COURT FILE NO.: CRIMJ(F)245/10

DATE: 20120116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

C. Letman, for the Crown

• and -

HOLLIE HARRIS

P. Rochman, for the Defence

Defendant

HEARD: September 21-23, November 9, 2011

JUDGMENT

HILL J.

INTRODUCTION

[1] Hollie Harris was arrested when she returned to Canada from a working vacation in Panama. About two pounds of cocaine was discovered in her suitcase. The accused maintains that she had no knowledge that the illicit drug was in her possession.

FACTUAL BACKGROUND

[2] The accused testified that in March 2009 she was 25 years of age and residing in Cambridge, Ontario with her grandmother and 7-year-old daughter. She had been employed for about a year and a half as an exotic dancer at a strip club, Locomotion, in Brampton. She was a prostitute performing “extras”. She was not in financial difficulties. Her family thought she was employed as a waitress. She was convicted and sentenced for fraud “over” in 2008 with a suspended sentence and two years’ probation. On Ms. Harris’ evidence, while she was aware that strip clubs had a reputation as a site for drug offences, she had not seen cocaine or any narcotic crimes being committed at Locomotion.

[3] Prior to 2009, the accused travelled through P.I.A. on two prior occasions relating to international flights in June and October 2008. On one occasion, she accompanied a customer she met at the club to Washington. The other time, she went to Panama with a friend who worked at Locomotion (Megan) and her sister.

[4] Early in 2009, she was introduced to Blair Curran at Locomotion. He was a customer at the club. On the accused’s evidence, she saw and spoke to Curran about five times prior to their departure for Panama in March. Each time she received money from him. On one occasion, she did “extras” for him outside the club. She understood he lived in Toronto and worked in construction. He was 49 years old. The accused testified that at about the end of January 2009 Curran asked her to go on” vacation” with him. He suggested Panama and a couple of other possible destinations including Jamaica. She agreed to Panama as she “had a good time” there. She informed Curran that her price to accompany and entertain him for the week was $2,000. He was to pay the airfare and hotel accommodation expenses. According to the accused, she had no concerns as Blair Curran “seemed like a decent guy”.

[5] The accused testified that by the end of February she told her employer of her pending absence and made babysitting arrangements. On the accused’s evidence, she received her $2,000 retainer two days before leaving for Panama. Her family thought she was employed as a waitress. They were unaware that she was “dancing” or travelling to Panama with a strip club customer.

[6] Produced at trial was a Travel Itinerary Invoice in the names of Blair Curran and Hollie Harris for an Air Transat round-trip flight between Toronto and Panama City (March 9 departure, March 16 return with a 7:15 p.m. arrival time) costing $2,800.00 in total. The e-ticket issuance date was February 12, 2009. The ticket noted as to baggage the 20 kg. maximum weight allowance per passenger.

[7] The accused testified that on March 9 she met Curran at his residence and left her car there. It was understood that the Curran’s son could move the car if he had. During the week, probably on Wednesday, her daughter’s father, Richard, phoned her in Panama asking if he could pick up the car and use it to drive to work. She agreed to that arrangement with Richard agreeing to pick her up at the airport on her return.

[8] The accused recalled that on the bus trip to the resort in Panama, a woman on the bus travelling alone, named Nancy, spoke to Curran as though she knew him. According to the accused, she was not curious about their connection so she asked Curran nothing about it. The accused and Curran shared a room at the hotel. In her in-chief testimony, the accused stated that Curran went to town (Panama City) with Nancy a couple of times. In cross-examination, the accused stated that Curran only went to town with Nancy one time. He spent a “fair bit” of time with Nancy. Nancy joined them for dinners and the three spent time at the beach too. Nancy said she was from Toronto. The accused did not know Nancy’s surname. For some of the time, the accused hung around with a couple of girls her own age who she met.

[9] Ms. Harris testified that she took about $200 of her own money on the trip. She did not go to the nearest town. She did not leave the resort property. She bought nothing for her daughter.

[10] The accused testified that prior to leaving Panama to return to Canada, Curran was aware that Richard was picking her up at the airport.

[11] According to the accused, the day they were to leave to come back to Canada, March16, Nancy came to their room saying she had “over-shopped”, was over her duty-free limit, and asked the accused if she would take some clothes and souvenirs for her. She agreed to do so and put the items in her suitcase. She did not ask Nancy about their value.

[12] In her in-chief evidence, Ms. Harris stated that she first saw the four health care product containers subsequently seized from her luggage on her last day in Panama. As she and Curran were packing their suitcases, he asked her if she would mind putting a few things of his in her suitcase. She agreed and put the containers in her bag. She saw Curran with 4 Pantene product containers two of which he gave to her. He gave no explanation why he wanted her to carry them. She did not ask why. She “assumed the same thing Nancy told me”. On her evidence, she thought nothing of it and had no concerns about the bottles. They seemed like “regular things” he got “for cheap” in town. In cross-examination, the accused stated that she thought they might be for his grand-daughter.

[13] Ms. Harris testified that she gave no thought about the products given to her by Curran as being readily available in Canada. She also did not consider whether the weight of the items given to her by Nancy and Curran would affect luggage weight restrictions on what she could carry on the plane.

[14] In cross-examination, Ms. Harris testified that Nancy came to their hotel room and persuaded her to carry items for her before Curran gave her the four containers to carry.

[15] Questioned in-chief about any arrangement to return items she was carrying to their owner, the accused stated, “I guess after the flight probably”, “I guess I was supposed to give back what I had of his to him”. Asked in cross-examination about returning items to Nancy, the accused initially said that she had Nancy’s phone number in Toronto. As well, the accused responded to Crown counsel that there was “no” discussion with Curran about return of the property and that she “assumed” he and Nancy “would pick their stuff up after we had left the airport” – “we didn’t really discuss it” and therefore, in the accused’s words, she made an “assumption” that “they’d pick it up after we landed and after we checked out”. Pressed in cross-examination, the accused then stated that there had been discussion in Panama as she raised the subject there, “...maybe you guys will get them after...we land when we leave the airport”.

[16] The accused recalled no discussion with Curran on the plane-ride home regarding how he was to get his bottles of healthcare products back. Although she herself bought nothing in Panama, she recorded $100 of out-of-country purchases as an “estimate” of the value of what she was carrying on behalf of Curran and Nancy. She had not asked them about the value of the items they had given her. After landing at P.I.A., she was unable to reach Richard from the plane because there was no cellphone reception.

[17] Robert MacKnight, a member of the Canada Border Security Agency (C.B.S.A.) Integrated Customs Enforcement Team (I.C.E.T.) at Pearson International Airport, was on uniformed duty on March 16, 2009 at Terminal 3. His duties ordinarily included “roving” passengers deplaning flights from Caribbean drug source countries including Jamaica, Brazil, Panama and Columbia.

[18] On March 16, before 9:00 p.m., while targetting Air Transat Flight #659 arriving from Panama City, MacKnight intercepted a couple apparently having travelled together. He questioned Blair Curran and the accused as they were on their way toward the baggage carousel area. MacKnight examined the travellers’ E-311 Customs Declaration cards. They had the red pen marking of the customs primary officer. He then highlighted the cards with a blue marker such as to signal to other C.B.S.A. officers that the passengers were to be referred to the Customs secondary inspection area (“secondary”) for a mandatory examination relating to illicit drugs. That day, the accused was the subject of a C.B.S.A. “look-out”. At trial, MacKnight could not recall whether he knew of a look-out for the travellers. Each traveller claimed to have one piece of checked luggage. As was his normal practice, C.B.S.A. Officer MacKnight went to secondary to await the two passengers he had referred for further examination.

[19] On the accused’s evidence, in the line-up to go through the initial customs booth at the P.I.A., she had her La Senza Bra Club card and two boarding passes in her passport (Exhibit #s 11 C to H). Because they kept falling out, and she felt they were no longer needed, and there were no garbage cans available it seems in the area of the lineup to see an officer at a primary checkpoint booth, she put them in her bra intending to throw them out later. She ripped the items so they would fit in her bra.

[20] The accused testified that when the officers at the primary Customs check-point or booth asked her if she had purchased anything while away, she responded that she had purchased clothes and souvenirs. She recalled meeting C.B.S.A. Officer McKnight and seeing him mark their E-311 cards. She did not know the significance of the marking he placed on her card.

[21] The accused informed the court that the flight was 30 to 40 minutes later from its 7:00 p.m. arrival time and that because there was a lightning storm there was a further delay in the baggage being unloaded. In these circumstances, she wanted to call Richard, who worked nights starting at 9:00 p.m. He had to go to work and she did not want him to leave the airport. Because there was signage prohibiting cellphone use where she was, she decided to move “outside” into the public area in order to make a phonecall. The accused testified that she did not know the airport well. She believed she could then come back into the secure baggage area.

[22] On her evidence, the accused was unaware of arrivals/departures level designations at the airport. She testified that she did not know on March 16, 2009, that the departures level was upstairs. According to the accused’s evidence, in subsequently telling the authorities that she wanted to go “upstairs” to phone she really only intended to step out on the same level where there was an escalator and restaurants in order to phone Richard. She told Curran she was going to call her daughter’s father and asked him to grab her bag “if it came around”. He agreed that he would. However, as she was about to go out, on asking a Customs officer if she could go out and use her phone, she was directed in pretty stern terms to go down to secondary. The accused denied that she abandoned her suitcase out of last-minute concern that she might be caught with the bottles containing cocaine.

[23] When she arrived in the Customs secondary area, Curran was not there. She sat on a bench. Curran arrived after about 25 minutes and sat beside her. When she asked him if he had her suitcase he said “no”. She was “surprised” that he had not brought her bag. The accused testified that she did not have the opportunity to ask Curran why he had not grabbed her bag as McKnight called him away. She was under the “impression” she could not then leave the area and get her own bag. Curran was then called to the counter by Officer McKnight. To the accused’s recall, she was seated about 35 feet from where the officer was dealing with Curran. According to the accused, she observed four bottles removed from Curran’s luggage. She had seen two containers of Pantene product in Curran’s possession in Panama. At secondary, she saw one bottle from Curran’s bag being opened with something stuck into it. She heard her travelling companion then arrested for importing cocaine. The accused testified that about ten minutes after Curran’s arrest she was called to Officer Vantresca’s counter.

[24] MacKnight testified that at about 9:00 p.m., he commenced the secondary examination of Curran. The officer could not recall whether the accused was in the area awaiting examination. He examined Curran’s checked suitcase with baggage tag #139983 and the name Blair Curran.

[25] Four bottles of healthcare products removed from Curran’s suitcase were x-rayed and revealed abnormalities. A NIK field test disclosed that cocaine was in a plastic membrane in one of the bottles. MacKnight reported the items to have the following manufacturer-labelled contents and the weights the officer noted after weighing the items: a bottle of Pantene Pro-V shampoo (700 ml/.94kg.), a bottle of Pantene Pro-V conditioner (750 ml./.97kg), a bottle of Dial For Men Hydrating Wash (532 ml./.74 kg), and a bottle of Advanced Lubricating Moisturizing Lotion (591 ml./.75kg.).

[26] MacKnight found Curran to be extremely nervous with a trembling voice and shaking hands. He arrested Curran for smuggling.

[27] C.B.S.A. Officer Vantresca, also an I.C.E.T. member, roved Air Transat Flight #659 on March 16, 2009. He referred some of the flight’s passengers to secondary examination. Subsequently, as the officer was in the secondary examination area, he observed the accused seated on a bench awaiting her turn to be called to one of the examination counters. The officer agreed that the accused would have been in a position to see Curran being processed at Officer MacKnight’s counter about 70 feet away.

[28] At about 9:10 p.m., Vantresca summoned the accused to his counter after she had waited about 20 minutes and asked her to produce her travel documents including her passport and E-311 card. The latter document claimed that goods of a $100 value had been purchased while out of Canada. From review of the Declaration Card, the officer learned that the accused was the subject of a Customs look-out. Vantresca asked the accused whether she was in possession of all of her bags. On his evidence, the accused responded, “Well this is my carry-on bag”. Asked who she was travelling with, the accused answered, “My uncle. I travelled with him to Panama”. Vantresca testified that when he asked the accused whether she had other bags, he received the reply, “Well, I had one other bag but I wanted to go upstairs so I didn’t claim it. I told my uncle that I wasn’t going to claim it”. Asked where the bag then was, the accused stated, “I don’t know”.

[29] The accused agreed that she was asked the first two questions described by Curran and that she gave the answers he testified to. She was embarrassed to say why she had been in Panama. It had been agreed with Curran that when in Panama he would be described as her uncle. Although she was unable to recall precisely what she answered, she did say that she had not yet claimed her bag as she wanted to go upstairs to use her cellphone. The witness could not recall if she gave the reply ascribed to her to Vantresca’s fourth question. The accused testified that she told the officer that she had told Curran to get her bag if she had not returned from using her cellphone.

[30] Officer Vantresca informed the court that the ‘go upstairs comment’, a nervous statement, made no sense at the time. The departures level was upstairs and the accused was not boarding a connecting flight. He asked the accused no further questions about her comment. According to Vantresca, the accused appeared nervous. She had a noticeably flushed complexion to her face, neck and upper chest. Although he had no note of it, and did not mention it in describing the accused’s demeanour at the preliminary inquiry, he recalled that there was a bit of tremble in her voice as she spoke.

[31] On Vantresca’s evidence, at about 9:20 p.m., he, along with C.B.S.A. Officer Gioia, escorted the accused back to the baggage hall to the area of carousel #8 to find her bag. The accused was cooperative. As they approached the carousel, the accused spontaneously said words to the effect of, “The purple one, that is my bag”. The officer observed a fully-closed suitcase sitting upright on the floor adjacent to the luggage carousel. The luggage had a tag on it bearing Blair Curran’s name. According to Vantresca, there were garbage cans in the area and signage prohibiting cellphone use.

[32] While still in the luggage hall, Officer Vantresca asked further questions of the accused as follows:

Q, Are these two bags yours? [referring to the accused’s carry-on bag and purple suitcase]

A. Yes.

Q. Did you pack your bag yourself?

A. Yes.

Q. Are you aware of the contents of your bags?

A. Yes. I have to tell you I have the same bottles that my uncle has in his bags. He gave them to me in Panama.

[33] Vantresca testified that he found the last comment to be very suspect. He was satisfied that the accused was being progressively deceptive. He was aware that Curran had been arrested. According to Vantresca’s notes, at 9:22 p.m., he arrested the accused for smuggling suspected narcotics. He found the accused to be cooperative. She understood her rights. The officer recalled the accused reiterating that, “They’re not mine”.

[34] C.B.S.A. Officer Gioia testified in-chief that on March 16, 2009 she walked with Officer Vantresca to the baggage hall of PIA Terminal 3 where she first encountered the accused. In cross-examination, the witness corrected her response to say that she first met the accused in the Customs secondary area. Gioia recalled the accused, as she claimed her suitcase in the baggage hall, saying that she had the same bottles that her uncle had in his bags and that he had given them to her in Panama. Gioia testified that she did not know whether the accused had a purse or how many pieces of luggage she had as Vantresca had control of the luggage.

[35] The accused did not dispute Officer Vantresca’s account of their conversation in the baggage hall. The accused informed the court that she made the comment she did, not because she knowingly brought cocaine into the country, but because she had seen the events in Customs secondary relating to Curran’s apprehension.

[36] The accused was escorted back to the Customs secondary examination area. Officer Gioia had the accused’s bags. At about 9:30 p.m., inspection of the purple suitcase commenced. The receptacle contained personal effects and clothing consistent with someone on vacation. In addition, there were four healthcare product bottles in the suitcase bearing labelling including Spanish language wording. The officer was unable to recall with certainty whether the bottles were together or scattered throughout the receptacle. He could not recall whether the four items were in a plastic bag hand-knot-tied.

[37] According to Vantresca’s in-chief evidence, the four bottles visually appeared very full and distended in the sense of having convex edges and appearing fuller and feeling heavier than if purchased from a drugstore. Cross-examined as to the photos he took of the front of the bottles, photos not depicting any such abnormalities, the officer stated that the distension could be seen from a side view. Under further questioning, the officer stated that the bottles may have been only slightly distended and expressed less confidence that the bottles were in fact in a condition other than as they had been manufactured.

[38] Officer Vantresca testified that he cut into one bottle and found the contents contained in clear plastic inside the container. A NIK test revealed the presence of cocaine. Vantresca informed the court that as he examined the bottles and did his testing the accused was repeatedly crying and at times looking down and away from the officer’s activities.

[39] At about 10:20 p.m., the accused was turned over to female C.B.S.A. Officers Gioia and Marsden.

[40] In a search room, Officer Gioia was the lead officer responsible for the personal search of the accused while Officer Marsden took notes. To Gioia’s recall, the search would have involved a search of the arrestee’s clothing, purse, and wallet. On Gioia’s evidence, at about 11:07 p.m., during the search when the accused was partially dressed, Air Transat baggage claim tags were located concealed in the accused’s bra. According to Officer Gioia’s in-chief testimony, eight pieces of ripped paper, all from the bra, were together handed to the witness. In cross-examination, the witness stated that the items may simply have fallen on the ground during the search. She took custody of the tags, looked at them only briefly, and gave them to Vantresca. At trial, the witness testified that she could only identify boarding pass fragments in the accused’s name and a ripped La Senza Bra Club card (Exhibit #s 11 C to H). The witness had no notes describing the specific items but claimed independent recall. As well, Officer Gioia made specific notes of Exhibit #’s 11 A and B, baggage claim tags in Blair Curran’s name, #TSC139982/139983. On Gioia’s evidence, because Marsden was taking notes, she made fewer notes.

[41] C.B.S.A. Officer Marsden testified that she only vaguely recalled the investigation relating to the accused. She needed to rely on her notes. The witness was assigned to assist Officer Gioia with a personal search of the accused. Her main function was to observe and to take notes. In the search which began after 10:30 p.m., several pieces of baggage tags, one to two inches square, were found in the accused’s bra – the accused had her eyes toward the ceiling as the items were handed to the officer. Marsden did not inspect the items. They were placed in an exhibit bag. At trial, she was not in a position to identify the items.

[42] The accused testified that during the strip search she removed the ripped-up items (Exhibit #s 11 C to H) from the left side of her bra and gave them Officer Gioia. At trial, the accused stated that she had no recall of Exhibit #s 11 A and B bearing Curran’s name. They were not in her bra. Ms. Harris was unsure whether they may have been in one of her pockets.

[43] Shortly after 11:30 p.m. on March 16, 2009, R.C.M.P. Constable Hawkins received from C.B.S.A. Officer Vantresca the property and travel documentation seized from the accused including the Exhibit #11 items. There were baggage tags attached to the accused’s suitcase. The officer testified that she saw nothing abnormal about the four bottles seized from the accused’s suitcase.

[44] In her statement given to Constable Hawkins, after an opportunity to consult counsel, the accused provided the following information:

(1) she had been employed at Locomotion for “almost a year now” and at Rogers for 2 ½ years

(2) Curran was not a “blood-related” uncle – he was a friend of her father’s side of the family

(3) the trip to Panama was planned “a few months” in advance of departure

(4) she gave Curran about $1400 for him to purchase her airplane ticket

(5) while waiting for the luggage to arrive on March 16, 2009, she said to Curran, “I’m going upstairs...because he’s [Richard] by the departures”.

[45] Ms. Harris testified that some time after her arrest she attempted to phone Nancy. She was unsuccessful as the number she had for her was disconnected.

[46] Blair Curran pleaded guilty, was convicted and sentenced for importing cocaine in the four bottles in his own suitcase.

[47] The defence admitted that possession of 913 g. of cocaine amounted to a quantity which, beyond a reasonable doubt, was capable of being the purpose of trafficking. In addition, the admitted expert report stated:

Cocaine is normally sold at the street level in half grams, grams, eight balls, (an eighth of an ounce or 3.5 grams), quarter ounces, half ounces and ounces. Typically a user will normally purchase cocaine in half or gram weights.

Value - Street level prices for Cocaine in the Greater Toronto in 2009 are outlined below:

Gram $80.00 - $110.00

Ounce $1,000.00 - $1,400.00

Pound $18,000.00 - $22,000.00

Kilogram $30,000.00 - $35,000.00

The value of cocaine seized in this case sold in grams would be in the price range as follows:

913 grams x $80.00 = $73,040.00

913 grams x $100.00 = $91,300.00

913 grams x $110.00 = $100,430.00

[48] The four bottles removed from the accused’s luggage, each containing contents within a plastic membrane, had these characteristics:

Item

Volume

Total weight

Weight of cocaine inside

Pantene Pro-V Shampoo

750 ml.

864.5 g.

208 g.

Pantene Pro-V Conditioner

750 ml.

897.3g

226 g.

Natural Honey Hydro Cream

400 ml.

611 g.

181 g.

Kinesia Bath Gel

650 ml.

955.8 g.

3,328.6 g.

298 g.

913 g.

[49] The range of % weight of the cocaine by contents was between 41 and 43%. Officer Vantresca testified that he could not say whether the weight of the bottles was their manufactured weight or not.

POSITIONS OF THE PARTIES

The Crown

[50] Ms. Letman submitted that the actus reus of unlawful cocaine importation was established on the evidence with the key issue being circumstantial proof of the accused’s knowledge of the drug in the four containers in her luggage and her intention to import the cocaine.

[51] The Crown submitted that the accused’s version of events is simply not credible for a number of reasons including:

(1) the circumstances are suggestive of a trip arranged around cocaine importation – the accused had already been to Panama yet chose it as a “vacation” site though other Caribbean venues were available; no gift was purchased for the accused’s daughter while away, etc.

(2) the story of an innocent “hand off” from Curran made no sense – 4 cheap common health care products available anywhere would have been packable in Curran’s luggage and unlikely to affect his duty-free import level; no questions of Curran as to why she was to carry the items; no discussion of any arrangement in Panama of how Curran would retrieve the bottles; the bottles were heavy and the sides somewhat distended; no apparent concern on the part of the accused in receiving product from Curran weighing more than 7 pounds

(3) a confusing account of how items were to be returned to Nancy, a person assuming she exists who, like Curran, was not called to confirm the accused’s story

(4) the implausible evidence of the accused, despite having experienced air travel at the P.I.A. before, that she believed she could exit a secure area into the public area and then return to the secured area when she still had her E-311 card and had yet to clear customs

(5) the accused’s purported rush to get out of the airport to Richard, another witness who did not appear at trial, would effectively leave little on-site opportunity to return property to Curran or Nancy – what are the chances that the owner of cocaine valued at tens of thousands of dollars would permit such a commodity to exit the airport in the possession of an unknowing dupe?

(6) circumstances suggest that once the accused did not move freely from the primary officer location to the baggage carousel, but was roved by an I.C.E.T. officer who also highlighted her E-311 card, and knowing precisely what she was carrying, the accused panicked – she was on probation and likely to be subject to examination – she abandoned the suitcase and sought to get through customs with just her carry-on bag and with a plan to deflect blame to Curran if necessary

(7) the suspicious behaviour by the accused of ripping up small boarding pass stubs, concealing them and baggage claim tags in Curran’s name in her bra as opposed to a pocket or purse or disposal in a garbage container

(8) the accused’s demeanour when interviewed about her luggage – nervous, skin flushed and trembling and later crying and looking down

(9) the accused’s statements and lies tend to discount the believability of her version

(a) lies to the C.B.S.A. and the R.C.M.P. about Curran being her uncle

(b) shifting positions as to whether she knew what was upstairs at the terminal

(c) a lie to Const. Hawkins claiming that she bought her own $1400 plane ticket consistent with an attempt to hide that she was a drug courier whose airfare was paid by the importation overseer.

[52] The prosecution submitted that on the whole of the evidence the only reasonable inference was that Ms. Harris had actual knowledge of the cocaine paste in her suitcase or was wilfully blind to the presence of an illicit narcotic in her luggage.

The Defence

[53] On behalf of the accused, Ms. Rochman submitted that the prosecution failed to prove beyond a reasonable doubt that Ms. Harris knowingly brought cocaine into Canada. Knowing importation is not the only reasonable inference on the evidence. On the whole of the evidence, the court should have a doubt that the accused was set up by Blair Curran.

[54] Defence counsel submitted that:

(1) not only should the accused’s role as a prostitute not be used to infer involvement in drug activity but also it explains her level of trust of Curran and her lies including about him being her uncle and having paid for her own ticket

(2) C.B.S.A. Officer Vantresca’s evidence suggesting that a recipient of the 4 containers discovered in Ms. Harris’ suitcase would visually be aware of their physical oddity cannot be accepted – the photos fail to confirm the witness’ description, Vantresca’s evidence on the point became less certain in cross-examination, and the accused’s evidence on the point is confirmed by Const. Hawkins who recorded no physical abnormalities in the containers

(3) it was to Curran’s advantage to split up the 8 bottles so as not to potentially attract attention to the contents of his own luggage should it be searched by having so many containers

(4) Curran gave the containers to the accused as they were packing – no real opportunity for her to closely examine them or to reflect on whether to pack them

(5) given the relationship between Curran and the accused, the lack of firm detailed arrangement for a turn-back of his property is not suspicious

(6) it was not unusual for the baggage tags to be in Curran’s name as the couple were travelling together and Curran’s name was the one on the travel itinerary

(7) the circumstances of placing items in her bra were explained by the accused; the C.B.S.A. search officers’ testimony was deficient in identifying where the fragments came from; in the end, the evidence about Ex. #11 was “innocuous”

(8) Ms. Harris’ separation from her suitcase did not amount to abandonment on account of guilty knowledge - the accused explained the delay in the flight landing and in the baggage retrieval, her inability to use her cellphone in the secure area, the need to alert Richard that she was late but coming to meet for a pick-up, the unsuccessful attempt to get to an area for unrestricted cellphone use, her lack of any alert of a pending secondary inspection, and Curran’s agreement to collect her suitcase and his failure to do so

(9) C.B.S.A. Officer Vantresca’s evidence of the accused’s demeanour was highly subjective and he had no note of any trembling

(10) in response to Vantresca’s questions, Ms. Harris did not distance herself from having 2 pieces of luggage – she did not deny possession of a second piece of luggage and was cooperative in identifying her suitcase in the baggage hall

(11) the accused’s statement prior to search of her suitcase that she had the same bottles as Curran, given to her in Panama, was motivated not by acceptance of being caught but rather as a result of seeing Curran investigated for the containers in his luggage, his arrest and her realization that he may have given her contraband

(12) the accused presented as a truthful witness in testifying on her own behalf.

ANALYSIS

General Principles

[55] The court may believe all, none or some of a witness' evidence: R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; R. v. B.C., 2011 ONCA 604, at para 5; R. v. M.R., 2010 ONCA 285, at para. 6. Accordingly, a trier of fact is entitled to accept parts of a witness’ evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para. 44.

[56] However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.

[57] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp.85-87. However, as recognized in R. v. Chittick, 2004 NSCA 135, [2004] N.S.J. No. 432 (C.A.)(QL), at paras. 23-25:

It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.

An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[58] It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.), at p. 409. In other words, to use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527; R. v. H.(S.), [2001] O.J. No. 118 (C.A.)(QL), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 CanLII 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at p. 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.)(QL), at paras. 9-17.

[59] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 101 O.A.C. 193 (C.A.), at pp. 207-8; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.)(QL), at para. 1 (affirmed 1995 CanLII 95 (SCC), [1995] 2 S.C.R. 415). Where there are significant inconsistencies or contradictions within a principal Crown witness’ testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal to S.C.C. refused [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.)(QL), at paras. 8, 9; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4.

[60] Assessment of a witness’ credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom – this includes “non-verbal cues” as well as “body language, eyes, tone of voice, and the manner” of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57 (under reserve judgment, [2010] S.C.C.A. No. 494). However, a trier’s subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot suffice to found a finding of guilt: R. v. K.(A.) (1999), 1999 CanLII 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.

[61] In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn from that evidence.

[62] Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif (2011), 92 W.C.B. (2d) 259 (Alta. C.A.), at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70.

[63] While a detainee’s demeanour during an airport examination may constitute a piece of circumstantial evidence on the issue of guilty knowledge (see for example, R. v. Goulart-Nelson, [2004] O.J. No. 4010 (C.A.)(QL), at para. 14; R. v. Morales (2006), 2006 CanLII 19930 (ON CA), 81 O.R. (3d) 161 (C.A.), at paras. 12, 14), the court must have regard to the nature of the described appearance, the subjective nature of an officer’s assessment while respecting that he or she had the advantage of seeing the subject, and the reality that a person may display nervousness as a common and natural reaction to interaction with investigative authority : United States v. Kitchell; United States v. Shigemura, USCA 10th Cir. (unreported, Aug. 9, 2011), at p. 22.

[64] Guilty knowledge may, depending on the circumstances, be imputed to an accused who, having a reason to suspect that a certain state of affairs existed, deliberately declined to make the inquiries necessary to confirm that state of affairs preferring instead to remain ignorant of the true state of affairs – this assessment of an accused’s subjective state of mind is not the equivalent of asking what a reasonable person should have done: R. v. Smith, 2008 ONCA 101, at paras. 5-6; see also R. v. Callejas, 2011 ONCA 393, at para. 8 (“The doctrine of wilful blindness applies when suspicion is aroused in an accused’s mind but the accused purposely closes his mind in order to be able to deny knowledge”).

[65] In an unlawful drug importation prosecution, the Crown must prove knowledge, consent and control respecting the prohibited substance on the part of the accused. Possession may of course be inferred from the surrounding circumstances: R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.), at p. 488 (aff’d 1979 CanLII 31 (SCC), [1979] 2 S.C.R. 15); R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.), at para. 18 (aff’d 2006 SCC 26, [2006] 1 S.C.R. 940). Knowledge of the illicit drug’s presence and the intent to import must precede the narcotic’s entry to Canada: R. v. Rai, 2011 BCCA 341, at para. 23 (appl’n for leave to appeal filed [2011] S.C.C.A. No. 452).

Fact-Finding in This Case

[66] On the evidence in this short trial, it is beyond doubt that on March 16, 2009 Hollie Harris entered Canada with her suitcase containing cocaine concealed in four plastic bottles.

[67] While admitting that she placed the bottles in her luggage prior to leaving Panama, Ms. Harris denied knowledge that they contained an illicit narcotic – she was an innocent courier set up by her travelling companion who tricked her into transporting four of his eight bottles containing cocaine.

[68] In considering whether a reasonable doubt exists, the absence of evidence must as well be considered, for example, any testimony which might have come from Blair Curran.

[69] On the whole of the evidence, considered cumulatively, it has been established beyond a reasonable doubt, that the only rational inference that can be drawn is that Hollie Harris did know, prior to entering the country, that her luggage contained a prohibited substance.

[70] The accused’s evidence was unbelievable and failed to raise a reasonable doubt. No reasonable doubt exists considering the entirety of the evidence.

[71] The court’s conclusion as to the accused’s lack of credibility as a witness arises for a number of reasons including on account of inconsistencies in her testimony, and between testimony and out-of-court utterances, the implausibility of aspects of her story, established deception on some matters, and her manner of presentation at trial. Her prior criminal record for dishonesty is also relevant to her truthfulness.

[72] Included in the inconsistencies arising from Ms. Harris’ testimony and statements are the following:

(1) whether the trip to Panama was planned weeks or months before departing, whether the accused paid for her own ticket, and whether Curran was related to her or a friend of the family

(2) whether Curran travelled to Panama City with Nancy on one or two occasions

(3) whether any discussion occurred prior to arrival in Canada about the return of property to anyone whose property she was carrying

(4) whether the accused was aware that the departures level at the P.I.A. was upstairs from the baggage hall level

(5) whether or not the accused intended to go “upstairs” to make a phonecall at the airport.

[73] Whether or not the accused was being paid to entertain Curran for the week in Panama, the representations that a trip was planned by the couple months in advance with each paying their way is entirely consistent with a vacation story designed to mask a drug-run down and back from Panama.

[74] Aspects of the accused’s account of events are simply not plausible including:

(1) as to “Nancy”, the accused made no inquiry and had no knowledge of her prior connection to Curran, she was unaware of Nancy’s surname, she gave no thought to the effect of taking shoes and other items from Nancy on the maximum weight allowance for her luggage, and the vagaries of any plan to return items to Nancy – variously described as at the P.I.A. or by phoning her in Toronto

(2) as to innocent receipt of the four bottles from Curran, on her evidence, the accused asked no questions of him as to why he had the bottles or why he wanted her to carry them, she apparently did not find it curious that Curran would pack Pantene products and give her two to carry, she gave little or no thought as to why Curran could not himself carry such ordinary and cheap products without affecting his duty-free status or baggage weight allowance, she gave no thought as to the impact on her own luggage weight allowance of taking the bottles from Curran, and no real plan existed for Curran to retrieve the bottles containing cocaine of tens of thousands in dollars’ value

(3) the circumstances of the unclaimed suitcase from a person who had experience travelling through P.I.A. – ripped up boarding passes, as well as Curran baggage claim tags concealed in the accused’s bra as opposed to placement in her purse or checked bag or pocket or a garbage bin, the strained and at times confusing evidence relating to a belief she could leave and return to the secure area of Terminal 3.

[75] Bearing in mind where the burden of proof lies, I would nevertheless observe that the evidence is far from solid that a Nancy actually existed. She did not testify at trial and there was no documentary evidence of her existence, i.e. as a passenger included in the flight manifest. Beyond the representation that she was a woman in her forties from Toronto, no other description appears in the record.

[76] Ms. Harris visibly struggled as a witness in her attempt to describe the circumstances of how property was to be turned back to Curran and Nancy. Her evidence turned from speaking of assumptions about how that would occur to saying, only under vigorous cross-examination, that there was a discussion of sorts in Panama about that subject. The evidence emerged as strained and deceptive. And, as a matter of logic and common sense, a drug importer entrusting valuable contraband to an unknowing courier who he was not driving from the airport would certainly have arranged the turn-back of that cargo.

[77] While I am not satisfied that the four containers seized from the accused’s suitcase had physical abnormalities which were manifestly apparent, I am however satisfied that C.B.S.A. Officer Vantresca accurately described the accused’s observable nervousness during questioning. That evidence was uncontroverted. I find the passenger’s demeanour to be referable to concern, stress, and perhaps panic, of being discovered with the cocaine which she knew to be in her suitcase and not merely as a result of being detained and interviewed by a person in authority.

[78] As well, I am satisfied that Vantresca accurately recorded Ms. Harris’ responses to his questions in the customs secondary inspection. In that exchange, the accused was not initially completely forthcoming about having a checked suitcase and then claimed not to know where the suitcase was despite knowing, on her evidence, that Curran had not brought it from the baggage hall.

[79] The evidence supports the inference that once Ms. Harris was unable to avoid a customs secondary inspection, things began to unravel for her. It was probably at this point that she secreted the items in her bra. There is no doubt that she had baggage claim tags for Curran on her person. Pressed by Vantresca about checked luggage and escorted back to the baggage hall for retrieval of her suitcase, with a luggage search a certainty given the observed search and discovery in Curran’s bag, she then, unsolicited, spoke of the bottles in her suitcase adopting the status of a duped courier.

[80] The cocaine may well have originated with Curran in Panama. He may also have had the status of an overseer. Be that as it may, the evidence cogently supports the inference that both Curran and the accused knowingly imported cocaine into Canada. They hoped to clear customs but failed to do so without the intervention of a roving I.C.E.T. officer. That encounter resulted in a second highlighting of their E-311 cards and the obvious prospect for a luggage inspection. Knowing what her suitcase contained, on probation and not wanting to be caught, if the accused sought to exit the baggage area professing need to use her cellphone, it was not because she needed to call Richard but because she intended to abandon her suitcase and leave the airport.

[81] The only reasonable inference on the whole of the trial record is that the accused knowingly imported cocaine into Canada.

CONCLUSION

[82] The accused is guilty as charged.

HILL J.

Released: January 16, 2012

COURT FILE NO.: CRIMJ(F)245/10

DATE: 20120116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

HOLLIE HARRIS

Defendant

JUDGMENT

HILL J.

Released: January 16, 2012