms. Whilby did not have any money;
• Ms. Whilby sought Mr. Gardener's help to obtain a free trip to Jamaica;
• Mr. Gardener told her he knew people who could arrange such a trip and that he knew of other females who had gone on similar trips to various countries;
• Ms. Whilby did not pay for her ticket to Jamaica;
• She did not know who paid for it and did not ask or care;
• Ms. Whilby did not physically obtain the ticket herself, it was obtained and given to her by someone else;
• Ms. Whilby did not choose her departure and return dates;
• Ms. Whilby did not know when she was leaving until the day before her departure;
• Ms. Whilby did not know how she was going to get to the airport until the day before her departure;
• Ms. Whilby did not know where she was going to be picked up from until the day of her departure;
• The three people who assisted her in obtaining the ticket and getting to the airport had no apparent interest in her going to Jamaica;
• Two were complete strangers to her: Ms. Bekoe and Mr. McFarlane;
• One, Mr. Gardener, had been a friend for 4 or 5 months who did not owe her anything and with whom she was not romantically involved;
• On her departure date, one or both strangers, Ms. Bekoe and Mr. McFarlane, accompanied her to the airport and within it to the security check in;
• Ms. Bekoe connected Ms. Whilby with Ed, a stranger to her;
• Ed met Ms. Whilby at the airport upon her arrival;
• Once she was on Jamaican soil, Ms. Bekoe told her to return with a suitcase;
• Because she had no spending money, Ms. Whilby was to a certain extent dependant upon Ed for travel and accommodations within that country;
• Ed provided Ms. Whilby with a place to stay for the night in Kingston;
• Ed drove Ms. Whilby from Montego Bay to Kingston, a journey of several hours;
• Ed drove from Montego Bay to Kingston to retrieve Ms. Whilby and bring her back to Montego Bay;
• Ed provided her with a place to stay, again, this time for two nights;
• Ed paid for the foodstuffs that Ms. Bekoe requested;
• Ed provided the suitcase to Ms. Whilby;
• The suitcase contained cocaine;
• Ed delivered Ms. Whilby to the airport in Kingston, with the suitcase, twice; first on Sunday and again on Monday;
• Ms. Whilby brought the suitcase containing cocaine to Canada with her;
• At some point during her trip, arrangements were made between "Diggz-Teedot" and Ms. Whilby for her to be picked up from Pearson on her return;
• "Diggz-Teedot" contacted her upon her arrival to ask where she could be picked up;
• After her arrest, she never saw or heard from Mr. Gardener, Ms. Bekoe or Mr. McFarlane again, nor did she receive any further BBMs from "Diggz-Teedot"; and
• Ms. Whilby was convicted of the offence of importing cocaine.

WAS MS. WHILBY AN INNOCENT AGENT?

[93] In his written submission, Mr. Hinkson argued strongly that Ms. Whilby ought not to be seen as an innocent agent for two reasons:

[94] First, the Crown prosecuted her as a principal importer at trial and cannot cast her as an innocent agent at the trial of Ms. Bekoe, Mr. Gardener and/or Mr. McFarlane; second, she was convicted as a principal.

[95] Quite fairly, and correctly in my view, Mr. Hinkson acknowledged that the jury would hear Ms. Whilby's testimony as to her innocence as well as the fact that she was found guilty despite professing her innocence at trial.

[96] I agree with Mr. Hinkson that the Crown will not be permitted to cast Ms. Whilby as an innocent agent at trial. However, in my view, whether Ms. Whilby was an innocent agent or not will nonetheless be an issue for the jury as it can be expected to arise from Ms. Whilby's testimony.

ROLE OF MS. BEKOE

[97] Based on the evidence before me, Ms. Bekoe played the most significant role in Ms. Whilby's trip to Jamaica. She picked her up with a male identified as Mr. McFarlane, gave her her itinerary, and accompanied her to the check in counter and then to security. She told her that she would be met in Montego Bay by a man in orange. Once in Jamaica, Ms. Whilby was met by a man in orange, a stranger that she came to know as Ed. Ms. Bekoe's connection with Ed was further established by the fact that it was on his cellular phone that Ms. Whilby spoke to Ms. Bekoe. In their first conversation on that phone, upon Ms. Whilby's arrival in Jamaica, she told Ms. Whilby to bring the suitcase back to Canada for her. Ed then provided Ms. Whilby with a place to stay for the night before taking her to Kingston. At the end of Ms. Whilby's trip, Ed picked her up, provided her with a place to stay and ultimately provided her with the suitcase that contained the cocaine.

[98] Based on cumulative effect of the evidence, a reasonable jury properly instructed, could find that Ms. Bekoe was a party to Ms. Whilby's importation of cocaine pursuant to ss. 21(1) (a),(b) and/or (c).

[99] That is, a reasonable jury could find that Ms. Bekoe intended for Ms. Whilby to import a substance Ms. Bekoe knew was cocaine, and knew that she would do so.

[100] A reasonable jury, properly instructed, could find, based on the facts above, that Ms. Bekoe intentionally engaged in the conduct above for the purpose of assisting Ms. Whilby in the commission of the offence of importing the cocaine, contrary to s. 21(1) (b).

[101] A reasonable jury, properly instructed, could also find that Ms. Bekoe abetted Ms. Whilby in the commission of the offence by encouraging, instigating, promoting or procuring the crime to be committed, contrary to s. 21(1) (c).

[102] Based on my reading of R. v. Bell, supra, a reasonable jury properly instructed could also find Ms. Bekoe guilty of importing cocaine into Canada by having caused the cocaine to be brought back in the suitcase, contrary to s. 21(1) (a).

[103] The same jury could also find Ms. Bekoe guilty as a principal under s. 21(1) (a) if they were satisfied that Ms. Whilby was an innocent agent.

[104] Ms. Bekoe will therefore be committed to stand trial as charged.

ROLE OF MR. MCFARLANE

[105] The degree of Mr. McFarlane's knowledge and participation is more difficult to determine because it is not clear who the person behind the "Diggz-Teedot" BBMs is, or even whether it is only one person.

[106] If Mr. McFarlane's role is limited to driving Ms. Whilby to the airport with Ms. Bekoe, then in my view the evidence is insufficient to commit him to stand trial on any of the potential charges.

[107] On the other hand, if Mr. McFarlane purchased a plane ticket for Ms. Whilby, a stranger, to go to Jamaica and planned to pick her up at the airport upon her return, then a reasonable jury could find that he did so knowingly and for the purpose of assisting her in importing cocaine.

[108] The question is whether a reasonable jury could infer that Mr. McFarlane possessed, operated or owned the "Diggz-Teedot" Blackberry at the material times.

[109] If the jury can legitimately draw that inference, then it would also make the inference that he purchased the ticket a reasonable one, by virtue of the fact that the telephone number associated with that device was left with the travel agency.

[110] What is clear is that at the time of the offence, "Diggz-Teedot", the PIN and the 701 number were associated with one particular Blackberry device from which BBMs were sent to Ms. Whilby.

[111] It is also clear that the device was associated with Ms. Bekoe via her credit card at the time of the offence and that, subsequently, a phone number known to be associated with Mr. McFarlane was attached to that device.

[112] In my view, a reasonable jury properly instructed could infer that that particular Blackberry was with Mr. McFarlane and Ms. Bekoe on the day that they drove her to the airport. This is one available and common sense inference based on the fact of the BBM communications surrounding the pick up time and location, and the fact that the Cadillac was at that precise location by the time Ms. Whilby had arrived.

[113] A reasonable jury could also draw the inference that the same Blackberry was owned, possessed or being operated by Ms. Bekoe or Mr. McFarlane on the date of Ms. Whilby's return, only a week later.

[114] In my view, much turns on the fact that Mr. McFarlane's telephone number in 2009 was attached to the Blackberry/PIN in 2012.

[115] Because Mr. McFarlane's telephone number and Ms. Bekoe's credit card information are associated with the same device, albeit at different times, a reasonable jury could also find that the two had a relationship that went beyond merely having been in the same car on the date of Ms. Whilby's departure.

[116] In my view, based on the fact that Mr. McFarlane's telephone number was later associated with the Blackberry, a reasonable jury could draw the common sense and reasonable inference that Mr. McFarlane had kept his telephone number throughout those years, and transferred it from phone to phone. The jury could also draw a reasonable inference that the Blackberry belonged to or was being used by Mr. McFarlane at the time of the offence and thereafter.

[117] For these reasons, that same jury could draw the reasonable inference that Mr. McFarlane purchased the plane ticket, since the 701 number was left with the travel agency and that he did so knowing either that Ms. Whilby was going to be importing cocaine or that Ms. Bekoe was.

[118] As a result, a reasonable jury could find Mr. McFarlane guilty either of aiding Ms. Whilby or Ms. Bekoe in the commission of the offence pursuant to s. 21(1) (b). I hasten to add here that, to properly instruct the jury about Ms. Whilby's role, a trial judge would explain the fact that wilful blindness is a sufficient mens rea for importation.

[119] Of course, given that Ms. Bekoe's credit card information was associated with the Blackberry at the time of the offence, a jury could reasonably infer that she owned or was in possession of the device and that she purchased the plane ticket.

[120] These inferences obviously point in different directions. But it is not my role to weigh their relative strengths or to choose as between them.

[121] Mr. McFarlane will be committed to stand trial as charged.

THE ROLE OF MR. GARDENER

[122] It is true that Mr. Gardener had no contact with Ms. Whilby while she was in Jamaica or thereafter. Had his role ceased after the first conversation, I would be of the view that his actions were insufficient to warrant committal to stand trial.

[123] However, in my view, a reasonable jury could find that he knew that Ms. Whilby would be going to Jamaica to obtain and import cocaine and that he assisted her in doing so by virtue of his involvement in procuring her a ticket and connecting her with Ms. Bekoe and Mr. McFarlane.

[124] Mr. Gardener and Ms. Whilby had been friends for 4 or 5 months. They were never romantically involved and he did not owe her anything.

[125] When she approached him in early June, he told her that he knew people who could get her a trip and that he knew of other females who had gone on similar trips to a number of countries.

[126] Later that week, Mr. Gardener contacted Ms. Whilby to tell her that the ticket was almost ready and that she should prepare for her trip. Then, on the eve of her departure (June 13), Mr. Gardener contacted her to alert that she would be leaving the next day. He told her that she would be picked up by two people, a man and a woman.

[127] On the next day, that is exactly what happened.

[128] Based on these facts, a reasonable jury could find that Mr. Gardener assisted Ms. Whilby in the importation of cocaine by facilitating not only the purchase of a plane ticket for her but also her connection with Ms. Bekoe and Mr. McFarlane up to the day before her departure, all for the purpose of aiding Ms. Whilby in the commission of the offence, contrary to s. 21(1) (b). Again, the jury would be instructed as to the fact that wilful blindness is a sufficient mens rea for importation.

[129] A reasonable jury could also find that, in doing so, Mr. Gardener assisted Ms. Bekoe in the commission of the offence, contrary to s. 21(1) (b).

CONSPIRACY TO COMMIT THE OFFENCE OF IMPORTING COCAINE

[130] I am satisfied that for the purposes of a preliminary inquiry, the cumulative effect of the evidence presented is sufficient enable a reasonable jury, properly instructed, to find that Mr. Gardener, Mr. McFarlane and Ms. Bekoe intentionally entered into a tacit or explicit agreement to import cocaine or cause it to be imported by organizing Ms. Whilby's trip, and to put that plan into effect.

[131] Based on the facts described above, the jury could reasonably find that Mr. Gardener, Mr. McFarlane and Ms. Bekoe acted in concert in arranging for Ms. Whilby's trip and her return with the cocaine. Principal among these, in my view, are the timing and content of the communications between Mr. Gardener and Ms. Whilby, the timing and content of communications between "Diggz-Teedot" and Ms. Whilby, the timing and content of the communications between Ms. Bekoe and Ms. Whilby, the existence of a relationship between Mr. McFarlane, Mr. Gardener and Ms. Bekoe, and the obvious inference that Mr. Gardener was in communication with Ms. Bekoe, Mr. McFarlane or both of them, all of which took place within the relatively brief period of three weeks.

[132] These facts point to a certain degree of coordination from which a reasonable jury could infer the existence of an agreement to engage in the pursuit of a mutual criminal objective: that is, the importation of cocaine by the mechanism of Ms. Whilby's trip to Jamaica.

[133] As a result, Mr. Gardener, Mr. McFarlane and Ms. Bekoe will also be committed to stand trial on one count of conspiracy to import cocaine.

Released: September 26, 2014

Patrice F. Band

Justice of the Ontario Court of Justice