COURT FILE NO.: CRIMJ(P)1223/11

DATE: 2012 10 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. Calsavara, for the Crown

• and -

MARGIE LISBEL COSTA SANTISTEBAN DE ROJAS

B. Crothers, for the Defence

Defendant

HEARD: May 30 to June 1,

June 28, August 13, 2012

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

[1] Margie De Rojas pled not guilty to charges of unlawfully possessing counterfeit money and the unlawful introduction of that money into Canada.

[2] On her return to Canada from Peru on December 21, 2010, the accused was found to be in possession of a suitcase in which was concealed a significant quantity of counterfeit United States’ currency.

FACTUAL CIRCUMSTANCES

Background of Accused

[3] The 32-year-old accused was born in Lima, Peru. She was married in Peru. A daughter was born there. The accused’s mother, sister and niece continue to reside in Lima. She came to Canada in 2001 and is a permanent resident of Canada. She has no prior criminal record or dealings with the police. Two more children were born in Canada. The accused stayed at home raising the children. Her husband sometimes worked. Ms. De Rojas and her husband separated in 2008. She had custody of the children. He has never paid child support.

[4] In 2010, the accused received monthly Ontario Works payments of about $1,000 and Canada Child Tax Benefits of about $1200. As well, after separation from her husband, the accused worked about three or four days a month for low wages for an agency assigning temporary jobs. For some time, the accused has been in an unpaid apprenticeship training to be a licensed hair stylist.

The Accused’s Trips to Peru

[5] According to the accused, she has remained in close contact with her relatives in Peru maintaining daily contact by phone or MSN by internet. She has frequently travelled to Peru. After some years of not travelling home, in 2008 the accused went to Peru on two occasions with the trips paid for by her husband, once on her own for her cousin’s wedding and then with her husband and children.

[6] Following her separation later in 2008, the accused began an internet relationship in 2009 with an individual whose name she spelled at trial as Eduardo Giovanni Huamar Grados (Giovanni). He resided in Lima. She had met him previously as he lived in her family’s neighbourhood nearby to her mother’s house. In 2009, the accused travelled to Lima on one occasion. She purchased the ticket with her own funds from Carlin Travel, the agency her husband had used for a long time. Ms. De Rojas had no credit card of her own. She paid cash. In Lima, she stayed with her mother and sister during the day. That is where her suitcases and clothes were. She spent nights at the home of Giovanni, her boyfriend. The accused testified that Giovanni has never been to Canada.

[7] In 2010, the accused travelled to Lima on four occasions. The trips were partially funded by the accused using part of the student living expenses component of her OSAP loan. The first trip was in February for 15 days to see her mother and her boyfriend. The second was in July at a time when she had a medical leave from her course at Marca College which began in April. The accused had a broken foot bone. With her crutches, she travelled alone to Lima for a 20-day period to see her mother, her boyfriend, and her children who had left Canada in June for a three-month summer vacation stay in Lima with her estranged husband. The cost of the children’s airfare was split between her and her husband.

[8] The accused testified that her husband was to return the children to Canada on or before September 3, 2010 so that they could commence their school term. Prior to that, they had an argument relating to his loss of some documents relating to their oldest daughter. Ms. De Rojas travelled to Lima on September 3. There was about a one-month delay in returning to Canada occasioned by the need to replace the lost documents to permit her eldest daughter’s re-admission to Canada. The delay also cost her continuing enrolment at Marca College.

[9] The accused’s fourth trip to Lima was from December 3 to 21, 2010 again booked through Carlin Travel on Wilson Avenue in Toronto. On the accused’s in-chief evidence, she skipped paying a month’s rent to help fund the trip which she paid for herself. Ms. De Rojas maintained that she took over $1800 cash to the travel agency on December 1, 2010 once the direct deposit by the government to her bank account was received on that date. The cost of the accused’s airfare according to a Carlin Travel invoice found in her possession on arrest was $1,856.00. The invoice, addressed to Mr. Giovanni Huamar at the accused’s residential address in Mississauga, was dated November 29, 2010 and recorded “full payment received on 29 Nov 10”.

[10] In cross-examination, Ms. De Rojas testified that Giovanni had never been to Canada. On her evidence, she had his name put on the invoice to replace her husband’s name at the travel agency. The accused again maintained that she paid cash on December 1 at the travel agency for the tickets for her and her son using government subsidy monies deposited to her bank account that date. Crown counsel cross-examined the accused as to why she would carry over $1800 in cash to buy airline tickets as opposed to writing a cheque or using her CIBC debit card for a point-of-purchase transaction. When Ms. De Rojas answered that she did not know how to write a cheque, despite acknowledging possession of a bank account cheque book, she was cross-examined upon bank records showing two cheques written on September 30, 2012, for a bank account to which she alone had access. The accused maintained that she had no recall of writing those cheques. The accused was unable to answer why she did not use her debit card beyond saying that she and her husband had always paid cash. When asked by Ms. Calsavara why she did not purchase the tickets through an internet transaction, the accused replied that she had no idea how to do that. Confronted with her bank records showing a September 16, 2010 Internet Banking email transfer from her CIBC account to Carlin Travel, the accused conceded that, with help, she had previously used this method of payment.

[11] When confronted in cross-examination with the Carlin Travel Agency invoice showing full payment received on November 29, 2010 and the lack of funds in her bank accounts on that date to finance the tickets purchase, Ms. De Rojas gave this evidence:

Q. Where is the cash withdrawal that reflects this $1800 cash?

A. … I received one thousand from one place and another thousand from another place.

Q. Okay, show me the one thousand on this account [Exhibit #24].

A. That I made a withdrawal of?

Q. Well you told the court you had made the withdrawal and that once the money came in and you went to Carlin Travel and if there was only one thousand from that account please indicate which withdrawal that was.

After a lengthy pause during which she examined her bank statement, introduced by the defence, the accused stated, “I don’t really understand this, I don’t know where are the withdrawals are at the end … that is reflected here.” The questioning continued unsuccessfully in an effort to have Ms. De Rojas identify the relevant withdrawal relating to the tickets. Under this persistent cross-examination, the accused, for the first time, represented that some of the funding originated from a game known as Junda:

… also with a person from Peru we somehow collect the amount of $200 and we do that every single month and we have a total of ten people doing that and we do that every single month until each of us would pick a number, for example, if one of those people ended up with the number “1”, the rest of the people already contributed each one of their $200 and then we would be able to collect a total of $2,000 and then that person that ended up having the number “1” that person would be given that amount of $2,000, and the following month, we would make a draw in the same manner.

Ms. De Rojas testified that being a participant in this game, she in part paid for the airline tickets with money earned in the game. Ms. De Rojas continued to deny that someone else purchased the tickets.

[12] During the December 2010 trip, Ms. De Rojas’ two older children remained in Canada with her estranged husband who was again residing here. She travelled with her 5-year-old son. At this point, the accused was pregnant with her and Giovanni’s child. The accused travelled with four suitcases which she described as soft and dark-coloured and more like bags without a shape. The bags contained her clothes and her son’s clothes and small items to give her mother and sister. According to the accused, on travelling to Peru she was not in possession of the Exhibit #2 suitcase later found to conceal the counterfeit money. She took the bags to her mother’s home. Again, she stayed with her mother while sleeping at Giovanni’s home. Her son stayed with her mother.

The Accused’s Financial Situation

[13] Exhibit #24 is a chequing account computer printout relating to account #87-94499, Ms. De Rojas’ CIBC account from July 15 to December 31, 2010. There are about 150 transactions recorded, only 11 of which involve deposits or credits. Six of those, and the only significant ones, were direct deposits on the first of each month from PAY PEEL CMSM (July 30, Sept. 1, Oct. 1, Nov. 1, Dec. 1, and Dec. 31). With the exception of the October 1^st^ date, the accused’s funds on account each month were exhausted the day before the government subsidy was deposited (July 29 ($-1.59), August 31 ($-1.21), Oct. 31 ($-242.41), Nov. 30 ($-3.76), and Dec. 30 ($2.25)). On September 13, 2010, $9,156 was deposited in the accused’s account as a “Credit Memo On Student Loan”. A month later, on October 15, the balance was $910.09.

[14] On the basis of an account summary seized from the accused at the time of her arrest, in the approximate one-month period of September 18 to October 16, 2010, there was only a single significant credit/deposit to the accused’s chequing account at Scotiabank (Acc. #13342 00669 23). When the accused received a Child Tax Benefit of $1,194 on September 20, the account balance was $-2.36. By October 16, the balance was $2.25.

[15] The accused testified early in cross-examination that she had a CIBC debit card. After testifying in-chief that she had no credit card, in cross-examination Ms. De Rojas testified to paying off her VISA card through money transfers at Money Mart. While the accused initially testified that she was unaware how to undertake an electronic transfer of funds, cross-examination established that such a transfer had been made from her bank account.

[16] The accused agreed in her testimony, that by the time of her December departure for vacation in Lima, she was receiving social living assistance (Ontario Works) and child tax credit monies. She had virtually no money in the bank. She was behind in her rent. She had been put out of her school programme. She was over $24,000 in debt on a student loan and had received correspondence from the government giving notice that repayment from her bank account would commence in the spring of 2011. She was “hardly working” and was receiving no child support from her three children’s father.

The Martinez Connection

[17] The accused testified that she first met Oscar Flores Martinez about four years prior to December 2010. She met him at a birthday party hosted by her uncle in Canada. She then saw him socially at festive occasions and parties when a group of Peruvian nationals would go out together to nightclubs. She once saw him at a flea market. On another occasion, as she drove on Highway #10, she spoke to Martinez when she spotted him walking with one of her cousins. The accused testified that she believed Martinez worked in the construction field. While they had mutual friends, the two did not ever go out together. They had exchanged phone numbers with the accused providing her Canadian number and her mother’s cellphone number in Lima. She never went to Martinez’ Mississauga residence. She did not know his address or where he was employed. At points, they discussed the subject of travel back to Peru. On the accused’s evidence, Martinez would loosely suggest that they might at some point see each other in Lima and go out.

[18] Ms. De Rojas testified that prior to December 2010 she last saw and spoke to Martinez on September 1, 2010 on Highway #10 when he was in the company of her cousin. On the accused’s evidence, on a date in December she could not recall, Martinez called her in Lima on her mother’s cellphone. The accused was surprised as she was not expecting his call. To her knowledge, Martinez did not know of her travel plans. It may have been about five days prior to her December 21^st^ return to Canada. Her mother took a message as she was not home. The next day, her mother passed on the message that “Oscar”, who said he was a “friend” of hers, had called. He left no return number saying he would call again.

[19] The accused testified that the same day she received the message from her mother, Oscar Martinez phoned at about 3:00 p.m. After small talk, on the accused’s evidence, she asked why he was calling receiving the response that he had just learned that she was in Peru. He then suggested that maybe they could go out and added that he needed her to do a favour for him. The accused informed the court that when she asked what the favour was, Martinez responded that he needed to send some medicine back to Canada to his father. On Ms. De Rojas’ evidence, she had met Martinez’ father at her uncle’s home in Canada. The accused testified that when she asked why he was not taking the medicine back himself Martinez stated that his father had requested the medicine and he was not yet prepared to travel back to Canada.

[20] In her evidence, the accused gave this further account. Martinez stated that if she was prepared to do the favour for him she would have to go to his home as she was too far away and in a bad area of Lima. Martinez suggested they meet at Plaza Grau which was mid-way between their respective locations. In her in-chief evidence, the accused said both that she replied that there would be no problem doing that, and, that she would first have to speak to her boyfriend. An arrangement was made to meet about two hours later on the basis that Martinez would pay her taxi fare and be at the Plaza by the time she arrived.

[21] The accused testified that she told Giovanni that the call was from a friend from Canada who was in Peru. She related to her boyfriend that the friend wanted her to do him the favour of taking some medication back to Canada. Giovanni became upset and angry and left her mother’s house to go play soccer.

[22] Ms. De Rojas testified in-chief that she had never before taken anything back to Canada for someone else. According to the accused, her mother, who heard part of her phone call with Martinez, cautioned her to think about what she was doing in terms of just accepting something from another person as she could get into trouble and lose her children. She told her mother not to worry.

[23] On the accused’s evidence, she took a 30-minute taxi ride to the Plaza. Martinez was not there. She paid for the taxi herself. Martinez arrived about fifteen minutes later. They spoke for about thirty minutes. In their discussion, Martinez showed her some medicine in an InkaFarma bag. To her, it looked like normal over-the-counter medication, different types of pills, available from any pharmacy. The accused also testified that Peruvians “always” send medicine to Canada on the belief that the medicine from Peru is more effective than Canadian medicine. The accused described some of the medicine as packaged with lead, like prescription medication. She saw orange pills and some that were blue and white. There were no loose pills. Although she did not carefully read the packaging, she knew what the pills were used for. In her in-chief evidence, the accused stated:

A. I grabbed the bag and I looked … I did not really realize if there were any loose pills or not.

Q. And … what did Oscar do with this medicine bag?

A. He gave that to me.

Q. And did you accept it?

A. Yes, I said to him yes I’m going to take it.

[24] In her in-chief evidence on May 30, 2012, the accused was questioned as to the circumstances of acquiring the Exhibit #2 suitcase:

Q. At some point during your trip in December, you came into possession of this black suitcase?

A. Yes.

Q. Do you recall the events leading up to you getting this black suitcase?

A. I can’t recall.

Q. Do you remember approximately what day you received this suitcase?

A. It was in December.

Q. How long had you been in Peru until you received this suitcase?

A. About ten days.

Q. Who gave you this suitcase?

A. A friend of mine.

Q. What is your friend’s name?

A. Oscar Flores Martinez.

[25] On May 31, 2012, in a continuation of her in-chief testimony, the accused provided a detailed account of how she had received the suitcase. In cross-examination, the accused explained her different answers on the basis that she was remembering the details in her second day of giving evidence – she was very nervous the day before. She testified that when she asked Martinez why he had her come all the way to the Plaza for the medicine, he said that he also wanted to talk to her. When she asked why, he said he would be up front with her – he wanted to know if she could take some money to Canada for him. Martinez said it was $50,000 U.S. which was his money. On her evidence, the accused asked how she could bring the money with her. When Martinez said it would be no problem, she told him that it would be a problem for her if discovered carrying “all that money”. The accused testified that she asked Martinez how he could have so much money receiving the answer, “I do some business here, I work also”. She then asked whether he was involved in shady business like selling drugs. Martinez said “No”. She repeated that she wanted no problems.

[26] On the accused’s evidence, she persisted by asking how he could have acquired that amount of money if he was not in the drug business. The accused informed the court that Martinez wanted to know why she was asking so many questions. He then said he would pay her and that he knew her financial situation was not the best. The accused testified that she again told Martinez she did not want any problems. Asked in her evidence in-chief her impression of the origin of the money she stated that she thought that, if it was not drug money, he may have stolen the money. Martinez continued to say that, if she took the money, things would be fine. When Martinez described a $5,000 fee for her she was surprised and said, “You’ve got to be kidding”. To her, that was a lot of money. According to the accused, Martinez said that he would give her $1,000 in Peru and she would receive the rest back in Canada.

[27] Ms. De Rojas further testified that she told Martinez that it was dangerous to take $50,000 because to her knowledge when a declaration statement is made entering Canada only about $10,000 can be declared. She continued to ask if he was in drugs or had stolen the money. Martinez replied in the negative. When she raised a concern about her son being with her on her return and her children being unattended if something happened to her, on the accused’s evidence, Martinez responded that there would be no problems – at most, “a fine”.

[28] The accused testified that she wanted to think more about the matter although she was starting to be persuaded. She asked for Martinez’ phone number. He replied that his cellphone was broken and that he was staying with his girlfriend. He said he would phone her. She told him to call her that night. She obtained round-trip taxi fare from Martinez and returned to her mother’s home.

[29] The accused informed the court that Martinez called that evening. Her mother answered the phone and passed the phone to her. Martinez asked for her answer. She said “yes”. She had thought the matter over and would take the money. Martinez said that there would be no problems and not to worry – “you know me and where I come from”. Martinez said he would “do a good job” so she would have no problems. They arranged to meet the next day at the same Plaza between 2:30 and 3:00 p.m. for him to transfer the money and “her cut”. The accused recalled telling Martinez that she would have to find a way of getting out of her mother’s house to meet him. Martinez said he would call her on her cellphone. In her in-chief evidence, the accused maintained that she did not tell her mother or her boyfriend the specifics of what she was involved in.

[30] Ms. De Rojas testified that when her boyfriend questioned her about the call, she told him that she was to do a favour for Martinez by bringing medicine to Canada. Giovanni said that she should not again speak to Martinez or take anything for him. She agreed.

[31] According to the accused, the next day she falsely informed others at her mother’s house that she was going to the home of her friend, Brenda, with whom she had grown up. This was one or two days before she departed for Canada. She then travelled to the Plaza by taxi arriving at about 3:15 p.m. Martinez was there waiting. Martinez asked about her lateness. He seemed stern and a bit rushed. On the accused’s evidence, Martinez handed her a piece of luggage (the Exhibit #2 suitcase) telling her to take it. When she lifted the suitcase, it seemed like a normal piece of luggage. She examined the suitcase including opening it. There was nothing inside. She asked, “Are you sure there is money here and not drugs?” Martinez replied that it was not drugs and that it was his money – “This is it, it’s all fixed. You’ll have no problems because at the airports, they are always looking for drugs”. The accused testified that when she asked whether Martinez was sure it was money and not drugs, he said it was his money not drugs. She took custody of the suitcase. In her in-chief testimony, the accused gave this evidence:

Q. Did he give you anything?

A. The medicines.

Q. And were there any instructions about these medicines?

A. No, except to tell me that they were going to go inside the luggage and that the person who picked that up then would be in charge.

[32] On the accused’s evidence, she was not given the name or any description of who was to meet her at the Toronto airport. Martinez told her to go through immigration and, when she stepped out of the airport, someone who had tracked her would approach her, tap her on the shoulder, and say he was there on Martinez’ behalf.

[33] Ms. De Rojas testified that Martinez took from his pocket ten folded-over $100 bills and handed the money to her. He said she would receive the rest from his contact at the airport once she arrived in Canada. Before they separated, Martinez gave her the medicines she had seen the day before telling her to place them in her luggage. He asked what time she was flying out and who was taking her to the airport. She replied noon or 1:00 p.m. and that her family would accompany her to the airport. Martinez cautioned her not to try to go anywhere with his money. On the accused’s evidence, Martinez said, “Okay, I’ll keep an eye on you”. When she then told him there was no reason to talk to her in that way, he said, “This is my money, that’s why I tell you these things”. Martinez said he would call her at the airport but not how he would accomplish that.

[34] In cross-examination, Ms. De Rojas gave this evidence:

Q. And you’re facing, obviously, in the circumstances, a lot of financial pressure, is that right?

A. Yes.

Q. And so much that you were willing to do something that you thought was illegal?

A. Yes.

Q. … you thought the money could have been drug money or it could be real, legitimate money or it could even be fake money, right?

A. I thought that it could have been either stolen money or money … the drug business.

Q. Or fake money?

A. No.

Q. And you had no reason to believe that this Oscar individual had … was a man of great financial means? You didn’t think he was wealthy?

A. No.

Q. And that’s why you were suspicious about the money?

A. Yes.

Q. And of all the possibilities that were running through your head, one of them had to have been that maybe the money wasn’t real?

A. No, that did not run through my mind.

Q. But you wanted to get to the bottom of it and to know where this money came from and what it was for?

A. Yes, and I was asking him.

Q. And you weren’t getting satisfactory answers, correct?

A. Yes, but I also thought about my cut.

Q. You weren’t satisfied with the answers … you didn’t satisfy your suspicions?

A. No.

Q. So you agree with me you didn’t satisfy your suspicions, right?

A. Yes.

Q. But you just carried on because you were thinking about your cut?

A. Yes, because I have my own debts to pay.

Q. Even though you had every reason to remain suspicious?

A. You mean my suspicions right?

Q. Right, about this money in the suitcase.

A. Because I thought that was stolen money.

Q. Right, but that wasn’t the only possibility?

A. Nothing else occurred to me except that it could have been the product of the drug business or that he stole all this money.

Q. And you stopped even considering the possibilities because you just wanted to get your cut?

A. Yes.

Q. And you stopped asking Oscar any questions about it?

A. Yes.

Q. … you felt the money could be drug money, right?

A. Yes, it could be from drug money or that he had stolen the money.

Q. In some way, you believed that this was money that was illegally obtained…?

A. Yes.

Q. And you asked Oscar about that because you were worried about that?

A. Yes, because that was the amount he wanted me to bring all the way.

Q. But you weren’t satisfied with his answers, right?

A. No, I was not satisfied with his answers, however since he told me that I was going to make some money for myself …

Q. If he had told you, look this is counterfeit money, would you still have done it?

A. No, never.

Q. So, you would willingly take drug money across the border but not counterfeit money, is that your evidence?

A. No, no.

Q. But you’d take drug money across the border?

A. The thing is I didn’t know where the money is coming from because he didn’t tell me any definite answer.

Q. But you remained suspicious that it was drug money, right?

A. I told you that I suspected that it could be drug money, however, in my mind I was always thinking that he had stolen that money.

Q. And despite that risk though that it could have been drug money, you still agreed to take it across the border …?

A. Yes.

Q. You thought this money was illegally obtained somehow, drugs, stolen money, right?

A. Yes.

[35] The accused testified that when she returned to her mother’s home, no one was there. She placed the medicine in one of her bags and concealed the suitcase in her room. At trial, Ms. De Rojas testified that no one in her family saw the suitcase and that her mother gave her no warnings related to the suitcase. Under cross-examination, the accused acknowledged that she had told the R.C.M.P. that the suitcase was discussed with her mother:

ACCUSED: I went home, I check like oh no this is fine, because my mommy didn’t like it, my mommy say “no why you took to Canada, why you bring, that’s no fair, that’s no good.” And I say “why that’s my friend.” My mom, mad at me. She because she don’t like to somebody give me something to bring here, she didn’t like it.

OFFICER: Mothers know best.

ACCUSED: I know.

[36] On the accused’s evidence, she packed on her own on December 20. She first packed one of the bags she brought to Peru. The medicine was in this separate piece of her own luggage. She then placed clothes into the Exhibit #2 suitcase. Her boyfriend and family travelled with her to the airport by taxi. Of the $1,000 received from Martinez, she gave her mother some of the money, and some was used for shopping.

[37] The accused testified that just after she arrived at the Lima airport, Martinez called her mother’s cellphone and said he knew she “was there now”, as he had seen her arrive. The accused answered the phone. Martinez said that she should not go anywhere else with his money, that he knew where her family lived in Peru and where she lived in Canada. She felt scared. When she replied that he did not have to tell her this, Martinez said “Fine” and wished her a good trip adding that someone would be “in charge” when she arrived in Canada.

[38] In cross-examination, Ms. De Rojas agreed that she did not know the identity of the person who was to meet her at the airport in Toronto. She had no way of getting in touch with him. That person could not phone her as she had no cellphone in her possession. The accused gave this evidence:

Q. You were prepared to go along with this plan and follow this man who tapped you on your shoulder … to go with this man, this man who could be involved in illegal activities, along with your five-year-old son?

A. No, I wasn’t going to go anywhere. I was told that he was going to tap my shoulder and that he was going to say he was coming on behalf of Oscar.

Q. And then you’d go with him to give him the suitcase, right?

A. I was not supposed to go with him. I only had to give him the suitcase.

Q. Well all your clothes are in this suitcase?

A. Yes, but right after that he has to give my belongings to me…

Q. And this medicine you say he was also to be in charge of was in another luggage altogether according to you?

A. Yes.

The accused testified that she really had no instructions as to who she should give the medicine to.

The December 2010 Arrest

[39] On December 21, 2010, shortly after 7:00 a.m., the accused deplaned at the Pearson International Airport (P.I.A.) Terminal 1 from Air Canada flight #081 originating in Lima, Peru. She was in the company of her five-year-old son.

[40] Andrew Kogut of the Canada Border Services Agency (C.B.S.A.) was stationed at a primary inspection/examination counter when the accused sought to be re-admitted to Canada at about 8:05 a.m. Kogut made his notes relating to his dealings with the accused about five hours later. According to the witness, in the 30 to 35 seconds he dealt with the accused, she would not look at him as he spoke, she spoke quickly and appeared nervous. As this seemed “a bit unusual”, he coded her E-311 Customs Declaration Card to ensure that she would be referred to a secondary inspection.

[41] C.B.S.A. Officer Nadya Joukova was in the terminal baggage hall randomly interviewing passengers from AC flight #081. She first observed the accused at 8:23 a.m. Ms. De Rojas had picked up her checked luggage. As the accused and her child approached the officer’s position, she asked to see the accused’s travel documents. The accused complied with the request producing the documents including her E-311 Declaration, a Peruvian passport with a Canadian permanent resident visa tucked inside, as well as her son’s Canadian passport. In her in-chief testimony, the accused stated that she told no lies to the C.B.S.A. officers. Officer Joukova’s notes of their conversation, made over six hours later, record this exchange:

Q. Where are you coming from?

A. Peru.

Q. What’s the reason for your travel?

A. To see family.

Q. Where’s the father of the child?

[Subject presented a consent letter from the father.]

Q. What do you do for work?

A. Cleaning.

Q. How are you getting home today?

A. My friend is picking me up.

[42] According to Officer Joukova, Ms. De Rojas’ bottom lip was trembling as she answered questions. Under cross-examination, the accused agreed that she lied about a friend coming to pick her up. With that observation and the answer received to her questions, Officer Joukova marked the accused’s E-311 Declaration Card in such a way that she would not be permitted to leave but would be detoured to a secondary examination by the officer.

[43] At about 8:27 a.m., in the secondary inspection area, Officer Joukova called the accused forward to her counter for a luggage examination. In the officer’s notes, this exchange is recorded:

Q. Are these your bags?

A. Yes.

Q. Did you pack them yourself?

A. Yes.

Q. Are you aware of the contents inside these bags?

A. Yes.

Q. Is there anything sharp or dangerous inside these bags?

A. No.

Q. Did you leave Canada with these same bags?

A. Yes.

[44] The accused’s first checked bag was a soft-sided collapsible receptacle containing clothes. When asked where she purchased the trip tickets, the accused responded that they were bought on December 1, 2010 at a travel agency in Toronto. Asked about the cost, the accused stated that she paid $1,800 in Canadian cash. When the officer asked why the accused used a travel agency such a distance from where she lived in Mississauga, the accused replied that that was the one she used all the time.

[45] In Officer Joukova’s view, the second piece of checked luggage, a suitcase (Exhibit #2), looked visibly new. At this point, as the officer was about to begin her examination of the suitcase, on the officer’s evidence, the accused’s lip was trembling, she was quiet, and looking around but not paying attention to her child’s movements. The suitcase was emptied onto the counter. Asked if she recalled the contents, the officer said she could not recall, perhaps “regular clothing” and personal effects.

[46] The officer was unable to say whether or not Exhibit #25 was in the suitcase – a plastic bag containing assorted medicines produced by the defence at trial. She was also unable to say whether there were smaller bags or containers in the suitcase. The suitcase contents were not inventoried or photographed. R.C.M.P. Constable Close, who subsequently took custody of items seized by the C.B.S.A., briefly looked into a garbage bag into which the suitcase contents had been put, and observed female adult clothing. He did not see everything in the bag.

[47] At the counter, with Officer Joukova forming the opinion that the bottom of the suitcase just above the wheels was thicker than she believed it should be, she asked the accused what was at the bottom of the luggage. Ms. De Rojas replied that “they gave her the suitcase”. On the officer’s evidence, the abnormal thickness would not be observable without the physical test she performed.

[48] On moving the suitcase from the examination counter to the x-ray machine, Officer Joukova formed the opinion that the empty suitcase was heavier than she considered, in her experience, a receptacle of that sort should ordinarily be. However, she made no note of this. The x-ray showed rows of packets concealed in the bottom and sides of the suitcase. Believing drugs were hidden in the receptacle, the officer arrested the accused for smuggling cocaine into Canada. The bottom of the suitcase was smooth to the touch. The sides were less smooth as the officer felt small bulges. The accused was subsequently arrested. She only had six dollars on her person – one $5 US bill and one $1 US bill.

[49] The suitcase was dismantled. Concealed in the bottom and sides of the receptacle were 37 bundles or packets, each containing counterfeit $100 U.S. bills. Each bill weighed about one gram. There were 1990 bank notes in all for a total of $199,000. The officer considered the weight of Exhibit #22, an exhibit box with the currency seizure inside, to be “quite heavy”. The seized counterfeit bills were not weighed. The packets in the bottom were thicker than those in the sides. Between the suitcase internal zip-out lining and the receptacle’s exterior, the packets were wrapped in newspaper or magazine and carbon paper and black fabric. The packets appeared to have been glued in place. According to Officer Joukova, the concealing of the evenly spaced packets was well done. In her view, the money was “remarkably well hidden”. There were no apparent alterations to the suitcase. It was the x-ray which revealed the presence of the contraband.

[50] Ms. De Rojas testified that she was frightened when dealing with the C.B.S.A. and the R.C.M.P. at the P.I.A. She understood some of what was said to her. She was okay dealing with the police on “basic type questions”. She was frightened and didn’t know what to say. The accused agreed that she spoke to her own Spanish-speaking lawyer, Antonio Guerrero, prior to the R.C.M.P. interview and again during the interview.

[51] Ms. De Rojas testified in-chief that when taken into custody at the P.I.A., she believed she had been arrested for bringing more money into Canada than she was allowed to bring into the country. The accused agreed that she spoke to her lawyer a total of three times, that the police told her she could have an interpreter if she wished, and that she could phone her lawyer at any point. She understood that if she became confused, she could access an interpreter or call her lawyer.

[52] Near the outset of the videotaped interview, one of the officers said that he was “going to explain again” the charge of “importing and possessing counterfeit” currency, “that is money that is not legitimate money”. In her statement, the accused signified that she understood. At trial, Ms. De Rojas testified that she had not understood what “counterfeit” meant. The following exchange occurred in the interview:

OFFICER: So the reason we wanted to sit down and talk with you for a minute and are hoping you can help us out a little bit. Uhm, because the money that was in your suitcase was counterfeit money, did you know that? Did you think you were bringing real money or counterfeit money to Canada?

ACCUSED: I didn’t know.

Asked about this response, the accused testified that she had not entirely understood the question – she meant to convey that she had no idea she had brought fake money to Canada. On her evidence, she was nervous in the interview and feared reprisals upon her family.

[53] The accused agreed in cross-examination that she told the police that a man she met in the GTA named “Edwin” arranged for her to receive the Exhibit #2 suitcase from a stranger at the Plaza Grau in Lima. In the interview, the accused maintained that she agreed to bring some medicine from Peru but had no knowledge of any money in the suitcase.

[54] Officer Joukova testified that she had no difficulty understanding the accused, who spoke English with an accent. The accused was responsive to what she was saying and at no point professed difficulty understanding. While the accused did not request an interpreter, she did request to be able to speak to a Spanish-speaking lawyer whose business card she had in her possession. The accused was in R.C.M.P. Constable Close’s custody shortly after 1:00 p.m. on December 21, 2010 during fingerprinting and photographing. Over about 45 minutes, on the officer’s evidence, he had general conversation in English with the accused. In his view, they had no difficulty understanding one another.

[55] Constable Close testified that he observed part of the nearly two-hour videotaped interview of the accused by R.C.M.P. Corporal Giblin and R.C.M.P. Constable Reid. The accused agreed in the interview to be questioned in English and, in Close’s view, no difficulties could be detected in communication.

[56] In her in-chief evidence given in Spanish through a court interpreter, Ms. De Rojas self-assessed her English language fluency as “fairly good” but not one hundred percent. The accused testified that for the months she was at Marca College in 2010 she attended classes daily for eight-hour days. There was oral and written instruction all in English. In her testimony, Ms. De Rojas agreed that when asked by R.C.M.P. interviewers on December 21, 2010 whether she was content to speak to them in English, and knowing she could ask for an interpreter, she was satisfied to converse in English.

In-Trial Investigation Relating to Alicia Flores and Oscar Flores Martinez

[57] The accused testified that she first met Oscar Martinez about four years prior to December 2010 when he was about 18 years of age. He was from Peru. He had brown skin, was fairly husky and estimated to be about 167 cm. tall (5’6”).

[58] Ms. De Rojas informed the court that Alicia Flores had been a friend for a number of years. They visited one another’s homes many times. According to the accused, Ms. Flores was unmarried. She might be residing with her boyfriend, Carlos. Ms. Flores had a brother named Jason.

[59] In her testimony, the accused agreed that Ms. Flores completed an Affidavit of Justification By A Surety sworn on January 13, 2011, the day the accused was admitted to bail. In this document, Ms. Flores (D.O.B. May 25, 1985) identified her current home address for the prior year as 120 Dundas Street East, apartment #1213, in Mississauga and her former address as 2235 Hurontario Street, apartment #1116, also in Mississauga.

[60] The accused testified that Oscar Flores Martinez was unrelated to Alicia Flores. Further police investigation during the trial, resulting in an Agreed Statement of Facts (Exhibit #26) admitted for the truth of its contents, after the accused testified about Oscar Flores Martinez, revealed that the name ‘Oscar Flores Martinez’ does not appear in certain standard government data bases including CPIC and those of the C.B.S.A. However, Peel Regional Police Service (P.R.P.S.) reports identify such a person as the target of a US counterfeit money investigation in 2010. On October 7, 2010, a male person passed one counterfeit $100 US bill at Denny’s Car Wash at 3436 Mavis Road in Mississauga. An employee of the car wash saw a document fall out of the suspect’s vehicle before he drove away. The document was a Vigo Money Transfer receipt recording an October 7 transfer of $100 US from Oscar Flores Martinez, resident at 2235 Hurontario Street, apartment #1116, in Mississauga, to Flore De Maria Manco in Chile, Peru. The suspect was described to police as a brown skinned male, with a husky build, about 23 years of age and 5’8” in height.

[61] When a P.R.P.S. investigator attended the Hurontario Street address on May 31, 2012, property management informed him that the occupants of apartment #1116, a male and a female, had recently moved. A check with Immigration Canada authorities disclosed that an ‘Oscar Miguel Martinez Flores’ (D.O.B. February 23, 1987) was listed as a landed immigrant from Peru in November 2006. The C.B.S.A. had no record of documented travel by ‘Oscar Flores Martinez’ or ‘Oscar Miguel Martinez Flores’.

POSITIONS OF THE PARTIES

The Crown

[62] On behalf of the prosecution, Ms. Calsavara submitted that the accused was not an innocent dupe. It is said that, on the whole of the evidence, it is proven that Ms. De Rojas either had full knowledge that she was importing counterfeit U.S. currency into Canada, or alternatively, was wilfully blind to that possibility. As to the latter basis of liability, it was submitted that guilty knowledge is properly imputed because, knowing there was a risk the money she agreed to carry could be counterfeit, the accused failed to make sufficient inquiries to assuage that suspicion. The prosecution agreed that to found culpability on wilful blindness the Crown must prove that the accused held suspicion as to the counterfeit nature of the money, not merely suspicion that it was “dirty” money in some way.

[63] Crown counsel submitted that the accused’s story of a chance contact by Martinez in Peru is implausible. Ms. De Rojas had met him socially in Canada. They had no one-to-one contact or outings. This was hardly a close friendship. It is said that it defies common sense that there would be an out-of-the-blue phonecall to the accused from Martinez in Lima and an arrangement limited to taking back to Canada medicine and $50,000. It is illogical to believe that the accused would upset her boyfriend and act against the advice of her mother without being knowledgeable about the true contents of the Exhibit #2 suitcase.

[64] It was further argued that no overseer would entrust to an unknowing courier such a significant quantity of counterfeit money. Putting nearly $200,000 into the custody of De Rojas, and surrendering complete control for a time, could risk a rip-off or loss. The accused’s account of a domestic transfer of the valuable cargo through an anticipated tap on her shoulder by a stranger at the P.I.A. makes no sense. On the accused’s evidence, she had clothing in the Exhibit #2 receptacle – the mechanics of any hand-over of the suitcase were entirely ambiguous.

[65] Ms. Calsavara reviewed the accused’s financial picture. She was in debt, with limited employment, no savings, and no child support, yet travelled to Peru four times in a year. After claiming that she dealt in cash and had no credit card, under cross-examination the accused acknowledged using a debit card and paying off her VISA card. It is said that the accused was not able to satisfactorily explain why, in her dire financial situation, she was periodically transferring money to Giovanni. After repeatedly testifying that she had no idea how to write a cheque, when confronted with her Exhibit #24 bank account documentation recording the writing of cheques, the accused claimed that she did not recall if she had written those cheques.

[66] It was submitted that in her own testimony the accused admitted that she was desperate for money. The Crown argued that the accused had a clear motive to participate in the importation of counterfeit money.

[67] The Crown submitted that the evidence suggests that the overseer, not the accused, purchased the airline tickets for the Peru trip. Although the accused claimed she went to Carlin Travel on December 1, 2010, after withdrawing cash from her bank account, and bought the tickets, the travel agency invoice is dated November 29. On that date, according to Ms. De Rojas’ bank records, she did not have sufficient funds to purchase the tickets. Confronted with this in cross-examination, it was submitted that the accused took refuge in a phoney story about having money from winning some informal lottery game. It was further submitted that the accused was unable to convincingly explain why Giovanni’s name was on the Carlin invoice bearing her home address when, on the accused’s evidence, he did not pay for the tickets and had never been to Canada.

[68] Ms. Calsavara submitted that the accused cannot be believed. She lied to the C.B.S.A. personnel and to the R.C.M.P. At the airport, she claimed “Edwin” had arranged the suitcase, and that she had no idea there was money secreted in her suitcase. She was observed to be nervous.

[69] It was submitted that the evidence, including the videotape of Ms. De Rojas’ R.C.M.P. interview, reveals that she has a better command of the English language than she is prepared to admit. It is apparent from the interview that she understood that money which was not real was counterfeit or not legitimate.

[70] In submitting that the accused’s evidence was not credible and is incapable of raising a reasonable doubt, Crown counsel pointed to a number of additional features of Ms. De Rojas’ testimony including:

(1) after stating in her in-chief evidence that she could not recall how she got the Exhibit #2 suitcase, in cross-examination the accused provided times, details and phonecall sequences leading up to acquiring the receptacle

(2) while claiming in her testimony that her mother’s warning about not bringing things back to Canada was a general one, in her R.C.M.P. interview the accused disclosed that her mother was aware of the suitcase and directed her remarks to that receptacle

(3) although the accused testified that she had seen Oscar Martinez driving her cousin on Highway #10, the accused subsequently testified that she had no idea the type of vehicle Martinez drove as she never saw him drive or with a car

(4) the accused was prepared, in the company of her young child, to assume the risk of smuggling drugs into Canada, but claimed that she wouldn’t take the risk of smuggling counterfeit money

(5) on the accused’s evidence, on her fourth trip to Peru in a year, and with her family travelling to the Lima airport with her, no one noticed that she then had a different suitcase

(6) the accused claimed that her good friend, Alicia Flores, whose home she visited, was unconnected to Oscar Martinez even though prior police investigation of Martinez in relation to a counterfeit matter connected him to an address where Flores resided.

The Defence

[71] Mr. Crothers submitted that the trial record supports a finding that Ms. De Rojas had no actual knowledge of the counterfeit U.S. currency in her suitcase and at no point was wilfully blind that such contraband might be in the receptacle.

[72] Counsel acknowledged the accused’s behaviour at the P.I.A. on the date of her arrest. It is said that the accused’s lies were fear-driven. She was out for self-preservation. She was afraid she might lose her children. She had reason to fear Martinez and his people. She had never before been in trouble. English is not her first language.

[73] Mr. Crothers agreed that Crown counsel correctly identified a number of inconsistencies and problems in Ms. De Rojas’ testimony, for example, in explaining the purchase of the airline tickets. Counsel accepted that frailties exist in the account provided by the accused. That said, counsel submitted that Ms. De Rojas was not a complex witness. Confusion ought not to be taken for lies to the court. She was not well-educated. She testified through a court interpreter with the limitations that brings. As well, as a first-time witness in court, the accused was understandably nervous, as she was subjected to a lengthy and skilful cross-examination. As a novice witness, she was required to explain events which transpired over a number of days in 2010.

[74] It was submitted that Ms. De Rojas was a “fantastic” target for a criminal enterprise. While not destitute, she had limited financial resources and was a traveller for family-related reasons between Peru and here. It is said that she was carefully selected by a Peruvian/Canadian organization with considerable sophistication. The counterfeit money was of good quality with its unlawful character really only identifiable by an expert. The money was concealed in the suitcase with high quality craftsmanship to defeat detection. On the accused’s evidence, Martinez became somewhat threatening, saying his connections would be able to monitor the accused’s travel to, and arrival in, Canada to facilitate retrieval of the suitcase containing the counterfeit money.

[75] The defence submitted that unlike many of the courier cases coming before the courts, where there is contact between a virtual stranger and the accused, here there was a level of trust on Ms. De Rojas’ part because she had socialized with Oscar Martinez in Canada as they had a common circle of friends. Martinez would know something of her background. Counsel noted that to the credit of Ms. De Rojas’ account, her description of Martinez provided at trial, before the in-trial R.C.M.P. investigation described in Exhibit #26 (and at paras. 60-1 above), closely matched the description of the Oscar Martinez in the Agreed Statement of Facts.

[76] It was accepted that the accused needed money and was prepared to act as a courier to smuggle money into Canada. It is submitted that her evidence ought to be accepted, or at least raise a reasonable doubt, that she subjectively believed she was secretly importing $50,000 but only in contravention of customs reporting requirements. On the accused’s evidence, she made repeated inquiries of Martinez as to whether the money was stolen or was related to drugs. She was not wilfully blind about the money described to her – she made reasonable efforts to become satisfied that it did not have the unlawful character she contemplated it might have and did not deliberately choose to ignore live suspicions.

[77] In the alternative, and in any event, it was submitted that even if it could be said that the accused was wilfully blind as to the possibility of the money being stolen or drug money, it could not reasonably be suggested that Ms. De Rojas knew, suspected or would reasonably have suspected counterfeit currency was in the Exhibit #2 suitcase. The accused did not see the money. There was nothing about the weight of the suitcase suggesting it might contain four times the value of currency represented to her, which might have called for further investigation. Mr. Crothers referred to the nature of the crime and the relative infrequency of its commission in noting that the unlawful importation of counterfeit money into Canada is uncommon – it is not a newsworthy or generally talked-about item. Accordingly, it is unlikely the accused would have turned her mind to the potential that the money could be counterfeit.

ANALYSIS

General Principles Re Fact-Finding

[78] The trier of fact may believe all, none or some of a witness' evidence: R. v. D.A.I., [2012] 1 S.C.R. 189, at para. 72; R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at p. 837; R. v. B.C., 2011 ONCA 604, at para 5 (leave to appeal refused, [2011] S.C.C.A. No. 519); 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), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44.

[79] 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 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at pp. 819-820.

[80] 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 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-8; Avetsyan v. The Queen, 2000 SCC 56, [2000] 2 S.C.R. 745, at paras. 18-22. However, as recognized in R. v. Chittick, 2004 NSCA 135, 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.

[81] 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. 758. 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 (2005), 2004 BCCA 555, 197 C.C.C. (3d) 425 (B.C.C.A.), at paras. 9-17.

[82] 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), 34 O.R. (3d) 332 (C.A.), at pp. 349-50; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.)(QL), at para. 1 (aff’d 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] 3 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.

[83] 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 (appeal heard and reserved (8 Dec. 2011), [2010] S.C.C.A. No. 494).

[84] 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 support a finding of guilt: R. v. A.(K.) (1999), 1999 CanLII 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.), at para. 44. “[A]ssessing the demeanour of a person from another culture is sometimes not easy”: Durani v. The State of Western Australia, [2012] WASCA 172, at para. 136.

[85] Where evidence is received through the filter of a court interpreter transferring testimony from the source language of a witness to the target language of the proceedings, the court should not be too quick to devalue the witness' evidence on the basis of perceived inconsistencies: R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at p. 987 ("... the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness ..."); R. v. X.(J.), 2012 ABCA 69, at para. 13; R. v. Zewari, [2005] O.J. No. 1953 (C.A.)(QL), at para. 4; NAFF v. Minister of Immigration (2004), 221 C.L.R. 1 (H.C. Aust.), at para. 30; Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25 ("It is much more difficult to assess the credibility of evidence given through an interpreter").

[86] 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 SCC 28, [2009] 2 S.C.R. 42, 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.

[87] 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 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at p. 375), 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: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70.

[88] 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, 653 F. 3d 1206 (10th Cir., 2011)(cert. denied to Shigemura, 132 S. Ct. 435 (2011)).

[89] While not essential to the prosecution’s proof of crime, evidence of motive may circumstantially contribute, in the context of the whole of the evidence, to establish an accused’s culpability. While those who are poor or in receipt of government assistance cannot be said for those reasons alone to be more likely to commit offences (R. v. Mensah (2003), 2003 CanLII 57419 (ON CA), 9 C.R. (6th) 339 (Ont. C.A.), at paras. 6-15 (leave to appeal refused, [2003] 2 S.C.R. ix)), evidence of limited means and of significant financial pressures, and in some cases the expenditure of funds for travel in such circumstances, may reasonably support an inference of motive to commit the alleged crime: Mensah, at para. 10; R. v. Sandhu (1998), 1989 CanLII 7102 (ON CA), 50 C.C.C. (3d) 492 (Ont. C.A.), at p. 495.

The Alleged Offences

[90] In an unlawful possession prosecution, the Crown must prove knowledge, consent and control respecting the prohibited substance on the part of the accused: R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 536, 540-1; R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, at pp. 362-64; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 125 C.C.C. (3d) 552 (Ont. C.A.), at paras. 10-11..

[91] As a general rule, there can be no proof of possession unless it is established by the Crown that the accused had “knowledge of the character of the forbidden substance”: Beaver, at p. 541; R. v. Pierce Fisheries Ltd., 1970 CanLII 178 (SCC), [1970] 5 C.C.C. 193 (S.C.C.), at pp. 203-4. In R. v. Eastgaard, 2011 ABCA 152, at para. 9, the court stated:

The Supreme Court has held that two elements must be satisfied in order to prove knowledge in a case such as the present: "the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty)": R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531 at pp. 541-42; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 16.

(emphasis added)

To similar effect is the statement in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16:

On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control…

(emphasis of original)

[92] In the case of an illicit drug, provided the prosecution establishes in a prosecution for possession on unlawful importation or introduction into Canada that the accused had knowing custody of a drug prohibited by statute it matters not that the accused did not know the specific identity of the prohibited drug: R. v. Burgess, 1969 CanLII 467 (ON CA), [1970] 2 O.R. 216 (C.A.), at p. 217; R. v. Blondin (1972), 1970 CanLII 1006 (BC CA), 4 C.C.C. (2d) 566 (S.C.C.), at p. 567 (aff’ing (1971), 2 C.C.C. (2d) 118 (B.C.C.A.), at pp. 121-123 per McFarlane J.A. and at pp. 129-131 per Roberston J.A. (“I do not consider that mens rea qua that offence [importing a narcotic] is proven by an intention to commit an offence which, so far as Blondin’s admitted knowledge went, might have been one against the Customs Act”).

[93] In the counterfeiting context, to establish unlawful possession, the Crown must prove “knowledge that the bill … was counterfeit at the time it was in his [her] possession … [as an] … element of the offence”: R. v. Santeramo (1976), 1976 CanLII 1456 (ON CA), 32 C.C.C. (2d) 35 (Ont. C.A.), at p. 44 (Crown appeal by leave dismissed October 2, 1979 pursuant to section 76 of the Supreme Court Act, R.S.C. 1970, c.S-19); R. v. Caccamo, 1973 CanLII 46 (ON CA), [1973] 2 O.R. 367 (C.A.), at pp. 369-370 (aff’d (1975), 21 C.C.C. (2d) 257 (S.C.C.)); R. v. Frenge (1993), 1993 CanLII 913 (BC CA), 86 C.C.C. (3d) 91 (B.C.C.A.), at pp. 95-6.

[94] There can be no presumption that the carrier of a receptacle containing concealed contraband is in knowing possession of the contraband – physical custody of the receptacle simply permits such an inference to be drawn: R. v. Lincoln, 2012 ONCA 542, at paras. 2-3. 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 paras. 18-9 (aff’d 2006 SCC 26, [2006] 1 S.C.R. 940).

Wilful Blindness

[95] Guilty knowledge may be established by proof that the accused had actual knowledge. However, depending on the circumstances, guilty knowledge may be imputed to an accused who, having a reason to suspect that a certain state of affairs existed, and “see[ing] the need for further inquiries” (R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21), deliberately declined to make those further inquiries necessary to confirm or refute that state of affairs preferring instead to remain ignorant of the truth. “[C]riminal intent includes wilful blindness”: R. v. Mara, 1997 CanLII 363 (SCC), [1997] 2 S.C.R. 630, at pp. 652-3. In R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, at para. 102, the Court approved Glanville Williams’ articulation of the doctrine of wilful blindness involving deliberate ignorance:

…A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness.

[96] A determination as to whether wilful blindness existed, as an equivalent of actual knowledge, “must be made in light of all the circumstances” (Jorgensen, at para. 103) including, for example, the accused being aware of “inherently suspicious events with details that were unclear and defied common sense”: Morales, at para. 26.

[97] As stated in Jorgensen, at para. 103, “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his [her] eyes because he [she] knew or strongly suspected that looking would fix him [her] with knowledge?” There must be “a real suspicion” causing the need for further inquiry: R. v. Lagace (2003), 2003 CanLII 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.), at paras. 25-6.

[98] Because wilful blindness has a subjective mens rea requirement (Eastgaard, at para. 15 (“a subjective mens rea requirement”); R. v. Niemi (2006), 2006 CanLII 13949 (ON CA), 208 C.C.C. (3d) 119 (Ont. C.A.), at para. 76 (“Niemi subjectively had a suspicion”)), it is not constructive knowledge, therefore making it inappropriate to ask what an accused “should” or “ought” to have known (R. v. Callejas, 2011 ONCA 393, at para. 8; R. v. Laronde, 2010 BCCA 430, at paras. 28-35; R. v. Smith, 2008 ONCA 101, at paras. 5-6; R. v. Malfara, 2006 CanLII 17318 (ON CA), [2006] O.J. No. 2069 (C.A.)(QL), at para. 2 (“Where wilful blindness is in issue, the question is not whether the accused should have been suspicious, but whether the accused was in fact suspicious”); R. v. Currie (1975), 1975 CanLII 1347 (ON CA), 24 C.C.C. (2d) 292 (Ont. C.A.), at p. 295 (“The fact that a person ought to have known that certain facts existed, while it may, for some purposes in civil proceedings, be equivalent to actual knowledge, does not constitute knowledge for the purpose of criminal liability and does not by itself form a basis for the application of the doctrine of wilful blindness”). What a reasonable person would have done may be a factor in determining whether a particular accused had, or did not have, the subjective mens rea for wilful blindness.

[99] In certain cases, where an accused made some or basic inquiries, but still harboured suspicions, it remains open to the trier of fact to find wilful blindness: R. v. Rashidi-Alvije, 2007 ONCA 712, at para. 24; Lagace, at paras. 27-29; Niemi, at para. 77. While there is no onus on an accused to demonstrate that all reasonable steps were taken where the circumstances called for further inquiry, there must have been meaningful additional investigation to eliminate the suspicion: Lagace, at paras. 28-9.

[100] Wilful blindness is distinguishable from recklessness: Briscoe, at paras. 22-3. 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: R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 584. Recklessness can override the defence of mistake of fact (Sansregret, at p. 235) and, where knowledge is an element of the crime charged, recklessness cannot satisfy proof of the knowledge element: Sandhu, at p. 497.

Fact-Finding in this Case

[101] Ms. De Rojas’ explanation relating to the counterfeit currency she introduced into Canada proffered a lack of knowledge on her part that the money secreted in the Exhibit #2 suitcase was counterfeit. The accused claimed a lack of actual knowledge of the fake character of the money and represented at trial that she at no point suspected she was agreeing to bring counterfeit money into Canada.

[102] What the accused did acknowledge at trial was wilful blindness that the concealed currency could have been stolen or derived from the illicit drug trade. On her account, she proceeded to introduce the suitcase containing the money into Canada while continuing to harbour these suspicions, even after questioning Martinez about the character of the funds. Fairly understood, this was the limit of the accused’s suspicions – she did not subjectively consider other possibilities including that the monies could be counterfeit. If that version of events was accepted or raised a reasonable doubt regarding Ms. De Rojas’ state of knowledge, she would be entitled to be found not guilty. To the extent that the accused’s own evidence disclosed recklessness on her part that the imported monies could be counterfeit, that does not prove the requisite element of knowledge.

[103] In my view, this case falls to be determined on the basis of assessing whether, on the totality of the record, Ms. De Rojas actually knew that she possessed counterfeit money. I am satisfied that the prosecution has established this element of the alleged offences beyond a reasonable doubt.

[104] A foundational aspect of the accused’s version of events is that she travelled to Lima in December 2010, having paid her own way, simply in order to visit family and her boyfriend, Giovanni. While there, Oscar Martinez unexpectedly phoned her mother’s cellphone and, in due course, propositioned her to take medicine and money back to Canada when she returned home.

[105] This account, of not going to Peru with the purpose, even if not the exclusive purpose, of bringing counterfeit money back to Canada is, on the whole of the trial record, not believable.

[106] The accused testified that she purchased the airline tickets for herself and her son on her own with her own money. Throughout much of her testimony, the accused advanced the position that she paid for the tickets from her CIBC bank account once government subsidy or assistance monies were directly deposited to that account on December 1, 2010. She skipped paying her December rent to fund her trip. However, when questioned, the accused was unable to locate any withdrawal entry in her bank account statement substantiating an $1800-plus cash withdrawal at the relevant time.

[107] The accused told C.B.S.A. Officer Joukova that she purchased the tickets on December 1, 2010. Ms. De Rojas repeated this fact in her examination in-chief and again in cross-examination. The Carlin Travel invoice, a document found in possession, records that the tickets were paid for in full on November 29, 2010, a recorded fact circumstantially at odds with the accused’s claim. Pressed vigorously in cross-examination, the accused resorted, for the first time, to a story of monies available to her from an informal lottery to pay toward the tickets. The inconsistency with prior explanations of this being in part the origin for the purchase of the tickets, and the confusing account of the lottery itself, together with other features of the evidence, warrants rejection of this testimony. By the end of cross-examination on this point, the accused was still unable to show in the CIBC bank records where any monies, said to have been used in the ticket purchase, had been withdrawn from her account.

[108] Other aspects of the evidence support rejection of Ms. De Rojas’ version of buying her own plane tickets including:

(1) the plane tickets were purchased at a travel agency in Toronto – although the accused professed to a history of dealing with this agency, she resided in Mississauga

(2) for what was essentially a planned vacation, the airline tickets were purchased almost immediately before the trip, on Monday, November 29, 2010, shortly before her Friday, December 3 departure

(3) the name on the Carlin Travel invoice listed as resident at the accused’s home address was “Giovanny Huaman”, spelled differently than the spelling of his name given by the accused in her evidence (“Giovanni Huamar”) – according to Ms. De Rojas, this individual had never been to Canada and did not buy the tickets – the accused’s explanation for Huamar’s name being on the invoice was entirely unconvincing

(4) the accused’s explanation was equally unconvincing as to why she would take over $1800 in cash to a travel agency – the accused had a VISA card and her bank records show that cheques had been written on her account.

[109] Further, Ms. De Rojas described herself as a frequent visitor to the home of her friend, Alicia Martinez. Alicia Martinez had resided at 2235 Hurontario Street, apartment #1116 in Mississauga. The accused testified that the person she identified as Oscar Martinez was unrelated to her friend. The prosecution circumstantially established that an Oscar Flores Martinez, also a Peruvian immigrant, and resident at 2235 Hurontario Street, apartment #1116 in 2010, passed a counterfeit US $100 bill in Mississauga only 57 days prior to the accused’s December 3, 2010 departure for Lima.

[110] It is unknown whether Oscar Martinez and Giovanni Huamar are one and the same person or aliases of someone else. What the totality of the record does establish is that Ms. De Rojas did not buy the plane tickets for the December trip. The evidence already reviewed, together with additional features of the case yet to be discussed, satisfies the court that an overseer within the counterfeit operation purchased the tickets, and that the accused well knew that she was importing counterfeit currency.

[111] The accused, although in receipt of social assistance, was, if not living hand-to-mouth, certainly in debt and without money by the end of each month. Ms. De Rojas had three children. She was not receiving child support from their father. She generally depleted her bank account monthly to zero or to a negative balance. She owed the government $24,000 and was barely working. On her own evidence, the accused was under financial pressure and concerned about her debts. Circumstantially, the accused had clear motive to participate in a counterfeit money importation.

[112] Ms. De Rojas presented as an unpersuasive witness, not only in her manner of testifying but also having regard to the plausibility and consistency of her evidence.

[113] On the accused’s account, while she was prepared to describe Oscar Martinez as a “friend”, he could not reasonably be considered a close friend. They had not been to each other’s houses. They were not romantically connected. They had not gone out together but rather travelled in the same circle of Peruvian national acquaintances. On Ms. De Rojas’s evidence, she could not say where Martinez resided except that he lived in Mississauga. She did not know where he worked. On the accused’s account, prior to mid-December 2010, she had not spoken to Martinez since September 1 of that year. There is an inherent implausibility about the accused’s story that after three and a half months of not seeing Martinez, he would unexpectedly contact her in Peru to participate in a scheme to smuggle tens of thousands of dollars into Canada.

[114] Then there is Ms. De Rojas’ evidence as to the circumstances of receipt of the Exhibit #2 suitcase. The accused’s account has been shifty and ultimately, like her evidence relating to the purchase of the tickets, appeared to be a story evolving and developing in real time at trial. At the P.I.A., on the date of her arrest, the accused claimed that “they”, including “Edwin”, had given her the suitcase although she had no knowledge of any money. In her evidence in-chief, the accused initially stated that she could not recall the events leading up to obtaining the suitcase. The question asked was clear. A highly competent interpreter was working. The question was asked by the accused’s own counsel. The accused had settled into testifying by the time the exchange occurred. The following day, Ms. De Rojas attempted to provide a detailed exculpatory account relating to receipt of the suitcase.

[115] Without being exhaustive, several aspects of Ms. De Rojas’ evidence, beyond those already discussed, detracted from her credibility generally. The accused, who I am satisfied was not confused by the questioning or nervous, was evasive in cross-examination regarding such matters as the details relating to her bank account and whether she had a credit card. The accused variously testified that she took medicine from Martinez on the first and the second meetings. At trial, the accused claimed that her mother was unaware that she was taking a suitcase to Canada on behalf of someone else. Yet, in her R.C.M.P. interview, an interview in which I am satisfied the accused understood English sufficiently well not to be confused, the accused clearly related that her mother was concerned about her taking the suitcase.

[116] On the totality of the evidence, the accused’s observed nervousness at the P.I.A., and her lies to the C.B.S.A. and to the R.C.M.P., are more consistent with actual knowledge of the character of the money she carried.

[117] The accused’s account of the anticipated “hand-off” challenged experience and common sense. On her account, although she was entrusted with valuable cargo by Martinez, a person with whom she had a level of trust, curiously she was given next-to-no information about the transfer of what she was couriering. Some unidentified person would tap her shoulder at the P.I.A., a massive international airport, saying he was there for “Oscar”. Then, on Ms. De Rojas’ evidence, although her clothes were in the suitcase, and the medicine in another receptacle, she was not going anywhere with the contact. This makes no sense. Was she expecting to unpack the suitcase at the airport? With the accused having only $6.00 on her person, it seems that her response to C.B.S.A. Officer Joukova was true – that she was being picked up at the airport by a friend. The accused was leaving the airport with everything in her possession for subsequent transfer to her overseer. She knew she had introduced counterfeit money into Canada, and she knew precisely who, off the airport property, she was to deliver the contraband to.

[118] On the whole of the evidence, the Crown has established beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that Ms. De Rojas was knowingly in possession of counterfeit US currency and intended to introduce that currency into Canada.

CONCLUSION

[119] The accused is found Guilty of both counts in the indictment.

Hill J.

Released: October 23, 2012