Court File and Parties

Court File No.: St. Catharines - 2111-998-14-N0492-00 Date: 2015-04-09 Ontario Court of Justice

Between: Her Majesty the Queen — and — Olivia Morgante

Before: Justice D.A. Harris

Heard on: August 29, 2014, October 21, 2014, and December 23, 2014

Judgment Date: April 9, 2015

Counsel

D. Anger — counsel for the Federal Crown

D. Hurren — counsel for the defendant, Olivia Morgante

Reasons for Judgment

HARRIS J.:

The Charge

[1] Olivia Morgante is charged with trafficking in a fentanyl patch contrary to section 5(3)(a) of the Controlled Drugs and Substances Act.

[2] This is an indictable offence. Ms. Morgante elected to be tried in the Ontario Court of Justice and pled not guilty.

Evidence

[3] Correctional Officers Frank Dimarcantone, Michael Pernalu, and Tony Angelo Zenga testified for the prosecution. Ms. Morgante testified in her own defence.

[4] There is no issue that on February 1, 2014, Ms. Morgante went to the Niagara Detention Centre in Thorold and went through the admission process to allow her to visit an inmate, Andrew Gravelle.

[5] She asked for permission to have some forms given to Mr. Gravelle so that he could sign them. She then handed over three government forms.

[6] Correctional Officer Dimarcantone inspected these documents looking for contraband and saw a small clear plastic patch attached to one of the documents. This document bore the name Olivia Morgante.

[7] The patch was subsequently analysed and determined to contain fentanyl, a Schedule I drug.

[8] Ms. Morgante denied knowing that the fentanyl patch was attached to the form.

[9] That then is the only issue to be decided by me.

Legal Framework

[10] In deciding that issue, I am guided by the instruction from the Supreme Court of Canada in R. v. W.(D.).

[11] If I believe the testimony of Ms. Morgante, I must find her not guilty.

[12] Even if I do not believe her testimony, if it leaves me with a reasonable doubt, I must find her not guilty.

[13] If I do not know whom to believe, it means that I have a reasonable doubt and I must find her not guilty.

[14] Even if her testimony does not leave me with a reasonable doubt about her guilt, if after considering all the evidence that I do accept I am not satisfied beyond a reasonable doubt of her guilt, I must acquit.

[15] In determining this, I must keep in mind that Ms. Morgante, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven her guilt beyond a reasonable doubt. She does not have to present evidence or prove anything. It is not enough for me to believe that she is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard … falls much closer to absolute certainty than to proof on a balance of probabilities".

[16] This is a tough standard and it is so tough for very good reason. As Cory J. said in R. v. Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt … is one of the principal safeguards which seeks to ensure that no innocent person is convicted".

Analysis of the Accused's Evidence

[17] There were aspects of Ms. Morgante's evidence that did not make sense.

[18] For example, she testified that she and Mr. Gravelle were no longer in a relationship. She wanted nothing more to do with him. She was in a methadone program and not using illegal drugs. She was not certain if he was still using drugs or not but he was no good for her. He had got her in trouble with the law before, resulting in her being convicted of theft.

[19] If all of this was true, why would she be doing anything for Mr. Gravelle? That question cuts both ways. The prosecutor asks why she would take forms to the jail for him. The defence replies that many women do things for ex-partners that might not make sense to an objective observer but that Ms. Morgante would not go so far as to risk being caught smuggling drugs into a jail for this man.

[20] Ms. Morgante testified that she received a telephone call from Chris, a friend of Mr. Gravelle. Chris told her that Mr. Gravelle wanted her to bring the papers to the jail. She drove to Chris's house. While there, she separated her welfare cheque from the form it was attached to. She then left the house and went to the bank nearby to cash her cheque. She then returned to the house where she was given the forms for Mr. Gravelle. Unbeknownst to her, her welfare form was also attached to these. That was the form on which the fentanyl patch was attached. In retrospect, she assumed Chris had placed it there.

[21] This testimony raises a few significant questions. Why would she leave the house, go to the bank and then return? Why not pick up the papers for Mr. Gravelle, go to the bank, and then continue on from the bank directly to the detention centre? Why did she leave her welfare form at the house while she went to the bank? With respect to the first question, Ms. Morgante testified that she had no idea why she did this. She just did it. With respect to the second question, she said that she forgot the form there.

[22] A further question is why would Chris attach the fentanyl patch to her form rather than to one belonging to Mr. Gravelle? If Ms. Morgante looked at the documents and saw that her form was included along with those belonging to Mr. Gravelle, the natural thing for her to do would be to remove her form and deliver only the others since Mr. Gravelle did not need her form and Ms. Morgante did. That of course would have brought the smuggling scheme to a halt. Crown counsel argued that the only logical explanation was that Ms. Morgante was in on it from the start.

[23] On the other hand, counsel for Ms. Morgante argued that Ms. Morgante would have foreseen that if the patch was discovered on her form, it would implicate her. She also knew that any documents would be scrutinized by a Correctional Officer before being handed over to Mr. Gravelle. So surely she would not have agreed to the patch being attached to one of her documents.

The Visibility of the Patch

[24] Correctional Officer Dimarcantone testified that the patch was obvious to him. He conceded that he was specifically looking for contraband when he examined the form. He expressed no opinion as to how obvious it would be to someone who was not looking closely.

[25] The patch is also obvious to anyone looking at the exhibits after the fact but that is in large part the result of the patch being torn during the initial examination.

[26] So the evidence, to my mind, is unclear as to how obvious the patch would have been to anyone who looked at it.

[27] In any event, I again question whether any reasonable person, having looked at a form that had her name on it and had seen something new clearly attached to it, would then attempt to smuggle the form past Correctional Officers who she knew would be scrutinizing it.

The Accused's Conduct at the Detention Centre

[28] Correctional Officer Dimarcantone testified that Ms. Morgante was agitated. She said she had to go to work.

[29] Correctional Officer Pernalu testified that she left quite hurriedly after only 10 minutes although visits normally run for 20 minutes.

[30] Ms. Morgante testified that she rushed because she had to work that night and it was freezing outside.

[31] I note again that the Correctional Officers were trained to be looking for anything that might be suspicious and would be inclined to interpret her actions that way.

Wilful Blindness

[32] Crown counsel also argued that Ms. Morgante was reckless or wilfully blind to what was happening here. He referred to the Supreme Court of Canada decision in R. v. Briscoe, which summarized the law as follows.

[33] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.

[34] Wilful blindness is distinct from recklessness. Recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur.

[35] A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge.

Conclusion

[36] In the end, it comes down to whether I believed Ms. Morgante when she said that she did not know, or even suspect, that her form was included with the others that she was delivering to Mr. Gravelle or that a fentanyl patch had been attached to it.

[37] After considering all of the evidence, I cannot say that I believed Ms. Morgante. There are too many improbabilities in her evidence. On the other hand, while I suspect that she knew that the fentanyl patch was attached to the document, I am not satisfied that the Crown has proven that fact beyond a reasonable doubt.

[38] Ms. Morgante is entitled to the benefit of that doubt and the charge is dismissed.

Released: April 9, 2015

Signed: Justice D.A. Harris