Court File and Parties

Ontario Court of Justice

R. v. Conrod Colin Clarke

Date: 2019-04-05

Court File No.: Brampton 3111 998 18 3604

Between:

Her Majesty the Queen

— and —

Conrod Colin Clarke

Before: Justice G. P. Renwick

Heard on: 03 and 04 April 2019

Reasons for Judgment released on: 05 April 2019

Counsel:

• N. Cooper, counsel for the Public Prosecution Service of Canada
• R. Gadhia, counsel for the defendant Conrod Colin Clarke

Reasons for Committal

RENWICK J.:

Introduction

[1] The Defendant was an international traveller passing through the Toronto International Airport arriving from St. Lucia before heading onto an airplane heading to the United Kingdom. On the basis of a computer algorithm he was targeted by Canadian border officers for an immigration examination (as a foreign national arriving in Canada), and a customs examination with respect to anything he may be bringing into the country.

[2] During a routine search of the Defendant's luggage by border officials almost four kilograms of cocaine (benzoylmethylecgonine) was found secreted in the lining of both of his checked suitcases. The Defendant is charged with importing a schedule I substance under the Controlled Drugs and Substances Act. The prosecutor also seeks committal of the Defendant on an additional charge of possession of a schedule I substance (cocaine) for the purpose of trafficking.

[3] The Defendant resists committal on the basis of an insufficiency of evidence to establish the actus reus of possession (no proof he knowingly possessed the hidden cocaine), the mens rea of importing (even if he possessed the cocaine, there is no proof he ever intended to import the drugs into Canada), and the actus reus and the mens rea of possession for the purpose of trafficking (no proof to infer the prohibited purpose).

[4] The preliminary hearing raised three issues:

i. Was the Defendant in possession of the cocaine found in his suitcases;

ii. Did the Defendant import cocaine into Canada; and

iii. If it is established that the Defendant possessed the cocaine found in his luggage, was it possessed for the purpose of trafficking.

The Evidence

[5] I do not propose in these brief reasons to discuss much of the evidence. This was a brief hearing and I have reviewed my notes carefully before coming to any decisions about this case. There are no concessions respecting the ownership or possession of the luggage, the continuity of the contraband, or any other matter in issue. Nonetheless, the facts are not controversial.

[6] The Defendant arrived at the main Toronto airport on a flight from St. Lucia. As he was headed from his arrival gate to the gate for his connecting flight he was stopped by Canada Border Services Agency ("CBSA") officers for a random, routine examination. His luggage was apparently retrieved from his outbound plane and after some routine immigration questioning the Defendant's luggage was examined. He admitted to the border officer that the luggage was his, he had packed his luggage, and he was aware of its contents. The admissibility of these statements was admitted. Inside both of his checked suitcases, cocaine was found hidden beneath the lining of the interior of his luggage.

[7] Samples of each large bag of cocaine were sent to Health Canada for analysis. Each sample was analysed and found to be cocaine.

Legal Principles

[8] In this part, I will discuss my role as a preliminary hearing justice and the test for committal.

[9] In order to commit the Defendant to stand trial upon the charges sought by the prosecutor, I have to be satisfied that there is some evidence on each element of the offences, upon which a properly instructed jury could reasonably rely to find the Defendant guilty of these crimes beyond a reasonable doubt.

[10] In R. v. Pinnock, Mr. Justice Hill reviewed the jurisprudence of the role of the preliminary hearing justice, in the context of an application for certiorari to quash the defendant's committal to stand trial for murder. With respect to circumstantial evidence and the limited weighing function of the preliminary hearing justice, His Honour enumerated many of the governing principles, including the following:

1. A justice acting under Part XVIII of the Criminal Code pursuant to s. 548(1), "[w]here all the evidence has been taken" at the preliminary inquiry, "shall": ... if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial ...

2. In forming an "opinion" as to the evidence's sufficiency to justify committal, the justice exercises a discretionary, but constrained, assessment of the evidence. The whole of the admissible evidence is to be considered.

3. If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit to trial.

4. The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged – even if only a scintilla of evidence.

5. As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence. In other words, the preliminary inquiry is not "a forum for litigating the merits of the case against the accused". Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered." Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence.

6. The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecution adduces circumstantial evidence said to point toward guilt. 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." The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a "limited weighing" of such evidence as there exists "an inferential gap beyond the question of whether the evidence should be believed." Determining whether "facts have been established by evidence from which [the matter in issue] may reasonably be inferred" does not require the court to ask whether facts ought to be inferred. The preliminary inquiry judge is not to choose among competing inferences arising from the primary facts in evidence.

7. Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence." Most cases "will involve hiatuses in the evidence which can be filled only by inference." "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess." …

8. Some inferences are strong and capable of creating practical certainty while others are weaker. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw or indeed the most obvious or compelling inference. The trier of fact, of course, assesses the evidence "in light of common sense and human experience." The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence [references and citations omitted].

[11] It is trite to note that I need not actually draw factual inferences nor determine credibility or the inherent reliability of evidence in my limited role as a preliminary hearing justice: see R. v. Arcuri, 2001 SCC 54, at paragraphs 23, 30, and 33, and R. v. Kamermans, 2016 ONCA 117, at para. 15. As the trier of inference, I am required to perform a limited weighing of the circumstantial evidence to determine if the inferences sought by the prosecution are indeed capable of being drawn.

Discussion

[12] In order to commit the Defendant to stand trial for the alleged offences, I have to be satisfied that there is some evidence of each element of each charge, which if believed, would satisfy a properly instructed jury, acting reasonably, of the Defendant's guilt beyond a reasonable doubt. Simply put, I have to determine whether it is reasonable on the evidence I have heard for a jury to find the Defendant guilty of importing cocaine into Canada and possessing the cocaine for the purpose of trafficking.

[13] There is no direct evidence respecting the Defendant's possession of the cocaine found hidden in his luggage, nor is there any direct evidence of the purpose for possession of the cocaine, if I find that it was possessed by the Defendant. The prosecutor relies upon the reasonable inferences which may be drawn from the circumstantial evidence (the fact that the drugs are found among the Defendant's possessions and the amount of the cocaine) to support the required inference of possession (knowledge and control) and the Defendant's purpose in possessing these drugs. The prosecutor urges me to consider the evidence in its entirety in order to conclude that a jury could infer that the Defendant was importing cocaine into Canada when he entered the country with luggage containing cocaine during a brief layover between flights and that his possession of the cocaine was for the purpose of trafficking.

[14] The Defendant argues against committal because it is not reasonable to infer knowledge of the drugs given their hidden location. Also, even if the Defendant was aware of the cocaine, there is no evidence that he ever intended to import it into Canada, in fact, but for the intervention of the CBSA officers, he was separated from the luggage containing the drugs at all times and that luggage was never destined to remain on Canadian soil, and the lack of expert evidence about the amount of the drug leaves a gap which can only be bridged by speculation, rather than permissible inference. Without expert evidence it is unknown how much cocaine could be safely taken, over what period of time by a user, either recreationally, or to feed an addiction. The Defendant suggests, and I agree, that patterns of drug consumption are not issues for which judicial notice can be taken.

[15] I have neither the personal experience nor the knowledge of how much cocaine one might safely ingest, and over what period of time, either as a recreational user or as an addict (assuming each category of user exists for each of these drugs – again, I just do not know), in order to assess the possible inferences that may reasonably arise from the quantity of the cocaine found.

[16] However, several reasonable inferences may be readily drawn on the evidence I have heard:

i. Cocaine is a valuable illegal commodity;

ii. The Defendant was aware of the cocaine concealed within his luggage; and

iii. The Defendant intended to import the cocaine from St. Lucia, through Canada, to the United Kingdom.

[17] Counsel for the Defendant argued against drawing an inference of knowledge of the cocaine because of where it was hidden. The cocaine was not in the compartment where the Defendant's personal belongings were found, but rather, in each suitcase the cocaine was hidden beneath a liner separating the compartment where clothes are packed from that portion of the luggage containing the retractable luggage handle, and within another lining on the outside wall of the luggage.

[18] For counsel, there were too many questions unanswered by the evidence to infer any degree of knowledge of the cocaine on the part of the Defendant and an intention to possess cocaine, to import it into Canada, and to possess it for the purpose of trafficking. Questions unanswered by the evidence were: who secreted the cocaine, how long had it been there, who actually owned the luggage used by the Defendant, had someone at the airport hidden the drugs, and so on. Without any physical or forensic evidence tying the Defendant to the cocaine (residue found on him or his fingerprint found on one or both of the baggies containing the cocaine, for example), counsel suggests that it would be speculation rather than appropriate inference-drawing to fill the evidentiary gaps.

[19] Respectfully, I disagree. People are presumed to know what they have in their possession when travelling across international boundaries because of a general awareness that borders are meant to be secure, passengers and their belongings are subject to careful examination at international airports, and the interdiction of cross-border drug smuggling is global. More simply put, "[m]ost persons when travelling know what they are carrying and the contents of those receptacles."

[20] Counsel for the Defendant would not agree that it is a reasonable inference that international travelers are presumed to know of the existence of things discovered hidden within their luggage. In this case, the inference is difficult to draw, argues counsel, because the drugs were well hidden.

[21] Does an inference become unreasonable simply because it is difficult to draw? In R. v. Katwaru, the Ontario Court of Appeal held at paragraph 40:

In order to infer a fact from established facts, 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. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

[22] The test for committal does not require that inferences must be singular, irresistible, or even easy to draw. They need only be reasonable.

[23] In this case, there is also the Defendant's admission to the Customs Officer that the luggage was his, he packed the contents, and he was aware of the contents. This is some evidence which suggests knowledge and control of the recovered cocaine.

[24] Has it been established that the Defendant committed the mens rea to import cocaine into Canada? Counsel submitted that the mere passing through the international corridor from arriving planes to gates for international departures in the circumstances where the Defendant's luggage would automatically have been removed from one plane and loaded onto another cannot support a reasonable inference of the intention to import cocaine into Canada.

[25] Indeed, says counsel for the Defendant, neither the drugs nor the Defendant was ever expecting to cross the Canadian border and enter our country, although he took a connecting flight through Canada. According to this argument, were it not for the actions of the border officers, the Defendant would not have actually entered Canada. The proof of that is that he would not have had to claim his luggage, show his passport, complete a customs declaration card, or assent to any screening or examinations in order to walk from his arrival gate to his departure gate. The evidence established that a boarding pass and identification shown to airport security or airline personnel would have granted the Defendant passage through the international corridor and onto his departing plane, without any detour through Canadian Customs and Immigration. This is an attractive technical argument against finding the necessary mental element to import cocaine into Canada.

[26] However, I cannot accept the reasoning suggested by counsel for the Defendant for several reasons.

[27] Under our law, "[t]he [importing] offence is complete with the conjunction of the actus reus and mens rea. And this happens when the contraband "enters the country," a phrase that says nothing definitive about when the offence begins or ends." Once a trier of fact can reasonably infer the Defendant's possession of the cocaine secreted in his luggage, the trier of fact could easily infer the joining of the requisite mental state with the actus reus of bringing the cocaine into Canada (albeit temporarily) on the basis of the presumed awareness by the Defendant that he would be required to deplane and board a connecting flight in Toronto and his luggage would accompany him on these flights. While Canada was not the Defendant's ultimate destination, it was known by him when he left St. Lucia that he was connecting to his ultimate destination in Toronto. It is reasonable to infer that the Defendant intended to have his luggage (i.e., his cocaine within his luggage) forwarded through Canada to his destination in the U.K. Once the plane with his bags touched Canadian soil, the offence of importation was completed.

[28] As well, there is no boundary or line across which one passes upon the completion of an examination or screening at Customs and Immigration, short of which, one has not crossed the border into Canada.

[29] Moreover, the International Area of the Toronto airport is not a sovereign territory within the Canadian border. The fact that normally someone may not have to show a passport or pass through Customs and Immigration does not mean that the actual corridor through which connecting international travellers pass is a safe zone beyond the reach of Canadian law. To the contrary, the evidence clearly established that foreign nationals could be compelled to complete a Declaration card and pass through Immigration and Customs screenings upon request by a border officer, although they would not normally have to complete this process if they are in transit.

[30] For all of these reasons, I cannot accept the Defendant's argument that because of an administrative shortcut (one need not go through the Immigration and Customs process if one is merely travelling through Canada on a connecting flight), the Defendant did not enter Canada, or import drugs into Canada, or, if he did, it was without the required state of mind.

[31] Lastly, defence counsel argued that in the absence of expert evidence, the court cannot determine how much cocaine is sufficient to be for the purpose of trafficking. There was nothing about the manner of packaging the cocaine that suggested future distribution. Nor were any of the hallmarks normally associated with drug trafficking present: large amounts of cash in small denominations; weigh scales; "dime" baggies; cutting agents (to increase the volume); and the like. Here there was simply two large plastic bags containing a total amount of 3.9 kg of cocaine.

[32] That said, there are two features of the evidence that bend me toward committal. To travel from St. Lucia, through Canada, to the U.K., the Defendant would be bringing cocaine across several international borders. This increases the level of risk associated with its possession and the attendant costs. Possession in these circumstances would seem to require too much effort to obtain a drug for recreational purposes or to feed the immediate need of an addict.

[33] Also, the manner of concealment was sophisticated. From the photographs it appears that the lining beneath which the cocaine was hidden in each bag was carefully (re)placed to avoid drawing attention to the contraband and to make it appear as though the liner had never been displaced. This level of sophistication to avoid detection suggests significant planning and manipulation.

[34] Triers of fact are entitled to draw upon all of the circumstances surrounding the possession and may not require expert evidence to come to a conclusion that drugs were possessed for the purpose of trafficking: see R. v. Dixon, [2012] O.J. No. 2773 (S.C.J.), aff'd. 2014 ONCA 835 at paras. 12-14 and R. v. Scott, [2003] O.J. No. 90 (S.C.J.), aff'd. [2003] O.J. No. 4072 (C.A.) at paras. 53-56.

[35] "Context is important." The manner of concealment, the amount of the cocaine, the cost associated with travelling from the Defendant's country to the Caribbean and back, the risk of buying cocaine in another country and travelling with it abroad, all suggest an established commercial enterprise rather than an impulse purchase for the Defendant's personal use after his Caribbean vacation.

[36] Again, all of the individual circumstances or pieces of evidence independently prove very little, however, when linked together, they form a solid chain of inference of drug possession for eventual commercial distribution, which could reasonably be drawn by the ultimate trier of fact.

Conclusion

[37] I am satisfied that the trial court could reasonably find the Defendant guilty of importing cocaine into Canada and possessing cocaine for the purpose of trafficking (transferring, transporting, sending, or delivering) it to the United Kingdom. On this basis, Conrod Colin Clarke is committed to stand trial on these two counts.

Released: 05 April 2019

Justice G. Paul Renwick