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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: 2014-12-08

Court File No.: Toronto RCMP 2014-135204

Between:

Her Majesty the Queen

— AND —

Kevine Brown

Before: Justice K. Caldwell

Heard on: November 12 and 13, 2014

Reasons for Judgment released on: December 8, 2014

Counsel:

Ms. Elizabeth Bellerose — counsel for the Crown

Ms. Kate Oja — counsel for the accused Mr. Kevine Brown

Judgment

Caldwell J.:

[1] Mr. Kevine Brown is charged with conspiracy to import heroin from Tanzania and Uganda, importing heroin from Tanzania, and possession of heroin for the purposes of trafficking.

[2] Ms. Oja, counsel for Mr. Brown, concedes that there is sufficient evidence to meet the test in United States of America v. Shephard that Mr. Brown possessed heroin for the purposes of trafficking thus Mr. Brown is ordered to stand trial on that count.

[3] It is further conceded that a conspiracy existed to import heroin into Canada from Tanzania and Uganda. The issue is whether there is sufficient evidence that Mr. Brown was part of that conspiracy. Further, in issue is the sufficiency of evidence of Mr. Brown's knowledge of and participation in the importation.

The Evidence

[4] The evidence is straightforward. Just over a kilogram of heroin was found by the British police in a package that originated in Tanzania and was passing through England bound for Canada. The heroin was concealed in the heels of women's leather sandals. The RCMP were contacted and they ultimately arranged for a controlled delivery to the destination address, 14 Rayoak Drive, an apartment Mr. Brown was sharing with his sister Ms. Tracy Brown.

[5] Around the same time, the American authorities intercepted a package en route to Canada from Uganda via the United States. Just over 390 grams of heroin were found packed into wooden statues. The destination address was the same as that of the Tanzanian package. No controlled delivery was arranged as Mr. Brown was in custody by this point.

[6] Much of this case was introduced via paper pursuant to a section 540(7) application. The main viva voce testimony came from Ms. Brown. Her testimony provides sufficient evidence of knowledge and control for the preliminary hearing purposes. She makes it clear that Mr. Brown was expecting a package, and it can be inferred from her description of his behaviour that he knew what the package contained. Nothing in her evidence suggests that he knew where the package originated.

[7] I will discuss the law of importation and inferences first. I will then move to the Tanzanian importation count, followed by the conspiracy counts.

Law of Importation

[8] The leading case is the S.C.C. decision R. v. Bell. This case warrants a detailed examination.

[9] Mr. Bell was charged with importing almost seven pounds of marihuana concealed in footstools. The drugs arrived in Toronto from Jamaica and then were shipped to the Mirabel airport in Quebec. The Toronto police became aware of the marihuana and informed the Quebec detachment. Once the drugs arrived at Mirabel, the police took the drugs to their detachment for a thorough examination and then returned them to Mirabel to await pick up by the owner. Mr. Bell picked them up at Mirabel after paying the amount owing on the waybill and after signing for them at customs. He was arrested shortly after he brought them to his home in St. Hubert, Quebec.

[10] Ultimately Mr. Bell had a jury trial. At the end of the Crown case, he brought a motion for a directed verdict. He argued at trial that the importation ended once the goods landed in Toronto. The trial judge did not accept that argument, finding that importation can extend beyond the time and place of entry into Canada. The judge granted the motion, however, on the basis that the drugs' removal by the Quebec police interrupted the "necessary continuity of possession of the accused".

[11] Both Justice McIntyre for the majority and Justice Dickson rejected outright this basis for the motion and found irrelevant the drugs' brief removal by the police. They disagreed, however, about the point at which importation ended. Mr. Bell argued that importing ended when the goods crossed the border which meant, in his case, Toronto.

[12] Justice Dickson held that importation should not be interpreted narrowly and that there was no need to restrict it to the border crossing. He stated, "the test is whether there is a direct link between the place of origin outside Canada and the destination inside Canada". As an example, he said that if the goods had been mailed to Mr. Bell's address, then the nexus would have been clear. On the actual facts of Bell, however, he would find that there had been importing to Toronto and to Mr. Bell's Quebec address.

[13] Further, the Crown argued that importation was a "continuing offence". Justice Dickson said that it was unnecessary to make that determination, and that determining importation's scope did not turn on such "definitional niceties".

[14] The majority took a different view. Justice McIntyre held that it was not a continuing offence. More importantly, he held that the offence ends once the goods enter the country. After that point an individual may be guilty of other offences but not importation. The importer in keeping or getting rid of the drugs "has embarked on a new criminal venture" such as possession for the purpose of trafficking.

[15] He added, however, that an importer does not need to physically carry the goods into the country or be present at the entry point. If an individual makes all the arrangements required to import the goods, then importation is made out.

[16] Ultimately the Supreme Court sent the Bell case back for a new trial. I was not clear on the evidence that led the majority to conclude that there was enough to warrant a new trial given that Mr. Bell was not present and had no dealings with the drugs when they arrived in Toronto. I assume, however, that it was the other evidence referred to by the Court – the number of the way-bill found written on a piece of paper in Mr. Bell's home, Mr. Bell's payment of the outstanding amount owed on the waybill, and the fact that he signed an entry form at customs in Mirabel to obtain release of the drugs.

Law of Inferences

[17] The test for committal is whether there is some evidence upon which a reasonable jury properly instructed could convict.

[18] This statement is not as simple as it appears at first blush. "Some evidence" does not mean that the Crown only has to present a bit of evidence pointing towards guilt. As Chief Justice McLachlin stated in R. v. Charemski, the evidence must be sufficient to allow a reasonable jury properly applying the law to be convinced beyond a reasonable doubt of the accused's guilt.

[19] Further, the preliminary inquiry judge does not weigh the evidence to determine if it is credible or true. There is a slight modification of this principle in circumstantial cases. In a circumstantial case there will be "an inferential gap" between the evidence and the fact that needs to be proven. In such instances the judge must weigh the evidence but only to determine if it is reasonably capable of supporting the inferences that the Crown will ask the jury to draw.

[20] It can be difficult to determine if the evidence is capable of such reasonable support as it is often difficult to determine the difference between speculation and a logical conclusion.

[21] A properly drawn inference does not amount to speculation. Speculation is akin to guesswork and proof beyond a reasonable doubt cannot flow from hunches, speculation or guesses.

[22] Justice Ducharme has outlined the two-step process required to draw a proper inference. First, the jury must determine if the primary facts underlying the inference have been proven.

[23] The jurors must determine if they are convinced beyond a reasonable doubt that these primary facts establish the inference requested by the Crown once they have determined the primary facts.

[24] At the preliminary hearing stage, the judge must determine first whether there is evidence of the primary facts. If there is such evidence, then the judge must determine if that evidence is capable of reasonably supporting the requested inferences.

[25] It can be very difficult to make the assessment required by the second step in this process. Justice Watt has noted that it is very difficult to precisely define the line between reasonable inferences and impermissible speculation.

[26] Justice Moldaver has noted that reasonable inferences needn't be those that are the most obvious or easily drawn. Instead, he stated, "all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn".

[27] On the other hand, Justice Fairgrieve of this Court has commented, "[s]imply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence".

Application of the Law to These Facts

[28] In this case there are the following primary facts:

• Mr. Brown's knowledge of the impending arrival of the package;
• His knowledge of the contents of the package;
• His address listed as the destination address on the package

[29] At issue is whether it can be concluded as a secondary fact or inference that Mr. Brown actually imported or was a party to the importation of the drugs given these primary facts.

[30] I find that a reasonable jury could not draw this inference and that to reach this conclusion would amount to impermissible speculation. There is no evidence that allows for this inferential gap to be bridged. Unlike the Bell case, absolutely no evidence was found tying Mr. Brown to the actual importation process – no way bills, airline flight numbers, pick up at the airport of the package.

[31] If Justice Dickson's view had prevailed at the Supreme Court, then clearly there would be enough evidence to warrant committal. Justice Dickson explicitly stated that the importation did not end until the package reached its final destination. The majority, however, clearly rejected this approach and held that the parameters of importation were more limited.

[32] Mr. Brown's address on the package certainly hints at the possibility of involvement in the arrangements required to actually bring the package into the country but this possibility simply amounts to speculation. It would be impossible, absent more, for a reasonable jury to find that Mr. Brown was involved in the arrangements or plans to bring the package across the border. There is sufficient to find that he was ultimately prepared to take possession of the package in Canada but no evidence to suggest that he knew where the package was coming from or that he participated in the plan to bring the drugs from Tanzania to Canada.

Conspiracy to Import from Both Tanzania and Uganda

[33] I find that there is insufficient evidence to order Mr. Brown to stand trial on the conspiracy counts for the reasons already outlined.

Conclusion

[34] I discharge Mr. Brown on all counts except the possession for the purposes of trafficking count.

Released: December 8, 2014

Signed: "Justice K. Caldwell"