[2] The sole issue at trial was whether the Crown had established beyond a reasonable doubt that Mr. Tomlin had, at the time he returned to Canada, knowledge his suitcases contained cocaine.

The Evidence

[3] The Crown called CBSA Officers, M. Medri and J. Sidor, the primary and secondary customs inspection officers.

[4] The Defence called Mr. Tomlin, Ms. Mitsie Evans (Mr. Tomlin’s mother) and Ms. Melissa Lindsay (Mr. Tomlin’s girlfriend on April 12, 2011),

The Evidence

[5] Mr. Tomlin was born in Jamaica. He immigrated to Canada in the early 1990’s. His father resides in Canada. His mother continues to reside in Jamaica.

[6] Mr. Tomlin was approximately 22 years old at the relevant time. He has no criminal record. He had previously only taken one international flight, some 10 years earlier. Mr. Tomlin speaks quietly.

[7] As of April 2011, Mr. Tomlin had not seen his mother in approximately 10 years. He decided in late 2010 or early 2011 to take a trip to Jamaica. He bought an airline ticket on January 31, 2011 leaving on April 1, 2011 and returning April 11, 2011.

[8] At the time, Mr. Tomlin worked part time at UPS and part time at Wind Mobile.

[9] Four or five weeks prior to the trip, Mr. Tomlin started to see a new girlfriend, Ms. Lindsay. Ms. Lindsay resides in Canada and had recently returned from a trip to Jamaica. Ms. Lindsay’s father resides in Canada. Prior to Mr. Tomlin’s departure for Jamaica, although not formally introduced to Ms. Lindsay’s father, she had pointed him out. Mr. Tomlin admitted in cross examination that he knew, before he left that Ms. Lindsay’s father resided in Canada.

[10] In mid March 2011 Mr. Tomlin told Ms. Lindsay he was going to take a trip to Jamaica in early April 2011.

[11] According to Mr. Tomlin, Ms. Lindsay asked him in March 2011 to bring back some fish from Jamaica for Easter. He testified that Ms. Lindsay told him her family was involved in the fishing business in Jamaica. Mr. Tomlin agreed to do so. Ms. Lindsay reminded him about bringing back the fish before he left. Mr. Tomlin also testified that Ms. Lindsay reminded him, during a telephone conversation while Mr. Tomlin was in Jamaica, to bring back the fish.

[12] This is in direct contrast to the evidence of Ms. Lindsay. Ms. Lindsay testified she had asked, prior to the trip, Mr. Tomlin to bring her back some "things" but didn’t ask him to bring back fish. Ms. Lindsay testified it was only when speaking with Mr. Tomlin, while he was in Jamaica, that Ms. Lindsay asked him to bring back some fish. She told Mr. Tomlin that her cousin, Andy, worked in the fish market; she had called her cousin and asked him for a dozen and a half snapper fish. Ms. Lindsay asked “Andy” to bring the fish to the address Mr. Tomlin had given him in Jamaica.

[13] Mr. Tomlin didn’t make the flight on April 1, 2011 and didn’t make the rescheduled flight on April 3, 2011. He eventually made the flight on April 4, 2011.

[14] Ms. Evans picked Mr. Tomlin up at the Jamaican airport. Mr. Tomlin spent the time in Jamaica with his mother and his uncle.

[15] At some point while in Jamaica, Mr. Tomlin bought another suitcase. There was no evidence as to why he needed a second suitcase, along with his carry on, for Mr. Tomlin’s return to Canada.

[16] The return flight was delayed from April 11, 2011 to April 12, 2012.

[17] Mr. Tomlin packed the night before his return.

[18] According to Mr. Tomlin, he received a phone call on his cell phone from Ms. Lindsay that her father would bring the fish to Mr. Tomlin. According to Mr. Tomlin, Lindsay’s father called him on his cell phone. There were no introductions, no discussion as to why he was coming or confirmation as to who it was. Mr. Tomlin didn’t even get the caller’s name. He still doesn’t know the name of the caller or Ms. Lindsay’s father. Nothing. It was just - I'm on my way, what are the directions. Mr. Tomlin gave the phone to his mother to provide directions to the caller. When cross examined as to whether he considered it strange that Ms. Lindsay’s father was in Jamaica and would be delivering the fish, Mr. Tomlin’s answer was not entirely coherent or credible. He said there was no reason for him to believe her father was in Jamaica but he simply accepted what he was told.

[19] In direct contrast, the evidence of Ms. Lindsay was that while speaking with Mr. Tomlin during the trip, Ms. Lindsay asked him to bring back some fish. She told Mr. Tomlin that her cousin, Andy, would bring the fish. She denied telling Mr. Tomlin that her father was going to deliver the fish. Her father was in Canada. Ms. Lindsay asked “Andy” to bring the fish to the address Mr. Tomlin had given him in Jamaica.

[20] Mr. Tomlin had no recollection of Ms. Lindsay ever mentioning her cousin or Andy.

[21] According to Mr. Tomlin, a person, he believed was Ms. Lindsay’s father, arrived at Ms. Evan’s home. Mr. Tomlin testified he had never met this person before. Ms. Evans had never met this person before. The person was in his 30’s or early 40’s. Mr. Tomlin said “hi”. Nothing more. This is highly unusual for two persons who had never met before or for Mr. Tomlin if he believed he was meeting the father of his girlfriend for the first time. There was no exchange of names. The person gave Mr. Tomlin and his mother the two packages wrapped in green garbage bags. There was no description of what was in the two packages. The packages were cold and hard.

[22] It is clear from the photographs that the two packages had some considerable size and must have had some considerable weight. Each package contained a number of small fish and a large fish and more than ½ kilo of cocaine, all frozen solid under several layers of packaging.

[23] Mr. Tomlin testified that he took one package from this person. His mother, Ms. Evans took the other package. The person said “have a good flight” and left. Those are the entire words spoken by this person. Mr. Tomlin’s testimony was that the entire verbal exchange between him and this person consisted of “hi” and “have a good flight”.

[24] Ms. Evans described the encounter as very brief – perhaps seconds. Even Ms. Evans denied saying anything or asking any questions of this person who gave them the two packages. She didn’t even ask Mr. Tomlin her son, what was in the packages he was bringing back to Canada. Ms. Evans couldn’t recall whether Mr. Tomlin told her that he had a girlfriend, let alone that he was bringing the packages back for his girlfriend. Ms. Evans didn't know that Mr. Tomlin thought this person who dropped off the two packages was his girlfriend's father. I have a difficult time understanding why Ms. Evans wouldn’t have asked questions of her son or this person and why she would put packages in her son’s suitcases without asking what was in the green garbage bags. Her explanation was that it was more important to get to the airport on time makes no sense whatsoever.

[25] Neither Mr. Tomlin nor Ms. Evans expressed any concern about taking tow packages wrapped in green plastic bags from someone they had never met before; didn’t get the name of and put the two packages in the suitcase bound for Canada.

[26] Mr. Tomlin said he never even thought about looking in the packages.

[27] According to Mr. Tomlin, he and his mother took the two packages, without looking at what was inside, put one in the bottom of each suitcase, closed the suitcases and left for the airport. However, Ms. Evans testified she observed the tin foil, newspaper and plastic which would suggest that Ms. Evans did in fact look inside the green plastic bags, and past the tin foil to the newspaper wrapped underneath. This would have been necessary given the manner in which the CBSA officer at secondary inspection described how the fish and cocaine were wrapped inside the green plastic bags.

[28] Mr. Tomlin denied knowing that Jamaica has lots of drugs or is a source of drugs.

[29] On his return to Canada, Mr. Tomlin travelled with two checked suitcases and one carry-on bag. The carry-on bag contained clothing such as shirts, shorts and pants as well as personal items. The two suitcases also contained some clothes as well as breadfruit, cheese, bun, mangoes. Mr. Tomlin also had a duty free bag with liquor in it.

[30] Mr. Tomlin completed the E311 Customs Declaration Form. According to Mr. Tomlin, he explained what he was bringing back to a stranger who told him to declare that he had no fruits or dairy products. Mr. Tomlin declared he had no such items and signed the Declaration. Mr. Tomlin knew and had no concern completing a false Declaration. According to him, he just did what the stranger suggested. In cross examination, he agreed that it would help to avoid being searched.

[31] Mr. Tomlin went to the primary customs inspection. He was referred to secondary customs inspection.

[32] At the secondary inspection, the CBSA officer checked the carry-on and found nothing but the clothing.

[33] The secondary officer then opened one of the suitcases. He found clothing fruit, bread, cheese, and a dark green plastic bag – one of the two packages the person had delivered to Mr. Tomlin in Jamaica.

[34] Mr. Tomlin told the secondary officer that the green plastic bag contained fish which his girlfriend had given him. This is consistent with what the secondary officer wrote on the E311 Declaration, “fish from girlfriend”.

[35] The secondary officer swabbed the interior and it showed trace amounts of cocaine. When asked why his suitcase came back positive for cocaine, Mr. Tomlin testified he thought maybe it had been the suitcase he had bought in Jamaica. However, he never told the CBSA officer that the suitcase was new or that he had just bought the suitcase in Jamaica.

[36] When the officer took the green plastic bag to the X-ray machine, he saw an anomaly.

[37] The secondary officer opened the green plastic bag. Inside, the contents were wrapped in tin foil. Inside the tin foil, the contents were wrapped inside newspapers. Inside the newspaper, the contents were wrapped in plastic. Inside the plastic, there were frozen fish, a number of small fish surrounding a larger fish. Inside the large fish was a brown plastic wrapped package weighing 545 grams. The contents were tested and the result was positive for cocaine.

[38] Mr. Tomlin was arrested for importation of a controlled substance.

[39] The secondary officer inspected the second suitcase. There was another green plastic bag, wrapped in the same way as the other green bag had been wrapped in the first suitcase. Inside the wrappings, there were a number of small fish and a large fish. This time the largest fish contained two brown plastic bags, one weighing 570 grams and weighing 197 grams. The contents of these brown plastic bags were weighed and analyzed as cocaine.

[40] There was a total of 1176 grams of cocaine in the three brown packages, with a wholesale value of approximately $40,000 and a retail value of approximately $100,000.

[41] Ms. Lindsay went to see Mr. Tomlin in jail. Mr. Tomlin said to her that he was in jail because cocaine had been found in the fish he was bringing back. This is an unusually subdued reaction from Mr. Tomlin who was arrested, supposedly, for bringing back fish from Ms. Lindsay’s father for her.

[42] Ms. Lindsay testified she tried to follow up as to what had happened. However, she was unable to do so. Her explanation seemed somewhat farfetched. She had called the person, she said was her cousin, in Jamaica but couldn’t get a hold of him for the past year and a half. There is no evidence she went to the Canadian or Jamaican authorities’ attention in April 2011 or any time since.

[43] Ms. Lindsay was asked why she had asked Mr. Tomlin to bring back fish from Jamaica. She said it was fresher from Jamaica. This was not a very credible answer from Ms. Lindsay. She denied knowing she could get fresh fish here. She said it was more expensive and fresher from Jamaica. However, carrying a dozen and a half fish from Jamaica is no easy task for her recent boyfriend. Besides the fish she was getting was frozen in any event. The explanation makes little sense.

[44] When Ms. Evans asked her son whether he had the telephone number of the “person”, Mr. Tomlin said he didn’t because the police took his phone. There was no suggestion by Ms. Evans that Mr. Tomlin retrieves his phone or gets access to the telephone number of the person in Jamaica.

[45] There are two areas not dealt with above in the evidence because I am not persuaded that they are relevant to the issue to be decided.

Missed Flights

[46] There was some issue regarding whether Mr. Tomlin had told the CBSA officer he had missed his return flight in Jamaica several times, whereas, in reality Mr. Tomlin had missed the departure flight several times in Canada. Nothing turns on this. It might simply have been a misunderstanding.

Nervousness at customs

[47] No doubt each individual reacts differently at customs when returning from abroad. Some are nervous for no reason. Others have reason to be nervous. In the circumstances of this case, the nervousness of Mr. Tomlin was such that no weight can be put on the reactions observed by the CBSA officers.

Credibility of Mr. Tomlin

[48] I do not accept the evidence of Mr. Tomlin. There are a number of reasons for this including:

a) Mr. Tomlin admitted he was prepared to lie, knew it would be a lie and did lie on his E311 Declaration with respect to items he was importing and he had no concern in doing so. In fact, he thought it might help to avoid a search. His explanation that his was done because a total stranger told him to do this was simply not believable;

b) Mr. Tomlin knew Ms. Lindsay's father lived in Canada. Mr. Tomlin didn't even think about how it could be possible that Ms. Lindsay's father would be delivering the fish in Jamaica. He didn’t ask Ms. Lindsay how this could be possible. He didn’t ask the person who called for directions whether it was Ms. Lindsay’s father. He didn’t ask the person delivering the two packages whether he was Ms. Lindsay’s father or what his name was;

c) Mr. Tomlin didn't even question Ms. Lindsay or the person who delivered the two packages as to whether it was Ms. Lindsay's father or some stranger. Equally important, the person didn't even ask Mr. Tomlin for his name to ensure the two packages were being delivered to the right person. The entire interaction with the person who delivered the two packages is not believable. Mr. Tomlin testified he believed it was Ms. Lindsay's father. However, when meeting Ms. Lindsay's father, a person he said he had never met before, he said nothing more than "hi". The person didn't even ask for Mr. Tomlin's name. Mr. Tomlin didn’t ask his name. The person simply handed two packages wrapped in green garbage bags to Mr. Tomlin. The person said "have a good flight". What a unbelievable explanation for meeting with this person whether or not it was Ms. Lindsay’s father;

d) Mr. Tomlin said he didn't question or was concerned about importing two packages in green garbage bags from Jamaica without checking the contents. It is difficult to accept that Mr. Tomlin would take two packages from a stranger he never previously met in Jamaica and not question the contents or be concerned that he might be transporting drugs from Jamaica to Canada;

e) Mr. Tomlin said he didn't look inside the two packages but his mother appeared to have seen what was in the two packages. I cannot imagine that Mr. Tomlin and his mother would have accepted two packages from a stranger to take to Canada without having looked at what was inside;

f) Mr. Tomlin bought another suitcase in Jamaica a few days before he left. Clearly, this was necessary to bring back the two large and heavy packages the person delivered just hours before the return flight to Canada. This suggests that Mr. Tomlin knew in advance of the need for an additional suitcase;

g) Mr. Tomlin when he finally saw Ms. Lindsay at the jail, his only comment was that he was in jail because cocaine had been found in the fish he was bringing back. On his own version of what had happened, one would have expected Mr. Tomlin to be extremely upset and making accusations to Ms. Lindsay or about Ms. Lindsay’s family. Yet none of that happened. This very subdued reaction by Mr. Tomlin is more consistent with Mr. Tomlin having known about the cocaine in the two packages and had no reason to blame Ms. Lindsay;

h) The telephone call from the unknown person who dropped the fish off in Jamaica raises another issue. The person had called Mr. Tomlin but the phone number of this individual was not available. Mr. Tomlin said to his mother that the police had taken his cell phone. Even so, surely, the telephone number would have been available to him. In addition, Ms. Evans said she had never seen the person who delivered the packages before or since that morning. There was no evidence she went to the police in Jamaica or did anything to find this person. Further, Ms. Lindsay, testified she couldn't get a hold of her cousin on the telephone for the past year and a half. She had no problem getting a hold of her cousin when she wanted Mr. Tomlin to bring back fish. She now states that her cousin has been recently arrested but it’s not clear for what. Again, nothing was done by Ms. Lindsay to follow up on the unknown person who delivered the fish, if indeed it was her cousin; and

i) Mr. Tomlin testified that he knew he was bringing fish back from Jamaica before he left. This is in direct contrast to the evidence of Ms. Lindsay, which I accept on this point. She did not tell him he would be bringing back fish until sometime during the trip;

[49] I reject Mr. Tomlin’s evidence that he didn’t know there was cocaine in the packages.

Credibility of Ms. Evans

[50] The difficulty with Ms. Evans’ evidence is that she clearly has an interest in helping her son. However, much of her evidence, while confirmatory of several aspects of what happened on the morning of her son’s departure from Jamaica, makes little sense. Taking two green plastic packages from a stranger, putting them in her son’s suitcases for exportation without asking a single question of anyone, including her son, as to who the person was and what was in the packages, makes absolutely no sense.

Credibility of Ms. Lindsay

[51] A great deal of Ms. Lindsay’s evidence contradicts significant aspects of Mr. Tomlin’s evidence. The question I have with Ms. Lindsay’s evidence is trying to assess her involvement in the importation of the cocaine. In my view, she had some involvement – it was her idea to have Mr. Tomlin bring back fish and she arranged for the frozen fish to be delivered to him by someone in Jamaica. On the other hand, even accepting this, I cannot accept Defence counsel’s submission that this makes Mr. Tomlin, or suggests he was, the “blind mule”. Much of the evidence against Mr. Tomlin had nothing to do with Ms. Lindsay including:

i. Buying the second suitcase several days earlier which would be needed for transporting the two packages;

ii. The extremely strange and highly suspicious interactions (both the phone call and the brief drop off) with an unknown person when the two packages were delivered;

iii. The failure to inspect or even have any concern what might be in the two packages; and

iv. The deliberate lies on the E311 Declaration.

Analysis

[52] In this case there is no evidence that Mr. Tomlin had actual knowledge his suitcases contained cocaine.

[53] However, knowledge can also be established by an inference drawn from all the evidence, considered in its totality.

[54] There have been numerous judicial comments regarding when such an inference can be drawn.

[55] Justice Hill in R. v. Harris, 2012 ONSC 27 at paras 61 to 65 recently reviewed the law in this area:

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.

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.

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.

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”).

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).

[56] In R. v. Pham, 2005 CanLII 44671 (ON CA), 2005 204 OAC 299 at para 30 the Court of Appeal made the following statements regarding basing a conviction on inferences from proven facts:

The trial judge instructed himself on reaching a conviction based on inferences from proven facts. At page 4 of the judgment he states as follows:

If I am to convict on inferences of fact, I must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from all of the proven facts. In assessing inferences for each piece of evidence the reasonable doubt standard is not to be applied each time. I am to consider the inference suggested against any other reasonable inference that can be drawn and attribute weight accordingly. All of the evidence that I determine merits weight is then assessed on the reasonable doubt standard.

This is in keeping with what Lord Wright emphasized in Caswell v. Powell Duffy Associated Collieries Ltd., [1940] A.C. Where at p. 169 he stated:

…that inference must be carefully distinguished from conjecture or speculation and there can be no inferences unless there are objective facts from which to infer other facts which it is sought to establish.

In R. v. Lukianchuk, 2001 BCSC 119, [2001] B.C.J. No. 3000, 2001 B.C.S.C 119, Romilly J. had this to say at page 7 paragraph 19:

In R. v. To, supra the accused was arrested after placing a plastic bag in a vehicle. The bag contained several videotapes and 4.4 lbs of heroin. The trial judge disbelieved the accused’s evidence that he did not know what was in the bag. McEachern C.J.B.C. stated at page 230:

It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty. I do not think it can properly be said that the inferences of knowledge in this case would be unreasonable or unsupported by the evidence.

[57] In R. v. Jones, (2006) 2006 CanLII 28086 (ON CA), 214 OAC 225 at para 6 and 8, the Court of Appeal set out the uses the trier of fact can make of any false statements made by the accused:

The appellant’s submission misconstrues O’Connor and similar cases. The potential evidentiary value of false statements made by an accused turns on the generally applicable principles of relevance and materiality, and not on any rules unique to false statements. Statements by an accused to the authorities that are found by the trier of fact to be untrue may or may not provide circumstantial evidence of the accused’s state of mind. Those statements may provide evidence of the accused’s state of mind if, on the totality of the evidence:

♦ the trier of fact can reasonably infer that the accused knowingly made false statements; and

♦ the trier of fact can reasonably infer the existence of the relevant culpable state of mind from the making of deliberately false statements.

The nature of the lies told by the appellant and the circumstances in which those lies were told, allowed for the reasonable inference that the appellant lied to the Customs officials in an attempt to present himself as a responsible, law-abiding citizen to “divert suspicion from himself”, and avoid a search of his luggage. That inference was potentially probative on the question of whether the appellant knew that there was cocaine hidden in the luggage

[58] Do I accept the evidence of Mr. Tomlin that he didn’t know there was cocaine in his suitcases? No. For the reasons set out above, I reject Mr. Tomlin's evidence that he didn't know there was cocaine in his suitcases.

[59] Does Mr. Tomlin's evidence leave me with a reasonable doubt as to whether he knew the cocaine was in his suitcases? No. The events as described by Mr. Tomlin in his evidence were not credible at all. His description of the telephone call and meeting with this unknown person in Jamaica, the circumstances surrounding his receipt of the two package including the lack of inspection, inquiry or concern as to the contents of the two packages from a stranger, and his conduct with Ms. Lindsay after he had been arrested for importation, does not leave me with a reasonable doubt as to Mr. Tomlin’s lack of knowledge that his suitcases contained cocaine.

[60] Does the evidence that I do accept establish beyond a reasonable doubt Mr. Tomlin knew his suitcases contained cocaine when he returned to Canada?

[61] I am satisfied that the Crown has established knowledge of Mr. Tomlin beyond a reasonable doubt

[62] The facts are the following:

a) Mr. Tomlin travelled to Jamaica;

b) Mr Tomlin purchased a second suitcase in Jamaica. He must have known he needed additional space for his return to Canada;

c) Just prior to his return flight, Mr. Tomlin gets a call from a stranger. No questions are asked as to who it is, what they are bringing, how long will it take them to arrive. – Nothing. Mr. Tomlin gets his mother to give the stranger directions to her home;

d) A person arrives – perhaps even the person who called. Mr. Tomlin meets with this person, a person he has never met before. Mr. Tomlin doesn’t ask or confirm who he is meeting with. The person doesn’t ask for Mr. Tomlin’s name. There is no significant conversation or even identification between Mr. Tomlin and this person;

e) This person gives Mr. Tomlin two large green plastic packages. Mr. Tomlin doesn’t ask what is in the packages. Mr. Tomlin simply takes the two packages. Mr. Tomlin doesn’t even look at what is inside the two packages;

f) This person leaves without said anything except when leaving - “have a good flight”;

g) Mr. Tomlin has no concern as to what might be in the packages or that the packages might contain drugs for importation to Canada from Jamaica;

h) Without any inspection, even to make sure that what was frozen wouldn’t get over the other contents of the suitcase, Mr. Tomlin simply puts the two green bag packages at the bottom of his suitcases;

i) Mr. Tomlin checks both suitcases at the airport containing the two packages. Some of his clothes are in his carry-on bag;

j) When Mr. Tomlin arrives in Canada, he signed a Declaration that he has nothing, except $25 worth of goods, which would account for the duty free liquor bag he was carrying. An untrue Declaration. He hopes this avoids him searched;

k) Mr. Tomlin’s suitcases are searched at the airport. When asked about the frozen fish, he says the frozen fish is from his girlfriend. An untrue statement;

l) The cocaine is found in the two green plastic bags; and

m) After his arrest, Mr. Tomlin’s reaction to Ms. Lindsay, if he believed she set him up or her family in Jamaica set him up without him knowing cocaine was in the two packages, was to say the least, subdued.

[63] I am satisfied the above facts support a reasonable and rational inference that Mr. Tomlin knew there was a controlled substance in the two packages. Is there any other reasonable or rationale inference to be drawn from the above facts other than Mr. Tomlin knew the packages contained a controlled substance or cocaine?

[64] I dismiss, without hesitation, that the above facts are reasonably consistent with Mr. Tomlin’s version that he was getting fish from Ms. Lindsay’s father to bring back to Canada. I will not repeat the reasons set out above.

[65] Is there any other reasonable or rational inference to be drawn from the above facts other than Mr. Tomlin knew the packages contained cocaine? The Defence suggested none other than possibly Mr. Tomlin was a “blind mule” for Ms. Lindsay or her family.

[66] The Defence suggests that if this court accepts Ms. Lindsay’s evidence , the evidence suggests (or at a minimum raises a reasonable doubt) that Mr. Tomlin was a “blind mule”. The Defence argues that Ms. Lindsay asked for the fish, her family delivered it to Mr. Tomlin and Mr. Tomlin was to deliver it to Ms. Lindsay. As a result, Mr. Tomlin could have been a “blind mule”. There are several problems with this submission.

a) First, for the reasons set out above, Mr. Tomlin’s actions, independent of Ms. Lindsay’s alleged involvement, in particular the circumstances of Mr. Tomlin’s dealing with the caller and the person who attended his mother’s home and how he dealt with the receipt of the two packages, is overwhelming evidence that Mr. Tomlin knew there was cocaine in the two packages;

b) Second, there is considerable amount of Ms. Lindsay’s evidence I do not accept. It is not necessary that a trier of fact accept all or none of a witness’ evidence. For instance, I do not accept that she didn’t know there was cocaine in the two packages. She had just returned from Jamaica in January 2011. She wanted Mr. Tomlin to bring back a dozen and a half fish from Jamaica because it was cheaper and fresher. She has been unable to get a hold of her cousin – the one she contacted asking for the fish – for the past year and a half. Much of her evidence makes little sense unless she was complicit in the scheme to import the cocaine; and

c) Third, the “exit” strategy (to recover the cocaine) is easily accomplished if Ms. Lindsay has knowledge of the importation of the cocaine in the fish. It is also equally easily accomplished if Mr. Tomlin was the only person involved in the importation of the cocaine. He would have possession of the cocaine if he got through customs and could recover the cocaine before delivering the fish to Ms. Lindsay.

[67] I cannot think of any other reasonable or rational inference to be drawn from the above facts, other than Mr. Tomlin knew the two packages in his suitcases contained cocaine.

[68] I conclude, all of the above facts are consistent and only consistent with Mr. Tomlin’s knowledge that he was importing cocaine in the two packages.

Conclusion

[69] Mr. Tomlin is guilty of importing a controlled substance.

Ricchetti J.

Released: October 5, 2012

COURT FILE NO.: CR-11-1516

DATE: 2012-10-05

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Ramone Saint Christopher Tomlin

REASONS FOR JUDGMENT

Ricchetti J.

Released: October 5, 2012

Her Majesty the Queen v. Ramone Saint Christopher Tomlin, 2012 ONSC 5583

Case Summary

The Charge

The Sole Issue

The Evidence

The Evidence

Missed Flights

Nervousness at customs

Credibility of Mr. Tomlin

Credibility of Ms. Evans

Credibility of Ms. Lindsay

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2