ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 12 1820
DATE: 20130307
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. A. Shachter, for the Crown
- and -
PEREZ MIGUEL ST. HELENE
Mr. D. Smith, for the Defence
HEARD: February 12, 13, and 14, 2013
REASONS FOR JUDGMENT
André J.
[1] Mr. St. Helene arrived at the Toronto Pearson International Airport on September 10, 2011, while carrying 80 pellets with 560 grams of cocaine in his stomach. He testified that he had been kidnapped and forced at gunpoint in St. Lucia to swallow the pellets and to insert others into his rectum.
[2] The issues in this trial are:
Do I believe his testimony?
If not, is it capable of raising a reasonable doubt in the Crown’s case?
If not, has the Crown proven its case against Mr. St. Helene beyond a reasonable doubt?
SUMMARY OF THE EVIDENCE
A. Justin Coulas
[3] This Border Services Officer initially met Mr. St. Helene after he had been seen by a primary inspector. He asked him a number of questions concerning the purpose of the trip, where he intended to live while in Canada and his employment status. Mr. St. Helene replied that he was here to visit a friend and to seek medical attention. He stated that he would be living with a friend while in Canada. He also stated that back in St. Lucia he managed his wife’s law office.
[4] During this conversation, Mr. Coulas received information that Mr. St. Helene’s baggage had tested positive for drugs following a K-Nine inspection. The initial conversation with Mr. St. Helene lasted about 60 seconds. Mr. St. Helene appeared nervous and his hands were trembling. He made no mention of being under any threat or danger.
[5] Mr. Coulas next met Mr. St. Helene in the customs secondary area. He examined Mr. St. Helene’s luggage but found no drugs. Mr. Coulas questioned Mr. St. Helene further about the reason for the trip. Mr. Coulas learnt from Mr. St. Helene that the travel ticket had been purchased in cash a week earlier. He provided the name of his friend in Canada, two phone numbers, and a Toronto address. He advised that he intended to go to a walk-in clinic in Ottawa where he expected to be referred to a medical specialist. He claimed that he earned U.S. $ 2,000 a month and had $400 in his possession and $7,000 in Canadian currency in his bank account. He advised Officer Coulas that his wife practiced business, corporate and constitutional law.
[6] Mr. Coulas called Mr. St. Helene’s friend. He got no response. With Mr. St. Helene’s consent Mr. Coulas called Mr. St. Helene’s wife. The latter confirmed that Mr. St. Helene had travelled to Canada for medical attention.
[7] The officer then asked Mr. St. Helene if he had swallowed drugs. The latter did not respond. He asked Mr. St. Helene how many pellets he had swallowed. Mr. St. Helene replied, “I can’t tell you.” The officer then asked the accused whether he had swallowed drugs. Mr. St. Helene replied that he had.
[8] Thereupon, Mr. Coulas arrested Mr. St. Helene for importing drugs. He read him his rights to counsel. Mr. St. Helene asked to speak to a lawyer. He also asked the officer not to tell his wife that he had been arrested for drug importing.
[9] A strip search of Mr. St. Helene did not lead to a recovery of any drugs.
[10] The officer had a third conversation with Mr. St. Helene, along with fellow officer Brian Emanuel. During this conversation Mr. St. Helene admitted to swallowing about 50 pellets and advised that they were green in colour. By then he appeared calm and relaxed rather than nervous as he had been before the arrest.
[11] Mr. St. Helene excreted one pellet while in the custody of Mr. Coulas. He complained of pain in his rectum and the officer contacted medical services for him. He later excreted an additional 79 pellets.
[12] Mr. St. Helene never sought protection from danger, complained about any threats or asked Mr. Coulas for any help while in the officer’s presence that evening.
[13] Under cross-examination, Officer Coulas agreed that Mr. St. Helene was cooperative. He conceded that he never asked Mr. St. Helene if he needed help or if he was in any distress.
B. Brian Emanuel
[14] This Border Services Officer assisted Mr. Coulas after he had arrested Mr. St. Helene. Prior to the accused being strip-searched, Officer Emanuel asked him how many pellets he had. Mr. St. Helene replied that he had more than ten approximately 50. Following the strip search, Mr. St. Helene stated that the pellets were about the size of baby carrots and that they were green in colour. He also stated that he had swallowed the pellets over a two-hour period.
[15] Mr. Emanuel testified further that Mr. St. Helene was despondent and that he did not want them to contact the St. Lucian consulate or tell anyone about what had happened. Furthermore, that Mr. St. Helene never asked for protection neither did he seek any assistance from danger.
C. Constable Deandra Wiseman
[16] The RCMP officer testified that Mr. St. Helene excreted 80 pellets. A swallower’s log was created that documented each time Mr. St. Helene had a bowel movement, the number of pellets he excreted and the officer or officers who escorted him to the special “loo.” She also testified that Mr. St. Helene never asked for protection from danger or assistance from the authorities.
[17] After Mr. St. Helene excreted the drug pellets, the officer took a statement from him. During the statement he stated that the reason for his visit was to seek treatment for an eye problem. He stated that he had been seen by a doctor in Ottawa in 2009 for a similar problem which the officer later confirmed as being true. Mr. St. Helene also stated that he had imported illegal drugs to Canada because certain individuals had threatened to kill his family if he failed to do what they asked him to do.
D. Perez Miguel St. Helene
[18] The 36 year-old father of two testified that before the incident he lived in St. Lucia with his wife and two children. He managed her law office and earned $6,000 €.C. dollars monthly. He developed an eye problem and sought treatment from a doctor in Ottawa in April 2009. His eye problem flared up again in September 2011, forcing him to seek further treatment from the doctor in Ottawa.
[19] He purchased a ticket to travel to Canada one week before travelling. He paid €.C. $ 2,600 with cash since that was the easiest thing to do. On the date of travel, he took a taxi to the airport and arrived at approximately 11:45 a.m. His flight was scheduled to leave at 3:00 p.m. The airline counter was closed so he then decided to travel to Vieux Fort to eat something before returning to the airport.
[20] He took a taxi to the town and was dropped off at a main square. Three men in a station wagon approached him. They called him over. He approached them. The caller sounded Jamaican. They asked him to enter the vehicle or his wife and two kids would get it. Alarmed over the safety of his family, he entered the vehicle.
[21] Thereupon the men asked him to swallow pellets the size of baby carrots. He thought that the pellets contained illegal substances. He initially refused to swallow but one of the men stuck a gun into his side and told him that he had better swallow the pellets. The man repeated the threat that if Mr. St. Helene did not do it his wife and children would get it.
[22] In shock, Mr. St. Helene swallowed three pellets. He was forced to continue. He swallowed each pellet at 3 to 5 minutes intervals. The men gave him a number of painkillers and a pink liquid to coat his stomach. He believed that he swallowed about 50 pellets.
[23] The men forced him to insert the remaining pellets into his buttocks. They then dropped him at the airport. They told him that after clearing customs he should go to the taxi stand at the Toronto airport and smoke a cigarette. A man would then pick him up.
[24] Mr. St. Helene checked in at the airport. He purchased a turkey sandwich and two bottles of local rum to take to Canada for his friends. He told no one of his ordeal because of his concern over his family’s safety.
[25] Upon arrival in Toronto he did not tell the Border Services Officers that he had been forced to import drugs. He feared that his family would end up dead if he did. He could not tell the officers because he believed that a gentleman was outside the airport waiting for him. He only told Constable Wiseman about the threats because he had excreted the pellets by then and would therefore not be delivering the drugs to the gentleman who was waiting for him.
[26] He eventually spoke to his wife while he was in custody. Mr. St. Helene denied that he intentionally imported drugs into Canada.
THE LAW
[27] A person who commits a criminal act under compulsion of a threat is not criminally culpable of the offense because the act was done under duress. To constitute a defence of duress or having acted under duress it is not necessary for the threat to be immediate or imminent. It is available as a defence to criminal conduct where an accused commits an offense to “avert death or serious injury, but no one is demanding that he (or she) does so.” R. v. Rusic, [2001] 1 S.C.R. 67 (S.C.C.) para. 68.
[28] In R. v. Ryan, 2013 SCC 3, [2013] S.C.J. No. 3 (S.C.C.), the Supreme Court of Canada at paragraph 55, set out the following elements of the common law offence of duress:
an explicit or implicit threat of death or bodily harm proffered against the accused or a third person. The threat may be of future harm. Although, traditionally, the degree of bodily harm was characterized as “grievous”, the issue of severity is better dealt with at the proportionality stage, which acts as the threshold for the appropriate degree of bodily harm;
the accused reasonably believed that the threat would be carried out;
the non-existence of a safe avenue of escape, evaluated on a modified objective standard;
a close temporal connection between the threat and the harm threatened;
proportionality between the harm threatened and the harm inflicted by the accused. This is also evaluated on a modified objective standard;
the accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.
[29] Regarding the third criterion, where a reasonable person in similar circumstances would conclude that there was a safe avenue of escape, then the criminal act or acts perpetrated by the accused cannot be excused using the defence of duress because they cannot be regarded as morally involuntary. Ryan, supra, paragraph 65.
ANALYSIS
ISSUES NO. 1 AND 2
[30] Mr. St. Helene testified that three unknown men essentially kidnapped him at gunpoint and then forced him to swallow about 50 pellets of drugs. They forced him to insert an additional thirty pellets into his rectum. He did not reveal what had happened to any person in authority because of his concerns for his family’s safety. He only told Constable Wiseman about the threats after he had excreted the cocaine filled pellets from his body.
[31] I have numerous concerns about Mr. St. Helene’s testimony. He testified that he had spent four months in Canada in 2009 trying to obtain an appointment with a specialist in Ottawa for the eye problem. He testified that he decided to travel to Canada in September 2011 because his eye problem flared up again. He purchased his travel ticket one week before leaving St. Lucia. One would have thought that given his difficulties in obtaining a specialist’s appointment in 2009, and the cost of travelling to Canada, he would have made some effort to contact the doctor who treated him then, during the week before he travelled to Canada. He testified however, that he made no attempt to do so.
[32] Secondly, Mr. St. Helene testified that he left his town of Gros Islet at approximately 11:00 a.m. to avoid any inclement weather which had been predicted for that day. He arrived at the airport at about 11:45 a.m. but went to Vieux Fort ten minutes after his arrival to get something to eat before his departure. He also testified that the check-in counters opened 2 to 2 ½ hours before his flight which was scheduled to leave at 3:05 p.m., or between 12:30 p.m. and 1:00 p.m.
[33] One would have thought that at the only international airport on St. Lucia, Mr. St. Helene would have been able to find something to eat rather than take a taxi to Vieux Fort while lugging a suitcase, for that purpose.
[34] Additionally, Mr. St. Helene testified that he wanted to go to a shopping mall in Vieux Fort. He also testified that there were people around when the men ordered him into their vehicle. Mr. St. Helene however, gave a prior inconsistent statement to the police in which he stated that the men approached him when he was alone smoking a cigarette while looking around. He also admitted in cross-examination that he never mentioned in his statement that he wanted to go to a shopping mall in Vieux Fort.
[35] There are a few other inconsistencies between Mr. St. Helene’s testimony and the statement he gave to the police and his utterances to the Border Services Officers at the Toronto Pearson International Airport on September 10, 2011. He initially told Constable Wiseman that two or three gentlemen approached him in Vieux Fort. In his testimony however, he insisted that there were three males in the car. He also told Officer Emanuel that he had swallowed about 50 pellets while he testified in cross-examination that the number of swallowed pellets could have been 13, 15, 17 or 20.
[36] Additionally, the time line of events, based on Mr. St. Helene’s testimony, simply does not add up. He arrived at the Vieux Fort Airport at approximately 11:45 a.m. He remained there for 10 minutes before taking a 5-minute taxi ride to the town. He was therefore in Vieux Fort at about 12:00 midday and he later checked in his luggage at 1:49 p.m.
[37] Mr. St. Helene testified that after swallowing the first three pellets, it became difficult and painful to swallow the rest. It became so difficult that it took him up to 5 minutes to swallow each remaining pellet. In other words, it would have taken him 2.3 hours to 4 hours to have swallowed the remaining 47 pellets. To that extent, even if he had started swallowing the pellets at 12:00 midday and arrived at the airport immediately after he swallowed his last pellet, he would not have been able to check in his luggage before 2:20 p.m. He would have checked in even later because the insertion of 30 pellets into his rectum would have required an additional period of time.
[38] When confronted with what I describe as a “time discrepancy,” Mr. St. Helene replied that what he actually meant was that it merely seemed as if five minutes had elapsed before he swallowed each additional pellet. It is clear however, that it was only after Mr. St. Helene was confronted with this contradiction that he saw it necessary to modify his initial testimony.
[39] Defence counsel submits that the defence evidence should not be held to such “unrealistic expectations of precision”. To the extent that Mr. St. Helene relies on the time estimates he provided then the court has an obligation to scrutinize them. For example, he testified that he left his hometown at approximately 11:00 a.m. to avoid the anticipated inclement weather. He testified that it took him about five minutes to swallow subsequent pellets because it was painful to do so. It was important to his defence to indicate this since it bolstered his testimony that he was forced to swallow pellets with cocaine. These time estimates given by Mr. St. Helene raise serious questions about the veracity of his testimony that three unknown men forced him to swallow drugs.
[40] Mr. St. Helene’s testimony about what happened after his arrival at the airport in Vieux Fort is internally inconsistent. He stated that he feared for his family’s safety. He testified that he was so distressed after swallowing a large number of pellets and having a number of them forced into his rectum that he literally staggered to the check-in counter. His departure tag confirms that he checked in at 1:49 at the airport in St. Lucia. He could not recall if the flight departed at 3:05 p.m. or later. Despite this heightened fear for his family’s safety, Mr. St. Helene made no attempt to either contact his wife to alert her of the danger or to contact the authorities.
[41] Mr. St. Helene explained his failure to do so by stating that he did not trust the St. Lucian authorities and that alerting his wife would not necessarily have protected her. However, there was no basis for Mr. St. Helene to have concluded that he could not contact the St. Lucian authorities or for him to believe or suspect that they were in cahoots with the three men.
[42] Instead of alerting the authorities or contacting his wife, Mr. St. Helene acted in an entirely normal fashion. He stated that he purchased a turkey sandwich and later two bottles of local rum for his two Canadian friends. One would have thought that given the physical ordeal and emotional trauma he was experiencing, making these purchases would not have been uppermost in his mind.
[43] Additionally, I cannot find that a reasonable person in the same situation as Mr. St. Helene and with the same personal characteristics and experience would conclude that there was no safe avenue of escape or legal alternative to committing the offence, if, indeed, he had been threatened. As noted, Mr. St. Helene had ample time or opportunity to contact the St. Lucian authorities about his ordeal. Assuming that he had good reasons to distrust the St. Lucian authorities, he had an opportunity for the duration of the flight to alert a member of the plane’s crew about his ordeal. He did not.
[44] He was again presented with other opportunities to alert the Canadian authorities about his situation. The man waiting for him was somewhere outside. He had no reasonable belief that the Canadian authorities had any connection to the three kidnappers. Here was an opportunity to advise the Canadian Border Services about what he was forced to do.
[45] Rather than seize this opportunity, Mr. St. Helene said nothing either to Mr. Brown, Mr. Coulas or to Mr. Emanuel. He had three separate conversations with Mr. Coulas yet told him nothing about the threats.
[46] His reason for not doing so is beyond comprehension. He did not do so because an unknown male was outside the secured area of the airport waiting for him. One would have thought that concerns over his own safety and that of his family would have prompted him to tell the officers what had happened to him.
[47] Mr. St. Helene’s counsel submits that a foreigner in a foreign country could not reasonably be expected to have contacted the authorities about his situation. However, Mr. St. Helene was not a stranger to Canada. He had visited on two previous occasions in 2009 and had lived here for four months on the second visit. He had no difficulty speaking to the Border Services Officers. Without prompting, he asked Mr. Coulas not to advise his wife about his arrest. Based on the above, I cannot conclude that Mr. St. Helene’s failure to tell the Canadian authorities about the circumstances that led to him having drugs in his body was because he was a stranger in a foreign land.
[48] Mr. St. Helene’s words to Officers Coulas and Emanuel reveal that even after he had confessed to swallowing the drug pellets, he was not concerned about his wife’s wellbeing. He asked Mr. Coulas not to tell his wife about his arrest. Mr. Emanuel testified that Mr. St. Helene did not wish them to advise the St. Lucian consulate or anyone about what had happened. This in my view, conflicts with his professed concerns about his family’s safety.
[49] Defence counsel submits that the Crown’s theory that Mr. St. Helene intentionally imported cocaine is no more plausible than his client’s testimony about being forced to import drugs into Canada. Why, he asks, would Mr. St. Helene, risk a comfortable life with his barrister wife in a risky venture that could result in his imprisonment?
[50] Importing illegal drugs is not the exclusive preserve of the poor and underprivileged. The cases of drug importing that have appeared in this jurisdiction amply illustrate that even if the poor and disadvantaged are disproportionately represented among drug couriers, this type of illegal activity cuts across racial, social and professional lines. Mr. St. Helene’s status in St. Lucia is not necessarily a firewall that insulated him from being tempted by the financial windfall from a successful cocaine importing scheme.
[51] Defence counsel submits that Mr. St. Helene’s testimony raises a reasonable doubt about the Crown’s case given that much of it was confirmed to be true. For example, it was confirmed that he had a friend, in Ottawa, and that he had been treated by a doctor in Ottawa. Furthermore, the pain he experienced in his rectum following excretion of the first pellet confirms that he was forced to insert pellets into his rectum. Furthermore, that he had $400 in his possession which was consistent with his testimony that he planned to remain in Canada for two weeks. Lastly, the fact that he had a pack of cigarettes confirms his testimony that the kidnappers told him to go outside the airport and light a cigarette as a signal to the unknown male who was supposed to contact him upon his arrival in Toronto.
[52] In my view the fact that Mr. St. Helene had a friend in Toronto or had previously seen a doctor in Ottawa does not confirm that he had been forced to import cocaine into Canada. While he may have experienced a pain in his rectum, he did not excrete additional pellets for approximately nine hours later. It is therefore difficult to attribute, absent medical evidence, that this pain was caused by the insertion of pellets into his rectum. It could well have been caused by the presence of the large number of pellets in his lower abdomen. As for the money in his possession, Mr. St. Helene testified that he intended to spend two weeks in Canada. The letter found in his possession apparently authored by his wife indicated that she had granted him a leave of absence for four weeks. In 2009, he extended his second trip to Canada to four months. I therefore cannot conclude that the money in his possession confirms or was consistent with his testimony that he was going to stay two weeks in Canada. Finally, the fact that Mr. St. Helene had a packet of cigarettes in his possession does not confirm his testimony because he told the police that he was smoking a cigarette in the main square in Vieux Fort before the men allegedly kidnapped him.
[53] For the above reasons, I find that Mr. St. Helene’s testimony about being kidnapped and forced at gunpoint to import illegal drugs into Canada to be unworthy of belief and incapable of raising a reasonable doubt about the Crown’s case.
ISSUE NO. 3
[54] Defence counsel submits that even if I reject Mr. St. Helene’s testimony as being unworthy of belief or incapable of raising a reasonable doubt, I must nevertheless be satisfied of his guilt beyond a reasonable doubt. That standard of proof can only be met if the Crown called evidence indicating that Mr. St. Helene voluntarily swallowed the drug pellets.
[55] I agree that based on the totality of the evidence that I accept, I must be satisfied of Mr. St. Helene’s guilt beyond a reasonable doubt. I disagree however, that the Crown is required to call direct evidence showing that Mr. St. Helene voluntarily swallowed the pellets or put them into a bodily orifice.
[56] There are three possible explanations for the presence of the pellets in Mr. St. Helene’s body. They were either placed there voluntarily, involuntarily or they got there by accident. The latter possibility can be excluded for obvious reasons. I have rejected the explanation of involuntary swallowing and insertion through an orifice. The only other rational inference, excluding divine intervention, is that they were ingested voluntarily by Mr. St. Helene.
[57] I find as a fact that Mr. St. Helene voluntarily and intentionally imported the illegal drugs in question into Canada. He likely did so for financial reasons. I find that after he excreted the 80 drug pellets he concocted a story about being kidnapped in an attempt to escape liability for his actions.
[58] On the facts of this case, I find that Mr. St. Helene intentionally imported the drugs in question.
[59] To that extent, I find Mr. St. Helene guilty of the charge of importing cocaine, contrary to section 6(1) of the Controlled Drugs and Substances Act.
André J.
Released: March 7, 2013
COURT FILE NO.: CR 12 1820
DATE: 20130307
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
PEREZ MIGUEL ST. HELENE
REASONS FOR JUDGMENT
André J.
Released: March 7, 2013