CITATION: R. v. DaCosta, 2015 ONSC 1478

COURT FILE NO.: CRIMJ(F) 1017/11

DATE: 2015-04-08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

J. Campitelli, for the Crown

• and -

TOMIKA DACOSTA

D. Bayliss, for the Defence

HEARD: February 3-6 and 9, 2015

REASONS FOR JUDGMENT

HILL, J.

INTRODUCTION

[1] Tomika DaCosta stands charged with unlawfully importing cocaine into Canada.

[2] When the accused deplaned from a flight originating in Jamaica, authorities discovered cocaine in her luggage.

[3] The accused pled not guilty and in her evidence maintained that she was an innocent dupe with no knowledge that she had transported the illicit narcotic into Canada.

FACTUAL BACKGROUND

Tomika DaCosta’s Background

[4] The accused completed high school in 2008. She held part-time employment while in school. Thereafter she worked for about a month in customer service for a luggage company and then for the Credit Bureau of Canada at age 18. After about a year, she returned to school at Sheridan College but quit the office administration course after a week. She was then unemployed for about 6 months.

[5] During this time period, in January of 2010, the accused moved from Mississauga where she resided with her grandmother to live at the home of her half-sister (Nishka) in Cambridge, Ontario. At this point, her long-time boyfriend, Paul, moved in with her. Nishka was living with her two children and boyfriend, Jermaine. The accused described her sibling as sick and in and out of hospital. Paul did not have a driver’s licence and did not drive. From January to May 2010, Paul was unemployed and receiving E.I. assistance.

[6] Sometime in early March 2010, the accused was again employed Monday to Friday by the Credit Bureau of Canada in Mississauga on a probationary contract. As this point, she had owned a 1999 Dodge Neon vehicle for less than a year. The car was not reliable as it broke down from time to time.

[7] According to the accused’s mother, Ms. Marline Ally, in the spring of 2010, the accused was residing in Cambridge, Ontario with Nishka, one of the accused’s father’s (Tazman) daughters from another relationship. To Ms. Ally’s knowledge, residing in a rented townhouse at that location were Nishka and her boyfriend as well as the accused and her boyfriend of a number of years, Paul. The witness could not recall Paul’s surname and was uncertain whether he was employed in May 2010.

[8] According to the accused, there were “issues” at home including Nishka and her boyfriend fighting. This stressed her. When, in mid-May 2010, she missed three consecutive days of work “because of the tension in the house”, she was fired.

[9] On the accused’s evidence, she has never been a drug-user.

The Accused Enters Canada

[10] As of May 28, 2010, Melanie Adams had been employed with the Canada Border Services Agency (C.B.S.A.) for about a year and a half. On May 28, 2010, Ms. Adams was on duty in Terminal 1 of the Pearson International Airport when the accused approached her primary inspection booth at about 7:16 p.m., having deplaned from a flight originating in Montego Bay, Jamaica.

[11] The accused presented her passport and the E311 Declaration Card required from travellers arriving in Canada from a foreign country. The E311 indicated a May 23, 2010 departure from Canada. On the document, the accused had marked the “Yes” box declaring that she was bringing food products into the country. When asked, the accused stated that she was bringing mangoes into Canada.

[12] Officer Adams testified that she had a further discussion with the accused which she recorded in her notebook immediately after dealing with the accused, before calling any other traveller out of line to her booth. These were routine inquiries made of all incoming passengers. When asked where she had travelled to, the accused responded, “Jamaica”. When asked the purpose of her trip and what she did while in Jamaica, according to Ms. Adams, the accused answered that she went to visit her father who lives in Jamaica. Then asked a follow-up question as to what she did in Jamaica, the accused replied that she had “spent time with family” who lived in Jamaica.

[13] Officer Adams testified that although her notes were not a verbatim account, but meant to capture the “gist” of their exchange, she was “very certain” of the accuracy of the notes as to her conversation with the accused. This was the only traveller, up to this point in her shift, for which Officer Adams made notes.

[14] Officer Adams recalled the accused’s demeanour as very friendly.

[15] As presented, the E311 card originally indicated that the value of goods brought into Canada was “$22.00”. In further discussion, the accused volunteered that she wanted to change her E311 card stating that she had purchased a number of bathing suits. As a result, the E311 card was amended to read “$122.00”.

[16] C.B.S.A. Officer Adams informed the court that following about two minutes of interaction with the accused, Ms. DaCosta was released from the primary inspection point.

[17] Questioned in-chief about her exchange with the primary C.B.S.A. officer, Adams, the accused stated, “I don’t really remember too much of the conversation” and could not “recall the specifics of that conversation”. She was not nervous. It is “possible” that she related to the officer that she had spent time with family in Jamaica rather than getting “into the whole detail that there was a state of emergency” in that country.

[18] Questioned about the amendment of her E311 Declaration, the accused gave this evidence:

Originally, I had put $22 for the amount of the liquor that I purchased, and I wasn’t too sure if I was to declare all the items that I bought in Jamaica so I was talking to Adams about it. She said I can change it if I wanted to. I don’t know if she was the one who actually changed it, put the one, ‘cause I told her that I spent about a hundred dollars on clothing and stuff like that, so I’m not too sure if I changed it or she did.

[19] The accused, who had no international travel experience since travelling as a child with her sister and a chaperone, testified that she did not really understand the E311 question as to whether she had exceeded her personal duty free allowance.

The Baggage Hall Stop

[20] On May 28, 2010, C.B.S.A. Officer Kevin Dixon was on duty as a rover at Terminal 1 within the secondary customs area. The witness first encountered the accused at 7:21 p.m. in the International Baggage Hall prior to the exit manned by a C.B.S.A. point officer leading to the public area of the airport. The officer described his function as interviewing travellers arriving from international destinations. One reason the Jamaica flight was selected for passenger interview is because that country is considered high risk for the importation of narcotics. Officer Dixon had had cocaine seizures on earlier occasions relating to Air Canada flights from Jamaica, including about ten days earlier, discovering cocaine dissolved in Stone’s Ginger Wine bottles professionally and mechanically sealed.

[21] Officer Dixon stopped the accused and interviewed her. The officer saw the accused openly carrying a duty-free liquor box clearly marked as from Jamaica. The box drew the officer’s attention to the accused as it identified her as from Air Canada flight #983 from Jamaica. The accused confirmed that she had arrived on an Air Canada flight from Jamaica, having been in Jamaica on a five-day trip visiting her father. When questioned, the accused stated that her uncle purchased her ticket. In examining the traveller’s passport, Officer Dixon noted that it had issued on May 19, 2010, only four days prior to her travel. The accused stated that she had no checked bags.

[22] The accused was in possession of a boarding pass for Air Canada flight #983 from Montego Bay to Toronto with a printed boarding time of 13:10 on the document and departure time of 13:55 p.m.

[23] According to the officer, after being asked what she did for a living, the accused stated that she was unemployed and had recently been fired from her last job. The accused confirmed that she was bringing a food product into Canada. Officer Dixon observed that the accused had checked “No” on the declaration card to indicate that she was not exceeding the permitted duty-free allowance. When questioned, the accused stated that she had three liquor bottles, causing the officer to write “3” with an “x” by the duty-free answer on the E311.

[24] Officer Dixon informed the court that these utterances attributed to the accused were first entered in his notes sometime between 10:00 p.m. and 1:00 a.m. on May 29, sometime after the accused had been arrested. Asked about his certainty as to the accuracy of what he recorded, the witness testified, “I was confident”. Officer Dixon testified that his notes were not a verbatim account but rather a summary of what transpired. Officer Dixon dealt with no other travellers between his interaction with the accused and the writing of his notes.

[25] Officer Dixon was cross-examined at some length regarding his observations of the accused’s demeanour during his interview. Asked as to whether he saw what he agreed were some of the “main” tell-tale signs of suspicion (“nervousness, evasiveness, lack of eye contact, shaking of the hands”), the witness stated that while he had no present recall of such demeanour, and no note of it, something may have been present which, with so much going on, he forgot to subsequently enter the fact in his notes.

[26] In examining the accused’s E311 card, Officer Dixon observed that the primary officer had marked the card for referral of the traveller to customs secondary inspection. The officer noted the time of 7:21 p.m., that the traveller had no checked bags, and circled “the food question” where the accused had marked “Yes”.

[27] Questioned in-chief about her dealings with C.B.S.A. Officer Dixon, the accused testified that she did not remember him by the time of the trial. She accepted that she was interviewed by an officer in the baggage hall but, in her words, “I don’t remember too much about the conversation”.

The Secondary Customs Examination

[28] Having been directed to the secondary examination section, at 7:29 p.m. the accused attended the counter operated by Officer Dixon. The officer noted that the accused was in possession of a purse, a small suitcase and the duty-free box. These items were placed on the secondary examination counter. The accused responded “Yes” to these questions: “Are these your bags? Did you pack them yourself? Do you know what is inside?” Officer Dixon observed no signs of nervousness from the accused.

[29] Officer Dixon testified that when he asked the accused who had purchased her ticket she responded that her “uncle” had. The witness testified that when he asked the accused her uncle’s name, she hesitated for a few seconds and then responded, “Reg”. When asked what her uncle’s last name was, on the officer’s evidence, the accused hesitated again for a couple of seconds before stating that it was not her uncle who bought her ticket but rather “a family friend”. The officer testified that when he asked how long he had been a family friend, the accused replied “about a year”. The witness’ notes of this exchange were also made after 10:00 p.m. and prior to 1:00 a.m.

[30] In cross-examination, Officer Dixon was questioned further on this subject:

Q. Is it possible she may have said “Ralph” and that you just got it wrong?

A. I recalled “Reg” at the time I was making the notes.

Q. Would you agree with me that given the passage of time between her mentioning it and you writing it that you could be mistaken?

A. While writing the notes, if I wasn’t sure I would have just left it out. I made a note that she gave me a name.

Q. Well you may have been sure but … you could have been mistaken?

A. At the time I’m writing the notes, I wouldn’t have wrote it in my notes if I wasn’t sure she stated “Reg”.

Q. But you make mistakes like everybody else?

A. Yes, that’s correct.

[31] Officer Dixon testified that he next questioned the accused about the alcohol she was carrying in the duty-free box marked “Jamaica Rums And Liqueurs”. On opening the box, the officer found three 750 ml liquor bottles. There were two bottles of Stone’s Original Green Ginger Wine and a single bottle of Wray & Nephew White Overproof Rum.

[32] Officer Dixon testified that he asked the accused where the alcohol was purchased. She replied that it was purchased from the duty-free in Jamaica on the day she left that country. Introduced as Exhibit #7, was what purported to be a Blue Mountain Customer Copy receipt then handed to Officer Dixon by the accused from her purse. On the officer’s evidence, he next asked what time the alcohol was purchased with the accused saying that she was unsure but that it was “around 12:00 or 12:30 p.m.”. The officer inspected the receipt and found that it appeared to correspond to the bottles in the accused’s possession for a $21.00 purchase price. The customer’s name on the receipt was “Dacosta/tomika” along with “983” with a printed transaction time of “1:25:45 PM”.

[33] In his in-chief evidence, the witness stated that during his conversation with the accused about the alcohol, across a secondary inspection counter, the accused began to sweat with perspiration on her facial area above her nose between her eyes – he did not notice this previously.

[34] The witness was cross-examined regarding this evidence. He described the sweat as a single bead of moisture, he believed to be perspiration, above the accused’s nose between her eyebrows. The officer agreed that it was “very subtle” and that it would not be at all surprising that the very small accused, having walked some distance with her three receptacles, might be sweating. At trial, the officer stated that he first “noticed” the moisture on the accused’s forehead during his questioning about the alcohol and not during the discussion about the accused’s uncle. With further cross-examination, including upon the witness’ preliminary inquiry testimony, it appeared that the officer could not say precisely when the moisture first appeared.

[35] Officer Dixon’s notes regarding his discussion with the accused about the alcohol were also made between 10:00 p.m. and 1:00 a.m. Asked in-chief about his confidence in the accuracy of his notes about the alcohol interview, the witness stated that he was confident that it took place. The notes were not verbatim but a summary of what the officer could recall.

[36] Officer Dixon decided to test the outside of the two bottles of Stone’s Ginger Wine with an ion scan cloth or swab. It came back positive for traces of cocaine. As the ion scan test is not considered to be a very precise test, the officer undertook a Narcotics Identification Kit (“NIK”) test of the contents of one of the Stone’s Ginger Wine bottles which also tested positive for cocaine. This test was performed within view of the accused no more than 10 feet from her location.

[37] In his testimony, Officer Dixon agreed that he is trained to inspect receptacles which might contain drugs. In his view, the bottles of wine made of green translucent glass appeared normal. The caps appeared machine-installed - to open a bottle, he had to break the metal perforation band on the neck of the bottle and turn the cap.

[38] The officer then, at 7:34 p.m., informed the accused that she was under arrest for attempting to smuggle suspected narcotics into Canada. She was cautioned and informed of her Charter rights. Asked in his in-chief testimony what reaction if any the accused had at this time, Officer Dixon stated that he had no recall of her demeanour at that time. It is, however, an agreed-upon fact that at the point of her arrest the accused began to cry.

[39] The accused does recall being moved to the secondary inspection area for a check of her luggage “or something of that nature”. She was not nervous. She believed this process “was just regular routine”. She observed the officer remove the tape from the liquor box. She believed that the officer checked the bottles first. She “wasn’t really paying attention”.

[40] She was not sweating – she has naturally oily skin. She is unable to recall the details of her discussion with the officer at the inspection counter. In her in-chief evidence, however, the accused maintained that she identified “Ralph”, not “Reg”, as the family-friend purchaser of her plane ticket. She does not know anyone named Reg. She might have described the purchaser out of respect as her “uncle” and may have hesitated in thinking about the surname of Uncle Bobo, as he was also known to her, as she “really didn’t know his last name”.

[41] The accused agreed in cross-examination that C.B.S.A. Officer Dixon was accurate in all other reported details of his conversation with her.

[42] The accused testified that she recalled producing the Blue Mountain receipt to the C.B.S.A. officer telling him of her purchase “twelve thirtyish, somewhere around that time”.

[43] When the accused saw the officer walk away and whisper to someone:

That’s when I was feeling kind of like, like what’s going on, like you know.

…that’s when I was like, okay, maybe something is wrong…

[44] On the accused’s in-chief evidence:

And then he placed me under arrest for, I don’t know what the charges were at that time. I – all I know is that I started to cry and I was asking him that he needs to check everybody’s bottles that came off of the Jamaican flight and I was just in tears. And I was scared and I was frustrated, and I didn’t know what was happening at the time.

I mean, I was upset the whole time. I was scared and I was just frustrated, and I was crying most of the time and….

[45] On the accused’s evidence, she told Officer Dixon that “he needed to check everybody’s bottles that came off of the Jamaica flight”. No one questioned Dixon as to whether this statement was made.

[46] The accused testified that she had no knowledge that there was cocaine in the wine bottles she brought to Canada. She was unaware that cocaine came in liquid not powdered form.

[47] After the accused was arrested and handcuffed, she was placed in a chair to await the attendance of two female C.B.S.A. officers.

[48] A NIK test of the contents of the bottle of rum tested negative for narcotics. Officer Dixon searched the remainder of the accused’s carry-on luggage.

[49] At 7:58 p.m., the accused’s custody was transferred to C.B.S.A. Officers Fletcher and Joukova.

The Personal Search Of The Accused

[50] C.B.S.A. Officer Carolyn Fletcher testified that when she first observed the accused at 7:58 p.m. in the secondary customs examination area, to her recall, there was nothing abnormal about the arrestee’s demeanour. The officer provided a secondary caution to the accused. Biographical data was then obtained from the accused including that the 19-year-old arrestee was 5 feet tall and weighed 80 lb. During this few minutes, the officer was not really focussing upon the demeanour of the accused.

[51] Officer Fletcher escorted the accused to a private search room where the handcuffs were removed and the accused was seated on a bench. The officer made a note that at 8:06 p.m. as the accused was being escorted to the room that she was crying and shaking. As the accused sat on the bench she was seen to be shaking uncontrollably.

[52] Prior to the personal search by the female C.B.S.A. officers at 8:31 p.m., the accused consulted with duty counsel.

[53] Prior to the arrival of the R.C.M.P., Officer Fletcher observed the accused to be calm, seated on the bench with her feet up and hugging her legs.

Seizures Transferred to R.C.M.P.

[54] Constable Chris Whyte of the R.C.M.P. airport detachment took custody of the seizures by the C.B.S.A. from the accused including:

(1) the liquor bottles and duty-free box

(2) Air Canada boarding passes in the accused’s name for her May 23 and May 28, 2010 flights

(3) some mangoes

(4) kiwi fruit in supermarket wrapping with a label of the Westgate Shopping Center and a printed price of 197.99

(5) a grocery receipt with text reading “Westgate Shopping Centre, Montego Bay” with a May 27, 2010 date for the purchase of Kiwi Fruit, Trident Green Apple Fusion and Sorbet Vanilla cups for a cost of $547.89

(6) a receipt with text identifying it as from “Official Bureau de Change/Cambio” at the Sangster International Airport, with the name Tomika DaCosta of 19 Beigle Blvd., St. Elizabeth, for a transaction at 12:59 p.m. on May 23, 2010 for an exchange of $340.00 CAD into $24,497.00 JAM at a rate of $72.050

(7) a second receipt with text identifying a May 28, 2010 12:33 p.m. currency exchange transaction of the Official Bureau de Change/Cambio with $3,837.000 JAM tendered for $48.00 CAD (at a rate of $79.050) by Tomika DaCosta, 169 Vismart Dr., Cambridge, Ontario

(8) a signed document entitled “Sahara De La Mer Resort Hotel, Reading, St. James, Jamaica Registration Form” including the following information: Tomika DaCosta, 169 Bismark Dr., Cambridge, Ont. with cash payment of 4500 for a May 23, 2010 lodging

(9) a piece of paper with the following text printed on it:

19 BEIgle BLv

SANTA CRUZ

ST ELiZABETH

DE LA MiER

AT UNItY HALL

The Cocaine

[55] The contents of the two bottles of Stone’s Original Green Ginger Wine were tested by Health and Welfare Canada. Each bottle contained 415 g. of cocaine dissolved or suspended in amber-coloured liquid.

[56] The price of cocaine in the Greater Toronto area in 2010 was $80 to $110/g. or $1300 to $1400/oz. If the 830 g. of cocaine seized in this case were sold at the gram level the value would be $66,400 to $91,300, and if sold at the ounce level the range of value would be $29,000 to $46,000.

THE DEFENCE CASE

The Accused’s Financial Circumstances

[57] In her in-chief evidence, the accused stated that when she was fired from her job in May 2010 she had no serious debt of any kind. She “had one pay cheque and another one coming at the end of the month.”

[58] The accused was also cross-examined about her financial situation during May 2010. She had “around” $700 in the bank. Her monthly expenses included $270 for auto insurance, $250 rent payment to Nishka, and about $350 toward food, and gasoline for her car, and things at her sister’s home.

[59] Around May 15, the accused received a full pay cheque for “around 700”. Another cheque, expected May 29, would not be a full cheque. The accused gave this evidence:

Q. …you said you had about $700 in the bank? Was that from that pay cheque that you received on May 15th?

A. No. I think I more, like over the time it still accumulates, I don’t spend off everything. I, I believe I had some, some more, but I’m not too sure, like I don’t really…

Q. So that would more – your pay cheque wouldn’t even cover those expenses? Is that fair? You need a little extra money, as well?

A. Correct. Maybe, yeah…

Q. Okay.

A. I’m not too sure though.

Q. And you say you have this extra $700 in the bank?

A. Yes.

Q. All right.

A. I did.

Q. Because you said at one point in your evidence that you had had $700 to take to Jamaica for spending money?

A. Correct.

Q. Okay. So you were going to draw down your account, essentially, to zero it would appear for spending money in Jamaica, is that fair?

A. Yes.

Q. And so in terms of your expenses the following month, if you had drawn your account down to zero, you were going to rely on that cheque, I guess, when you return from your employer?

A. Correct.

Q. And how much would that have been. That wouldn’t have been a full cheque?

A. No. I wouldn’t have. And I really don’t remember how much it was.

Q. Okay. So suffice to say, if the $700 wouldn’t have covered your monthly expenses then the following cheque which wasn’t a full cheque would certainly not have covered your expense?

A. Correct.

Q. June would start and you’d have to pay that $270 for your car insurance?

A. Correct.

Q. And you’d have to pay that $250 towards your rent. You’d have to pay the approximately $350 over the course of the month for your expenses. And, and what I’m suggesting to you is that you wouldn’t have enough money if you took $700 to Jamaica and spent it to cover your expenses in June?

A. That is correct.

Q. All right.

A. I wouldn’t have had enough, but I would have either had my sister or Paul to help me with my expenses.

Q. But you didn’t know, you didn’t have that set up in place, did you? You didn’t have them, you didn’t tell them I’m going to need you in June to, to help cover me ‘cause I’m not going to have enough money to cover expenses. Is that a, is that a conversation you had with them?

A. They already knew that I had los[t] my job. So they knew what my, my financial situation was.

[60] Asked if the $100-plus payment for her rush passport application was covered out of the $700 she had in May 2010, the accused replied, “I probably did, but I’m not too sure if I had more money at the time or not”.

Background to the Jamaica Trip

[61] Marline Ally testified that she separated from the accused’s father, Tazman, in the mid-nineties when he returned to live in Jamaica in the Coopers Hill area of Kingston. The witness informed the court that their two daughters, the accused and Sherika, travelled to Jamaica to visit their father three or four summers. To Ms. Ally’s recall, the accused last saw her father in Jamaica at about age 10.

[62] The accused confirmed that as a child, she had travelled with her sister to the Coopers Hill area of Kingston to visit their father.

[63] On the accused’s evidence, she met Uncle Bobo now known to her as Ralph Fletcher through her boyfriend Paul, who had known him for about a year. She met Ralph Fletcher at his brother’s restaurant, Ire Veg, in Toronto. She was usually with Paul when she saw Fletcher. She had met his children at a park or the restaurant. She had been to Uncle Bobo’s Mississauga condo “[m]aybe twice”. On one occasion, she met his wife at her house in Mississauga. She considered the man to be “a friend”.

[64] The accused was questioned in-chief as to the name by which she knew Ralph Fletcher in 2010:

Q. Now, you, you used the name Ralph Fletcher, is that what you knew him as back in May of 2010?

A. Uncle Bobo is what I know.

Q. Okay. Were you – is that the only name you, you were familiar with him or did you know any part of his name?

A. I knew Ralph but I didn’t know his last name.

In cross-examination, the accused’s relationship with Uncle Bobo in May 2010 was further explained:

Q. ‘Cause this is someone you really barely knew at that point in time?

A. I knew him from about a year at the time.

Q. But was it fair when he said that you maybe talked to him on two occasions, more than just saying, hi?

A. No. I’ve spoken to him many times, many times before that.

[65] Asked in her in-chief testimony why she made a decision to travel to Jamaica in May 2010, the accused stated that she wanted to see her father as well as her grandfather, Uncle Peewee, both of whom were resident in that country. Her grandfather was sick with diabetes and prostate cancer. The accused testified that she also wanted “[t]o see siblings and just have a vacation”. She was thinking of not staying much longer at Nishka’s house.

[66] The accused testified that she wanted to travel to Jamaica with Paul but that his permanent resident card had expired.

[67] In her in-chief evidence, the accused testified that she could not afford to go to Jamaica. She had about $700 for “spending money” but could not afford a plane ticket. In cross-examination, the accused stated that, “I didn’t have the money to pay for the ticket but I had spending money”.

[68] The accused testified that, when asked, her mother was unable to afford to loan her money for airfare to Jamaica.

[69] Ms. Ally testified that in May of 2010 her daughter asked her for money to take a trip to Jamaica. The witness understood that the accused had for some time wanted to visit her father whom she had not seen for a long time, as well as her half-siblings residing in Jamaica. Ms. Ally understood that her daughter did not have a lot of money at this time, having been fired from her job. The witness could not afford to help the accused – she gave her no money toward the Jamaica trip.

[70] The defence called Ralph Fletcher to testify before the accused testified on her own behalf. Mr. Fletcher was born in Jamaica and has resided in Canada since 1987. The 49-year-old Rastafarian described himself as a member of the Bobo Shanti Tribe of which there are 100 to 200 members in the Greater Toronto area.

[71] Mr. Fletcher has a prior criminal record of six convictions between 1990 and 2003 including for assault, aggravated assault and assault with a weapon. There are no drug-related convictions.

[72] Mr. Fletcher described himself as an “elder” in the West Indian community in Toronto for the past 15 years. As such, he was respected by others. He assisted in solving problems between individuals, keeping the peace, mentoring young people and trying to live a righteous and helpful life.

[73] According to Mr. Fletcher, within the black community, you can know someone for years without learning their “right name”. Right names are not used. He was addressed, even by non-Rastafarians, most commonly as Bobo or Natti but also as Rasta, Uncle or Father.

[74] Questioned about his financial situation in 2010, the witness stated that he was earning $50,000 to $60,000 a year working at Norapak. He also had had private business interests since about 2000 importing fruits to Canada from South America and the Caribbean and exporting electronics to Jamaica through Canada from China. The Jamaican end of his business was centred in Montego Bay. He knew many people in that city but also in the 14 parishes across the country. The witness was of the view that in 2010 he had a good financial situation. On a monthly basis, after expenses including for his children, he had about $1500 remaining.

[75] When questioned about his relationship with the accused, it was apparent that Ralph Fletcher was much better acquainted with the accused’s boyfriend, Paul. He met Paul in about 2005 who became a “close associate”. Fletcher provided this additional information:

(1) as of 2010, he had known the accused for about a year or so

(2) he met the accused through Paul

(3) he could not recall where he first met the accused

(4) initially, the witness stated that prior to May 23, 2010, he had only seen the accused on 2 or 3 occasions simply to say “hi” – probably at the Ire Veg restaurant or at a nearby park located at the corner of Jane St. and Eglinton Ave. in Toronto

(5) he thought that the accused and Paul resided together in Brampton or Oakville – they did not know where he lived

(6) in his role as an elder, he had not counselled the accused or given her advice

(7) the witness was of the opinion that the accused would view him as an elder

(8) Paul and the accused knew him as Bobo or Uncle – initially, the witness stated that they did not know him as Ralph and subsequently testified that he was uncertain whether they knew his right name

(9) he knew, in May 2010, that the accused had lost her job

(10) he did have Paul’s phone number but not the accused’s phone number.

[76] Ms. Ally was questioned as to her knowledge of Ralph Fletcher. The witness did not know him – he was connected “to that side of the family”. The witness first heard this person’s name after her daughter was arrested. She understood that Fletcher had been a friend of Paul’s for a long time. Paul called him “Uncle Bubba”. The witness informed the court that in the West Indian community, persons sometimes use the word “Uncle” to refer to an older person who may not be a blood relation. Ms. Ally has no recall of the accused ever mentioning Ralph Fletcher.

[77] According to the accused, on a day in May 2010, she saw Uncle Bobo at the Ire Veg restaurant. Paul was not present. She talked with him about her “life problems”, her job loss, stress at home, her approaching birthday, and her desire for time away to see family in Jamaica, including her sick grandfather. She felt that she could talk to him as he was “a mentor in the community”. On the accused’s evidence, when Uncle Bobo jokingly offered to buy her a plane ticket, she did not take the offer seriously.

[78] The accused testified that “probably like a few days” after her mother declined to pay for her plane ticket, she again saw Uncle Bobo in the park at Jane St. and Eglinton Ave. She was with Paul. There was a gathering of “different Bobos” – Rastafarian families from Uncle Bobo’s tribe. At this site, according to the accused:

Well, we spoke, and I, I guess Paul was the one who said – was asking Ralph if he was serious about buying my plane ticket and I, and I – and he said, yeah, he’ll buy it for me, he has no problem.

[79] On the accused’s evidence, Uncle Bobo did not loan money to her or Paul to purchase airfare for a Jamaica trip. He bought her ticket online. He then provided his personal email address and password so that she could print the plane ticket for herself.

[80] To the accused’s recall, the plane ticket cost nearly $600 which she promised to pay back to Uncle Bobo once she found employment.

[81] In her in-chief testimony, the accused was questioned about her passport:

Q. Okay. At, at the time the plane ticket was printed out, did you have a passport to travel at that time?

A. Yes, I did.

Q. Okay.

A. M’hmm.

Q. At that point how long had you had a passport?

A. It was issued a few days prior.

Q. And how was it, how was it you came to getting yourself a passport?

A. Well, Ralph had told me that he purchased the ticket so I’d even have my passport ready, I had to rush my passport.

In cross-examination, the accused was again questioned about her passport:

Q. All right. And he had made all, he had already made all the arrangements for you to be flying into, that being Montego Bay?

A. Yes.

Q. Okay. And the time that you would depart, the day?

A. Yes.

Q. Okay. And you, I believe, gave evidence that when he made those arrangements you had already obtained a passport, is that fair?

A. Yes.

Q. Okay. Can you remember when you went in and printed that ticket, did you already have your passport or is that something you still needed to get.?

A. I don’t remember but I’m not sure.

Q. All right. And so now that you see that date there, that it was only four days before your departure that your passport was issued. Can you – does that refresh your memory as to whether or not you had a passport when you printed this ticket off of the email address that Ralph had provided to you?

A. It’s possible that I did. I did print the email.

Q. Is it possible…

A. Because…

Q. Sorry. It is possible that you had your passport issued prior to printing this ticket or is that something that might have happened after?

A. It might have happened after because, I mean, he told me that he bought the ticket, but he never, like, provided his email or whatever to – for me to print it off, so I, I think it was, I think it was prior to me…

THE COURT: Sorry, you think what was prior?

A. To me printing the actual ticket.

CROWN COUNSEL: Q. Okay, so when you say, “it was prior”, you mean you got the passport prior to you printing the ticket?

A. Correct.

[82] According to the accused, it took a couple of days to obtain her passport. Because of the rush application, she had to pay over $100.

[83] Questioned as to why Uncle Bobo provided a plane ticket for Montego Bay as opposed to Kingston where her family was located, the accused gave this evidence:

Q. Okay. Did you ever have any discussions with Ralph about whether the ticket would be for Kingston or Montego Bay?

A. Yes.

Q. Okay. Do you know why the ticket ended up being for Montego Bay?

A. It’s the tourist area.

[84] Ms. Ally understood that the accused was flying to Montego Bay, as opposed to directly to Kingston, because the flight was cheaper. She understood that Tazman would pick the accused up in Montego Bay and take her to Kingston for two or three days.

[85] Ralph Fletcher testified that within the month preceding May 23, 2010, Paul spoke to him about borrowing money so that he and the accused could vacation in Jamaica. He loaned Paul $1000 for plane tickets and expenses – he was able to do so without discomfort. He expected the loan to be repaid in a timely way. Fletcher testified that the loan has never been repaid and he has not seen Paul “from then”.

[86] Questioned as to any conversations he may have had with the accused about her trip to Jamaica, Mr. Fletcher initially stated “not really” and “maybe vaguely” and “I don’t remember”. Asked if he assisted the accused with her trip, the witness stated, “indirectly”. Asked if he spoke to the accused before her trip to Jamaica, the witness initially stated that he could not recall when or where. Fletcher denied directly buying plane tickets. When asked if he recalled facilitating the accused buying her plane ticket through allowing her access to his email account, the witness variously responded “not really no” and “possible”.

[87] According to Fletcher, he learned on about May 20 that Paul was unable to take the trip to Jamaica because of difficulties with his documents. He did not speak to Paul about a return of some of the loaned funds. On the witness’ evidence, he understood that the accused intended to visit her father who resided in Kingston.

May 22, 2010

[88] On Ralph Fletcher’s evidence, a friend of his, Soldier, had asked him to take a brand new laptop computer to his son in Jamaica. In answer to this request, he told Soldier to bring the laptop to his apartment as he knew someone who was going to Jamaica.

[89] Ralph Fletcher testified that he did see the accused at his apartment in the evening of May 22, 2010. Paul was there. With the accused agreeing to take the laptop, he gave it to her on this date. He gave the accused a piece of paper on which he wrote the address of the intended recipient of the laptop, “19 Beigle Blv, Santa Cruz, St. Elizabeth”. On Fletcher’s evidence, this location was a three to four-hour drive from Montego Bay on the way to Kingston which was two to three hours distant. Mr. Fletcher variously testified in-chief that it was his expectation that a guy would pick up the laptop from the accused as she didn’t know much about Jamaica or that the laptop would be dropped off. In cross-examination, the witness gave this evidence:

Q. And who was going to pick up that laptop from her?

A. His son.

Q. What was the son’s name?

A. I don’t remember his son’s name, if I knew it at all.

[90] Ralph Fletcher testified that the accused did not stay overnight at his apartment on May 22, 2010. The witness also denied that he drove the accused to the Pearson International Airport the morning of May 23, 2010. The witness informed the court that he did not own a vehicle after his licence was suspended in 1992.

[91] On the subject of telephones, Ralph Fletcher initially stated in his in-chief evidence that he “probably” provided the accused a phone to take to Jamaica. In cross-examination, the witness at first stated that he “may” have given the accused a phone or phones. The witness added that he sends “a lot” of phones to Jamaica. The cross-examination continued:

Q. Did you send a phone with Ms. DaCosta that she was supposed to drop off in Jamaica?

A. Yes, I give her a phone, some phones.

Q. Oh, so you gave her some phones?

A. Yes.

Q. How many phones did you send with her?

A. I don’t remember.

Q. You don’t remember?

A. Yes.

Q. More than one, fair?

A. Fair.

Q. So you send more than one phone with Ms. DaCosta to Jamaica. Where was she supposed to deliver those?

A. She wasn’t going to deliver it. Someone was going to pick it up.

Q. Who was going to pick it up?

A. My brother was to pick it up.

Q. And did he pick them up?

A. Yes, he did.

Q. What’s his name?

A. Derrick.

[92] The accused testified in-chief that she attended Uncle Bobo’s condo on the night of May 22, 2010. She was dropped off by her sister driving the accused’s car. She thinks that because of her mother’s work hours she was unable to drive her to the airport the next morning. A male friend of Bobo’s, who she had not met before, brought over a laptop to take to Jamaica:

The man wanted me to deliver the laptop or someone would either pick it up or it’d be delivered to his son.

[93] Uncle Bobo wrote on a piece of paper “19 Biegle Blv” as “the address for [her] to deliver the laptop” and “De La Mier” as a hotel in Montego Bay which he described as “really nice” and “cheap”. He also provided her a cellphone which would operate in Jamaica. The accused was not questioned about whether anyone picked up phones from her while she was in Jamaica.

[94] On the accused’s evidence, she stayed overnight at Mr. Fletcher’s condo. He drove her the next morning to the Pearson International Airport in his vehicle – “I believe it was a van, I’m not too sure”.

[95] The accused informed the court that she had a small purse, a larger purse, and a small pull-suitcase. She did not check any luggage for the flight – it was all carry-on.

May 23, 2010 – Arrival in Jamaica

[96] The accused testified that her expectation was that her father would pick her up at the airport in Montego Bay and that they would spend a “few nights” there before going to Kingston where she could see her grandfather and siblings.

[97] During the flight, the accused completed a declaration/admission card for entry to Jamaica. In this document, she identified her Jamaican address of destination as “19 Beigle Blvd.” as she did not have her father’s address and, as that was the only complete Jamaican address she had, she “just used that one”.

[98] Also, during the flight, passengers were advised “that Jamaica was under a state of emergency and that there were travel advisories into Kingston”.

[99] It was an agreed fact at trial that on May 23, 2010, Foreign Affairs and International Trade Canada issued a special bulletin advising Canadians considering Jamaica as a travel destination against travelling to Kingston, Jamaica. The advisory was issued due to the possibility of civil unrest as a result of events unfolding in Jamaica at that time. The travel advisory was lifted on June 4, 2010.

[100] When the accused arrived in Montego Bay at about 1:00 p.m., her father was not there to meet her. She was worried. She called her father from an airport payphone. Her father told her that because the roads were blocked he had been unable to get to Montego Bay. He advised that it would be safer for her “to get a hotel”.

[101] At the airport, she exchanged some of her Canadian money for Jamaican currency. To do so, she again used the “19 Beigle Blvd.” address as her Jamaica destination.

[102] The accused testified that she took a cab from the Montego Bay airport to the Sahara De La Mer Resort Hotel arriving at about 2:00 p.m. She paid $4500 JAM for one night’s stay. From the hotel, she phoned her mother and Paul and explained the situation in Jamaica. She also phoned Uncle Bobo to tell him where she was and “because I did have the laptop that he wanted me to deliver whoever was going to pick it up”. In this or another phonecall with Bobo, “he said he would call them and have somebody call them or something like that”. The accused recalls that she took a cab to go and get some food as the hotel had no restaurant.

[103] Ms. Ally testified that, from time to time, she spoke to the accused in Jamaica who kept her informed of what was going on. When she heard on TV about the security situation in Kingston, Ms. Ally telephoned Tazman. It was Ms. Ally’s belief that the cost of her daughter’s accommodation at a hotel during her stay in Montego Bay was “part of her arrangement” probably paid by the same person who paid for her plane ticket.

May 24 to 28 – the Stay in Montego Bay

[104] Because she did not want to spend all of her money travelling in cabs to get food, the accused decided to switch hotels to seek accommodation where the lodging also had eating facilities. In the afternoon of May 24, 2010, she took a cab and checked into the Palms Bay Guest House Hotel in Montego Bay. The hotel was recommended to her by a taxi driver as cheap and having good food. She daily phoned Paul as well as her father from whom she received updates about the situation in Jamaica. Asked in-chief whether she spoke as well to Uncle Bobo, she replied: “Maybe… I’m not too sure though”.

[105] To the accused’s recall, she spent the day at the hotel. She ate and had a few alcoholic drinks at an outdoor bar.

[106] The accused testified that during the afternoon of Wednesday, May 25, she received a phonecall from someone named Peter who she understood to be a friend of Uncle Bobo’s. She had never met or spoken to him before. Asked in-chief whether she was expecting his call, the accused responded, “No, I wasn’t”. The witness then stated, “I forgot”, and proceeded to testify that Bobo had told her that he would have someone “check up” on her. Her father had said something similar.

[107] According to the accused, she asked Peter if he could take her out to a restaurant so that she could “eat some shrimp and lobster and all that good stuff”. They went out to a restaurant. They may also have gone to a Montego Bay beach for a couple of hours. When Peter dropped her back to the hotel, he said that she could call him if she needed anything.

[108] Cross-examined about Peter, the accused gave this evidence:

Q. And so didn’t it concern you at all that you hadn’t met this fellow, and you were going to be spending time with a, a stranger?

A. You’re right, he was a complete stranger and I did have my concerns, but I trusted Ralph so I didn’t have an issue…

Q. Okay. So you see him everyday after the 25th?

A. Yes.

Q. And he takes you around and drives you places?

A. Yes. I felt comfortable with him so…

Q. And, and he’s just doing this because he’s a nice guy and he knows Ralph?

A. He was a nice guy and I mean, I guess, he wasn’t working or anything so he didn’t have any problems. He was just basically on call anytime I needed him.

[109] Initially in his in-chief testimony, when Ralph Fletcher was asked whether he spoke to the accused when she was in Jamaica, the witness responded, “I don’t remember”. When the question was repeated, he stated, “possible… oh yah”. Fletcher went on to state that when he learned that the accused was stuck in Montego Bay because of events in Kingston, he told her to stay at the hotel in Montego Bay, the name of which he had written on the same piece of paper with the Beigle Blv. address. At trial, he could not recall the name of the hotel.

[110] In cross-examination, when it was suggested to Fletcher that the accused had phoned him from Jamaica seeking assistance, the witness stated, “yah, I guess so”. He guessed that he received a call for help as the accused knew he was from Montego Bay. On Fletcher’s evidence, he then contacted someone in Montego Bay to tell him where the accused was staying and to assist her in getting a hotel. Fletcher acknowledged knowing persons in Montego Bay named Peter. At trial, he claimed to have no recall who he contacted to help the accused.

[111] On the accused’s evidence, on Thursday, May 26, she went to Negril. Peter called her and invited her. He picked her up in the afternoon and then a woman and her daughter. They got some food and went to the beach. To the accused’s recall, she was driven back to her hotel arriving at about 6:00 p.m. In her evidence, the accused stated: “I think I did tell Peter that I wanted to go shopping, if he could bring me shopping for the next day” so that she could buy shoes and bathing suits.

[112] On May 27, Peter came to pick her up early, also described as “probably around 11:30”. She was taken to a couple of shopping locations where she purchased clothing (white pants, purple tank top, a shirt), some bathing suits, and some fruit to take home. When she spoke to Peter about buying alcohol, he told her to buy duty free at the airport. She is unsure whether she told Peter the type of alcohol (Stone’s Ginger Wine, Wray & Nephew rum) she intended to purchase before leaving Jamaica.

[113] Once back at the hotel, by later afternoon, the accused went down to the bar and had “a few drinks”. Peter had agreed to drive her to the airport the next day.

[114] On the accused’s evidence, she first tried Stone’s Ginger Wine at Nishka’s home. She fell in love with it and she and Paul finished her sister’s bottle. Paul liked to mix blended fruit with Nishka’s Wray & Nephew rum – they had consumed about half of Nishka’s bottle.

[115] In cross-examination only, the accused was questioned about transfer of the laptop:

Q. Well, let’s get to that laptop because, in fact, I don’t think we ever heard in your evidence what happened to that. You called Ralph about it all the time when you’re in Jamaica, is that fair?

A. Yes.

Q. And we still don’t know where that laptop ended up. Where did it end up?

A. A lady came and picked it up at Palms Bay Guest House.

Q. A lady?

A. M’hmm.

Q. Okay. She picked it up, where, sorry?

A. At Palms Bay Guest House.

Q. The second hotel?

A. That is correct.

Q. And when did that happen?

A. I don’t know the exact date, but…

Q. Was it the day that you went to the beach?

A. I really don’t know, but I know that she came and picked it up, I’m not too sure what day. It could have been on the Thursday, I, I, I really don’t know.

Q. So this laptop was so important that you were in touch with Ralph the entire time you were in Jamaica about whether someone was coming to pick it up, and now you can’t even tell us what day it’s been picked up?

A. I don’t remember, it’s been four years. It’s been over four years, I don’t, I don’t know.

[116] The accused was cross-examined respecting her spending in Jamaica. As to the money taken:

Q. Well, do you recall how much money you took to Jamaica with you?

A. Yes, but I, I mean, I, I don’t remember. I mean, I think it was around 700…

[117] The accused agreed that she exchanged $340 Canadian dollars on May 23, 2010 for $24,497 Jamaican currency receiving $48 Canadian back on May 28 when she turned in her remaining $3,837 Jamaican currency. The accused was cross-examined as to how much Canadian money she still had after the May 23 exchange, she replied, “around 300 and some, I’m not too sure though”.

[118] The accused paid to use Uncle Bobo’s cellphone while in Jamaica:

Q. How much was it, how did it cost you to pay for that phone while you were in Jamaica?

A. I don’t remember the exact, I, I don’t remember in Jamaican currency, I don’t, I don’t remember.

Q. Okay. ‘Cause this is still coming out of that $700, right?

A. Correct.

Q. Okay. Do you have an approximate value as to how much it cost you to use a phone in Jamaica?

A. I really don’t, I really don’t know at this present time, I don’t know.

Q. All right. So while you’re in Jamaica you attend some sort of a retail location and purchased minutes and placed them on this phone?

A. That is correct.

Q. All right. And you can’t remember how much money you paid to place minutes on this phone?

A. No, but I’m pretty sure it wasn’t a lot, I mean…

Q. How many minutes did you put on it?

A. Oh gosh, I don’t remember.

Q. Right. ‘Cause you’re making a lot of calls from Jamaica, I’m assuming you’re using the phone?

A. Correct.

[119] The accused agreed in cross-examination that she was responsible for all her expenses while in Jamaica. She did not use a credit or debit card. As to her hotel costs:

A. I had money to pay for my hotel.

Q. Do you remember how much, approximately your hotels cost you each night you were in Jamaica?

A. In the conversion, I don’t know, but I mean, I’m not too sure.

Q. Okay. And you didn’t – you weren’t paying for things in Canadian?

A. I believe I did have to at the second hotel, but I’m not too, I don’t remember.

Q. You don’t remember whether or not you had to pay in Canadian dollars at your second hotel?

A. I believe it was less expensive.

Q. Okay. How much was it?

A. I don’t remember and I thought I had the receipt, I, I, I don’t remember how much it was.

Q. Okay. So we can’t even, we can’t even determine an approximate value, was it close to $4500 Jamaican?

A. Honestly, I could not tell you, but I know I was able to cover it with my own expenses.

[120] It was suggested to the accused in cross-examination that she did not have enough funds on her own to pay for such things as hotels, phonecalls, taxis, food, liquor and shopping and that she was being funded by a Jamaican contact:

Q. All right. So I’m going to suggest to you ma’am, that you did not have enough money with you to cover all your expenses.

A. Yes. I did.

Q. Right. And I’m asking you to specify, you know, how you were covering those expenses, then, please, because I’m, I’m not understanding how that’s possible. So you tell me what things were costing and how you were able to pay for them using $640 Canadian over the five nights you were there?

A. Honestly, I don’t remember the rate of the second hotel. I don’t remember how much my food costs and I don’t remember how much the drinks cost, but I know that I was able to cover it.

Q. I’m going to suggest to you, you don’t remember how much anything cost because you weren’t paying for it?

A. I was paying for everything.

[121] When the accused’s purse was returned to her after she received bail, there was “probably just about 200” dollars in it according to the accused.

Departure from Montego Bay

[122] To the accused’s recall, Peter picked her up at the hotel on May 28 “a few hours” before her “1:00 p.m.” flight, also described as getting to the airport at 11:00-11:30 a.m. Peter did not come into the airport with her.

[123] The accused attended the Air Canada check-in counter and received her boarding pass. She did not check any luggage. She next went through the security check-point to the secure side of the airport. She went through a number of stores. She bought “a mixed tape” at a CD store. In the accused’s words, “I didn’t buy something from every store”.

[124] The accused testified that she wanted to replace her sister’s bottle of Stone’s Ginger Wine and to get a second bottle for herself. She saw a liquor store but the store was “packed” with a long lineup so she continued shopping.

[125] She came to another duty-free liquor store at about 12:30 p.m. There were shoppers in the store but it was less busy with only “a little lineup”.

[126] She picked two Stone’s Ginger Wine bottles from a store shelf and placed them on the cashier’s front counter. When the cashier suggested that the liquor could be boxed up for her if she had a third bottle, the accused “browsed around some more” and selected a bottle of Wray & Nephew rum. Other shoppers were in the store purchasing alcohol and cashing out. The accused gave this evidence:

Q. But those bottles are, are sitting on the counter with woman at the duty free?

A. That is correct.

Q. Okay. She doesn’t go off into a back room or anything of that nature?

A. Not while my back was turned, I believe she was still there.

Q. And when you brought the bottle of rum, you say back towards the counter, the Stone’s Ginger wine are now in the box?

A. That is correct.

[127] On the accused’s evidence, the cashier placed the third bottle in the 4-bottle-sized box and sealed the box with tape. After producing her passport and boarding pass, she “cashed out” paying for the liquor with Jamaican currency. According to the accused, the time of 1:25 printed on the Blue Mountain receipt is incorrect as her boarding time was 1:10 p.m.

[128] On the accused’s evidence, before returning to Canada she exchanged her remaining Jamaican currency back to Canadian dollars. This was about five minutes after buying the liquor and about 20 minutes before boarding her flight. During this 20-minute period, she went to the airport washroom for four minutes at most. She left her luggage and the duty-free liquor box on the floor outside the washroom stall. Asked if she could see her items, the accused testified: “Only from the bottom” but not the whole. Asked in-chief whether her items had been interfered with, the accused stated:

Q. As far as you know was anything tampered with or moved that you, you, you can recall?

A. Not that – from what I remember, no, I don’t, I don’t remember.

THE COURT: I’m sorry, I can’t hear you.

Q. Sorry, not from what I remember. I, I don’t know.

[129] In cross-examination, the accused stated:

Q. And you talk about being in the washroom and leaving the box sort of outside the stall?

A. That is correct. I couldn’t fit everything into the stall with me. It, it’d just be too much.

Q. Right. But it was taped so in terms of someone tampering with it, you didn’t see any evidence of the tape being compromised or someone have ripped open the box while you were in the washroom?

A. I mean, I, I wouldn’t have noticed, I mean, it just looked the same box to me. It was sealed so I mean, I, I didn’t notice anything tampering or anything.

Q. Right. So you didn’t, you didn’t notice tampering, you didn’t notice the tape had been destroyed or anything like that nature?

A. No.

Q. And you had that box in your custody from time that you leave that duty free store until the time that you board the plane save and except for that time which is outside the stall there when you go into the washroom?

A. That is correct.

The Pick-Up in Canada

[130] Questioned about her plans for her return to Cambridge on her return to the airport in Canada, the accused stated in her in-chief evidence that she wanted her mother or her sister to come and pick her up. But neither were able to:

Q. Just let me stop you there for a second. Had – when did you speak to your mom about that?

A. I believe that was prior to my – I think, I’m not too sure. It could have been the same day, I’m not too sure though. I think it was the same day ‘cause Paul was telling me that my car had broken down. So I think it was the same day, I’m not too sure though.

Q. Okay. You, you, spoke to your mom, you, you think it may have been the same day, on the 28th, she indicate[d] she couldn’t get you?

A. Correct.

Q. All right. What about – you mentioned something about your sister, tell us about your sister?

A. My sister drives, and she has her licence, but she would have used my car to pick me up.

Q. Okay. And what do you mean when you say, “she would have used your car”? Do you, do you....

A. My car broken down so she couldn’t get me.

Q. How do you know your car was broken down?

A. I spoke to Paul, yeah, I spoke to Paul the same day, I think in the airport when I was to about to fly I spoke to him and he was telling me that my car had broken down.

Q. Okay. So what did you, what did you do, then, after you spoke to Paul, and after you spoke to, to your mom in terms of plans for getting picked up at the airport in Canada?

A. I had asked Ralph if he could pick me up?

Q. Okay. Do you remember when you spoke to Ralph about that?

A. It had to be on the same day.

Q. On the 28th?

A. Yeah.

Q. So what arrangement was made?

A. I asked him if he could pick me up, he said he wasn’t busy, so he could come get me, he had no issue with that.

Q. Okay.

A. M’hmm.

Q. So then as far as you knew when, when, as far as you knew when you arrived on the Canadian side, Ralph was going to come and pick you up?

A. That is correct.

[131] The accused testified that prior to May 28, there had been no plan to be picked up at the airport by Uncle Bobo nor any arrangement to see him at any particular date after returning to Canada.

[132] To Marline Ally’s recall, her daughter was to return to Canada from Jamaica on May 28 as there was a party scheduled for the following day to celebrate the accused’s birthday. The witness testified that prior to her daughter leaving for Jamaica, the accused asked if she would pick her up from the airport on her return. She agreed. However, when her shift work for May 28 had her working until 10:00 p.m., she was unable to keep this commitment. She related this information over the phone to the accused when she was in Jamaica.

[133] In his evidence, Ralph Fletcher stated that he did not attend the airport on May 28, 2010 to pick up the accused on her return from Jamaica. There was no plan of this sort. In cross-examination, Mr. Fletcher stated that there was no plan or arrangement for the accused to come to his apartment after her trip. If he were to see her, it would be a chance meeting.

[134] Ralph Fletcher testified that he did not request Paul or the accused to bring back Stone’s Ginger Wine for him from Jamaica. The witness, who estimated that he had been in the Sangster International Airport in Montego Bay on more than 100 occasions, with a frequency of every other month up to three times a month, testified that he knew no one employed at the airport and was unfamiliar with the Blue Mountain duty-free store or other airport shops although he had on occasion purchased duty-free alcohol to bring to Canada.

Re-paying Uncle Bobo

[135] Questioned in-chief about re-payment of her debt to Uncle Bobo, the accused stated that she “always wanted to pay him back” but that every time she tried to look for him, she “didn’t see him around” perhaps because he was at times in Jamaica. His phone number had changed. The accused recalled that on one occasion after her arrest she saw Bobo at the park but he “kind of took off” after which she did not see him again. Asked when this occasion was, the accused testified, “I really don’t know. I really don’t know.”

[136] According to the accused, to pay Bobo back she got in contact with him “[p]robably sometime 2012 or 2013” when she “hacked into his Facebook using the same password” which was “Blessed”. The accused provided no further details about this contact.

POSITIONS OF THE PARTIES

The Crown

[137] It was submitted that in May of 2010, the accused was experiencing tough financial circumstances. Her living situation was not ideal. She had lost her employment. She had expenses. She had no savings. She could not afford a trip to Jamaica. Nor could her mother. The accused made a deal for a vacation and very likely a drug courier fee.

[138] On the prosecution theory, the accused was a knowing participant in the cocaine importation scheme, a plan perhaps facilitated by Peter, which also involved Ralph Fletcher and his associates in Montego Bay. The accused’s motivation was a free trip to Jamaica and very likely courier compensation once the cocaine was imported.

[139] Ms Campitelli submitted that Ralph Fletcher’s account of the loan for the Jamaica trip made little sense. The details were at odds with the accused’s version in terms of the amount and who he gave the loan to. On the evidence, the two were virtual strangers, having only seen each other two or three times prior to the Jamaica trip. To the extent that Fletcher financed the trip, he expected something in return.

[140] It was submitted that the laptop story also made no sense as a link to explain the Beigle Blv address. The accused could not provide a coherent account of what was to be done, and was done, with the laptop.

[141] Crown counsel maintained that the accused did spend the night of May 22, 2010 at Fletcher’s apartment as the plan unfolded.

[142] While there may have been an intention on the accused’s part to see her father in Jamaica, blocked by the emergency in Kingston, the purpose of the trip was to import cocaine.

[143] The accused had a cellphone from Fletcher to main contact. The hotel information written on paper by Fletcher were her instructions where to stay in Montego Bay. Fletcher’s associate, Peter, was not taking the accused here and there out of the goodness of his heart. He was part of the smuggling operation.

[144] Crown counsel submitted that the accused’s expenses were being paid while in Jamaica – her attempt to account for five days’ hotel stay, food and alcohol, shopping, and a phone card out of the funds she claimed to have, simply did not add up.

[145] Ms. Campitelli submitted that the accused’s story of randomness cannot be accepted – that the accused simply picked up two cocaine-laden bottles off the shelf of an airport duty-free store, capable of being selected by any traveller, with no evidence of a real opportunity for post-purchase tampering with the purchase, destined to be delivered to, and consumed by, her sister with the potential for lethal consequences.

[146] Crown counsel noted that the prosecution need not demonstrate the precise manner by which the accused came into possession of the two wine bottles on the secure side of operations at the Sangster International Airport. Very likely, the transaction involved an insider in the Fletcher group within the airport working with the accused as the final Jamaican link. The receipt, a clever cover of sorts, could easily have involved the purchase of two legitimate bottles then switched out for the bottles outfitted with the cocaine.

[147] Crown counsel submitted that the accused’s evidence was implausible. It was submitted that a shipment of the value here would not be randomly placed into the custody of an uninvolved third party traveller risking loss. In addition, on the accused’s version, there was no sensible exit strategy for the drug importer hierarchy. There had been no plan to meet Fletcher to give him anything. The wine was to be given to the accused’s sister. How would the valuable cargo be acquired by the back end in Canada?

[148] It was submitted that the evidence of the C.B.S.A. witnesses should be accepted. On Officer Adams’ evidence, the accused lied about having spent time with her family in Jamaica. She did not. Officer Dixon’s recollection, and in turn his notes, were accurate. He made no mistake about the accused falsely stating “Reg” as the purchaser of her airplane ticket. Officer Dixon observed the accused to be perspiring when he questioned her about the alcohol. The evidence of the accused crying on arrest is equally capable of the interpretation that she knew the jig was up.

The Defence

[149] The defence conceded that the accused had control of the wine bottles. It was submitted that the Crown has proven little else and certainly has not overcome the evidence that the accused was herself victimized as an innocent dupe, in particular considering her own testimony and the duty-free receipt for her legitimate purchase at the airport store.

[150] Mr. Bayliss argued that the evidence discloses the existence of a very sophisticated drug operation. The cocaine of not insignificant value was suspended in liquid in wine bottles. A trained C.B.S.A. officer at the airport could see no evidence of tampering with the subject bottles. What is clear is that the caps of the bottles were professionally and machine-closed identical to retailed bottles not tampered with. It was submitted that an operation of this type, experienced at deception and avoidance of customs interdiction, would certainly have the resources to employ persons on either side of the accused’s flight.

[151] It was submitted that even with the accused having control of her luggage, it would only take a second or two at the Sangster International Airport, whether in the duty-free store or at some other point on the secure side of airport operations prior to the accused disembarking in Canada, for a switch of bottles to take place by an insider on the secure side of operations at the airport. At the duty-free store, to make the purchase, the accused’s identity would be known and her flight number from her presented travel documentation. That information could then be easily transmitted to the Canadian contact.

[152] The defence emphasized that the receipt produced by the accused to Officer Dixon circumstantially supports her account that she made a legitimate purchase of the wine bottles.

[153] Mr. Bayliss agreed that the drug importation operation had to have an exit plan to avoid its cocaine ending up in Cambridge, Ontario. The defence did not suggest in questioning or submissions that Paul was involved in the importation crime. It was submitted that anyone at the Pearson International Airport could see and identify the Jamaican duty-free box – “someone could just take the box” and walk away – it would be “very easy” for someone to grab the box accomplishing this even without switching duty-free boxes – luggage can disappear when a traveller turns her back for only a few seconds. It is said that having the box just disappear at a point would be easy to accomplish for professional criminals.

[154] It was submitted that Ralph Fletcher’s loan was not such a big deal – it was a relatively small amount of money. His generosity, including to someone such as the accused, could be explained by his long-standing friendship with Paul, the accused’s boyfriend. “[C]learly Fletcher was involved” – he was well-connected in Montego Bay. He has a criminal record. His stated denial of familiarity with the duty-free shops at the airport in Jamaica was untruthful. He made himself scarce after the accused’s return to Canada.

[155] Mr. Bayliss submitted that the existence of a third party suspect undermines the notion of exclusive opportunity – indeed, Fletcher’s involvement on its own is capable of raising a reasonable doubt.

[156] It was submitted that Fletcher knew where the accused was staying in Montego Bay. His associate, Peter, became involved to handle aspects of the plan. There would seem nothing unusual to the accused for his hospitality when asked by a Canadian to help her out in her predicament in Jamaica. If the accused was in on the plan, why would she mention Peter at all in her testimony?

[157] Mr. Bayliss underlined that a significant aspect of the context in this case relates to the vulnerability of the accused herself. She was a target to be easily manipulated. She wanted to go to Jamaica to see her father. But for the unexpected emergency situation in Kingston, this would have occurred. There was no financial motive to be involved in drug importation – the accused had never experienced difficulty finding employment. The accused was a young and inexperienced international traveller. The accused was not even aware that cocaine came in liquid form.

[158] It was submitted that the accused’s trip to Jamaica was no secret. For example, her mother knew of the trip. Mr. Bayliss submitted that the accused’s account of the monies she spent in Jamaica is not mathematically unsound. The accused reasonably accounted for the laptop pickup and the Beigle address.

[159] The defence noted circumstances arguably inconsistent with knowing drug importation including that the accused imported fruit and marked her E311 card to this effect and brought into Canada a number of alcohol bottles exceeding her permissible duty-free allowance – two factors likely to attract C.B.S.A. attention to a traveller as was the accused’s amendment of her E311 card in the presence of C.B.S.A. Officer Adams of the value of goods bought abroad and imported. The wine bottles were not concealed in the carry-on piece of luggage – they were in a highly visible duty-free box openly carried and marked in such a way as to clearly identify the accused to C.B.S.A. as a passenger for AC flight #983 from Jamaica. The accused admitted her unemployment status and did not appear nervous at critical points in the airport re-entry process. The perspiration evidence was ambiguous. Not during the ion and NIK testing, but on arrest, when the accused realized that she had been set up, she began to cry on realizing that she had been set up.

[160] Mr. Bayliss questioned whether Officer Adams actually made contemporaneous notes or only after notification of the accused’s arrest. In any event, the reported utterance of the accused of spending time with family in Jamaica was a short-form response adequately explained by the accused. Officer Dixon made his notes hours after relevant events – he could well have misremembered “Reg” when the accused actually stated “Ralph” in reference to Fletcher who was known as Uncle within the West Indian community in Canada. Any hesitation about a surname was understandable as the accused did not know Bobo’s last name.

[161] It was submitted that in her testimony the accused put her character in issue. She was a “pretty straight-laced” person with good school efforts and employment history. It was submitted that her evidence, which was not argumentative or evasive, ought to be accepted or at a minimum contribute to the existence of a reasonable doubt.

ANALYSIS

Governing Principles

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

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

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

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

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

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

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

[167] 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 (affd [2013] 3 S.C.R. 726). However, a trier’s subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: R. v. T.M., 2014 ONCA 854, at para. 64; Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot suffice to found a finding of guilt: R. v. K.(A.) (1999), 1999 CanLII 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.

[168] 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.

[169] 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 while always having regard to the scope of inferential bridges or gaps the trier is invited to make.

[170] 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 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70. Financial pressures, not economic status, may amount to a motive to become involved in a profit-motivated crime: R v. Mensah (2003), 2003 CanLII 57419 (ON CA), 9 C.R. (6th) 339 (Ont. C.A.), at paras. 7-13 (leave to appeal refused [2003] S.C.C.A. No. 207).

[171] In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative “innocent” explanations other than the prosecution’s theory of guilt, the court is not limited to inferential explanations based on “proven facts” but rather may take into account, as to whether reasonable doubt exists, alternate rational possibilities grounded in the evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 57-8; Fontaine v. Loewen Estate, 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, at para. 33; R. v. Bui, 2014 ONCA 614, at paras 22-9; R. v. Campbell, 2015 ABCA 70, at paras. 51-3; R. v. Dipnarine, 2014 ABCA 328, at paras. 22-28; R. v . Pryce, 2014 BCCA 370, at paras. 6-12; R. v. Maxie, 2014, SKCA 103, at para. 35; R. v. Robert (2000), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.), at paras. 14-25.

[172] Further, while there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences : R. v. Mufuta, 2015 ONCA 50, at paras. 22, 26, 47-9; Griffin, at para 35; R. v. C.(D.) (2012), 2012 SCC 48, 290 C.C.C. (3d) 64 (S.C.C.), at paras. 25, 28; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont.C.A.), at paras. 35, 42.

[173] The following general principles apply to proof of unlawful possession of an illicit substance or contraband:

(1) 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. Midwinter, 2015 ONCA 150, at para. 12; R. v. Robinson, 2009 ONCA 626, at para. 22; R. v. Chalk (2007), 2007 ONCA 815, 227 C.C.C. (3d) 141 (Ont. C.A.), at para. 19; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 125 C.C.C. (3d) 552 (Ont. C.A.), at paras. 10-11

(2) 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; Midwinter, at para. 14; and:

On 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)

(R. v. Morelli [2010] 15 S.C.R. 253, at para. 16)

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

(R. v. Eastgaard, 2011 ABCA 152, at para. 9)

(3) 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 refused [2011] S.C.C.A. No. 452)

(4) in crimes of unlawful possession, it is “not necessary for the prosecution to prove the required knowledge by direct evidence…it could 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); see also 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); R. v. Anderson, 1995 CanLII 1338 (BC CA), [1995] B.C.J. No. 2655 (C.A.), at paras. 15-16 – frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.), at para. 1; R. v. Ali, 2008 ONCA 741, at paras. 3-7

(5) as summarized previously, the essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty and “the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt”: R. v. Griffin; R. v. Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4 – not only must circumstantial evidence be viewed as a whole and not each piece individually (R. v. Warkentin et al. (1976), 1976 CanLII 190 (SCC), 30 C.C.C. (2d) 1 (S.C.C.), at p. 20), but also all competing explanations or inferences, not describable as speculative or unreasonable, must be considered: Figueroa, at paras. 35, 42

(6) a fact-dependent circumstance which may contribute to common-sense inference-drawing in an unlawful possession case is the value of the item/substance which is in the custody of the accused but which, in light of the accused’s denial of knowledge, is said to be the property of a third party:

The trial judge gave particular weight to the fact that the appellant was brought to the apartment and allowed to remain there by Rudder, the tenant of the apartment who had knowledge and control over the large quantity of drugs and cash located in the apartment. The trial judge drew the inference that Rudder would not leave such a large quantity of drugs and cash unguarded (cocaine and marihuana having an aggregate street value of over $1,000,000 and approximately $60,000). The trial judge drew the further inference that, given the circumstances of the appellant's arrival at the apartment and his presence in the apartment with this quantity of the drugs and money, the appellant was entrusted to be the keeper of the drugs.

In our view, the inferences drawn by the trial judge were supported by the evidence.

(R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4)

As to the second ground of appeal, I think evidence of the retail value of the drug was relevant to the main question that the jury had to decide, namely, whether or not the respondent knew that the substance he imported was a narcotic. I think this evidence was so relevant because it could, in the opinion of the jury, tend to satisfy them of the existence of that knowledge.

(R. v. Blondin (1971), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), per McFarlane J.A. at p. 121 (affd 1971 CanLII 1411 (SCC), [1971] S.C.J. No. 42))

The jury’s finding that Hakimi was aware of the nature of the contents of the bag and thus the conspiracy’s objective rests primarily upon inferences drawn from the totality of the evidence. These inferences, which are of a type that our Court has previously and repeatedly endorsed, are as follows: First, drug dealers would be very unlikely to confide hundreds of thousands of dollars’ worth of drugs to the sole control of a person who was not a trusted member of the conspiracy…

In several instances, our Court has considered the inferences a jury is permitted to draw from evidence that a conspiracy entrusted a defendant with valuable contraband.

…in United States v. Sisca, 503 F.2d 1337 (2d Cir. 1974), we rebuffed a sufficiency challenge to a drug conspiracy conviction in the face of a defendant’s claims of ignorance, observing in relevant part, “[T]he suggestion that members of a conspiracy would entrust $60,000 in cash and a large quantity of narcotics to one who was not a full partner strains credulity.” Id. at 1343: see also United States v. Ramirez, 320 Fed. App’s 7, 10 (2d Cir. 2009) (summary order) (“[C]ommon sense and experience would support an inference that the ‘principals in [a large] conspiracy would not have trusted an outsider [ ] with no knowledge of their criminal purpose[] to transport’ hundreds of thousands of dollars in cash and drugs.” (quoting Huezo, 546 F.3d at 182) (alterations in original)); cf. United States v. Aleskerova, 300 F.3d 286, 293 (2d Cir. 2002) (“A defendant’s knowing and willing participation in a conspiracy must be inferred from … evidence that [he] possessed items important to the conspiracy.”).

It may be possible to imagine a circumstance in which an experienced drug smuggler could decide to entrust a million-dollar package of contraband to an unwitting courier. There is, however, simply no evidence that the conspiracy at issue in this case ever operated in this fashion. And the theoretical possibility that it did so on April 16 does not preclude the jury from drawing the inference – in a setting that includes corroborative testimony and circumstances – that an individual who accepts sole custody of valuable contraband was a trusted member of the conspiracy, with knowledge of the contraband’s true nature.

(footnotes omitted)

(United States v. Anderson, U.S.C.A. 2d Cir. (March 4, 2014; No. 11-5364-cr), at pp. 27-30, 36)

See also R. v. McIntosh, [2003] O.J. No. 1267 (S.C.J.), at paras. 45-6; United States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997); United States v. Uriostegui-Estrada, 86 F.3d 87, 89 (7th Cir. 1996).

Fact-Finding in This Case

[174] At a superficial level, it might be said that a conclusion of guilt could be arrived at because Ms. DaCosta entered Canada with cocaine in wine bottles under her control. That would of course ignore a discriminating examination of the whole of the evidence, including her denial of knowledge of the liquid cocaine in those receptacles.

[175] Equally unacceptable would be a conclusion that a reasonable doubt exists simply because the accused has denied knowledge and produced a receipt circumstantially suggesting that the wine bottles were purchased at a duty-free liquor store in the Montego Bay airport on the date she departed Jamaica on a return flight to Canada. This approach too would fail to have regard to the quality of the evidence and all the surrounding circumstances.

[176] Prosecutions alleging international shipment of illicit narcotics tend to follow a pattern in circumstances where the defence to unlawful importation into Canada is that the accused is an innocent dupe without knowledge that the prohibited substance is in a receptacle or item otherwise under their control when crossing the border — a pattern, in the sense that the Crown, charged with the overall burden of proof, advances circumstantial propositions grounded in the evidence both to the accused where she testifies, and in turn to the trier of fact, which it maintains assist in establishing proof beyond a reasonable doubt. These circumstances, often helpful in making sense of the accused’s version of events, but which the accused has no obligation to answer, may generally be summarized as follows:

(1) How did the exporter of the cocaine in the foreign jurisdiction put the cocaine under the blind courier’s control without her knowledge?

(2) What risk was the illicit drug distribution network/organization assuming by surreptitiously surrendering control of the cocaine to the blind courier?

(3) What could the Canadian connection/importer’s exit strategy have been in terms of ending the blind courier’s control and reacquiring full possession of the cocaine for the organization?

[177] Most persons when travelling know what they are carrying and the contents of those receptacles. The first issue, putting the drugs into the hands of a courier without her knowledge, frequently engages careful assessment of the weight and bulk of the narcotic, the nature of the concealment and the relative detectability of that consignment, and any relationship which might exist between the courier and the exporter and/or with the intended recipient of the article containing the drug. All relevant circumstances can be considered including whether the relevant receptacle was unattended or out of the accused’s control for a time or whether the facts properly raise a basis for an inference of wilful blindness.

[178] The second question, also a factual issue particular to each case, looks to the nature and value of the substance or contraband which its owner surrenders (see para. 173(6) above) together with the risk of loss or detection of the concealed product or cargo, as well as any pre-existing relationship between the owner and the courier. Drug transfers, unlike items shipped by bonded couriers or processed through a registered customs broker, are not insured against loss or shorting. Generally, the more valuable the concealed drugs, the easier to draw the inference that the owner and his or her complicit agents would not entrust the product to an unknowing courier who:

(1) might adopt a suspicious profile for any number of reasons unrelated to possession of the drugs thereby increasing the risk of customs inspections

(2) might on her own set about investigating perceived unusual facts such as the weight of a receptacle or a bulge or anomaly in the lining of her baggage in which drugs are secreted

(3) might report suspicions to the authorities

(4) might rip-off the owner.

[179] Finally, the sense to be made of an accused’s account of being a blind courier must take into consideration how, but for the courier’s arrest, the importation hierarchy in Canada would attain a transfer of control of its valuable cargo from the courier to the criminal organization. Will this involve a luggage switch, or mugging the courier and robbing her of the relevant receptacle, extortion of the courier or breaking into her residence to steal the illicit drug, or the employ of an accomplice who has a relationship with the courier sufficiently close to access the receptacle concealing the drugs? The more prolonged the reacquisition delay after the courier’s arrival in Canada, the greater the risk of loss, detection or destruction of the criminal organization’s valuable asset.

[180] As summarized, the court heard from C.B.S.A. officers and an R.C.M.P. officer in the prosecution case and from the accused, her mother and Ralph Fletcher in the defence case. Neither Paul or the accused’s father testified.

[181] Tomika DaCosta was a generally unimpressive witness who at times struggled to provide responses in cross-examination. Having regard to the content of the accused’s evidence and her manner of testifying, in the context of all of the evidence, her account of events cannot be accepted and nor does it raise a reasonable doubt. Although the trial was conducted just less than four years after the events of May 2010, a not insignificant delay capable of impacting on memory, on nearly three dozen occasions in her testimony the accused stated that she could not remember or recall or was unsure in responding to questions.

[182] It is not evident that the accused put her character in issue during her testimony. Be that as it may, in any event, what evidence there is relating to background, employment, lack of a criminal record and non-drug use, does not assist the court in determining the accused’s credibility as a witness or whether she would be the type of person who might become involved as a knowing party to illegal drug importation.

[183] The accused was arguably inconsistent in her evidence as to when her passport issued – before or after the plane ticket was obtained and then printed. She was vague in describing her domestic finances, her spending in Jamaica and the circumstances of the “last minute” arrangements relating to her pick-up at the airport on May 28 when she arrived back in Canada.

[184] Ralph Fletcher was an unusual witness in the manner of testifying and the content of his evidence. On more than one occasion, he would profess lack of memory or express a denial only to then claim refreshed memory. There were ambiguities in the witness’ evidence on several matters. It was difficult to determine whether he was simply a character of sorts, naturally failing in memory, or deliberately deceiving the court.

[185] The defence submitted that Ralph Fletcher was very likely instrumental in some way in setting up the accused to be a blind courier. Mr. Fletcher denied any such involvement. The witness had a dated, non-drug-related criminal record. There was no evidence to contradict his testimonial assertion that he was financially comfortable in 2010 and uninvolved in the drug trade. There is no evidence from anyone that Fletcher requested the accused to shop at a particular store at the airport in Montego Bay or to purchase particular bottles of liquor. Mr Fletcher denied driving the accused to and from the Pearson International Airport. Even on the accused’s contradictory evidence on this issue, the plan to have Fletcher pick her up at the airport on May 28 only arose that very day – not because Fletcher phoned to volunteer but because she requested that he assist her.

[186] Apart from such matters as to whether the accused imported phones into Jamaica on behalf of Ralph Fletcher, there were other areas of disagreement between the defence witnesses DaCosta and Fletcher including on these material issues:

(1) the frequency of their contact with one another and the substance of their communications

(2) whether Fletcher loaned Paul $1000 or whether he purchased a plane ticket for the accused to travel to Jamaica

(3) whether Fletcher drove the accused to the Pearson International Airport and was present 5 days later to pick her up – Fletcher denied having a driver’s licence or a vehicle.

[187] The accused’s evidence relating to Uncle Bobo raised a number of issues. Even on the accused’s evidence, Fletcher was not a mentor or elder for her as opposed to being a friend of Paul’s. Yet the accused testified that she confided in Fletcher, without Paul being present, her desire to go to Jamaica. Why would Fletcher buy her a plane ticket to go to Jamaica? How could the accused hope to repay him in a timely way? Does it make sense that as a 19-year-old she would be staying overnight at his apartment? Although maintaining that she has always wanted to pay Fletcher back for the plane ticket, what efforts were actually made to reimburse him? Ralph Fletcher, who the defence called to testify before the accused, was not closely questioned whether he was unavailable or avoiding the accused after her return to Canada.

[188] The accused advanced as her primary reason for her trip to Jamaica that she had a family connection with that country. Her father, who she had wanted to visit, resided there and her unwell grandfather. The accused’s mother confirmed some of these details. On its face, this is an entirely legitimate and understandable reason for the Jamaica trip. The emergency situation in Jamaica could not have been predicted.

[189] On the other hand, the accused could ill afford such a trip. After being unemployed for months and then working for about ten weeks in 2010, she had been fired from her job and had not secured new employment. She resided with her half-sister in a rented townhouse with six residents including her unemployed boyfriend, Paul. Her mother could not afford to send her to Jamaica. She did not ask for money from her half-sister who had two young children, was unwell and fighting with her own boyfriend. The accused’s monthly expenses were about $870. By the third week of May 2010, the accused had about $700 in the bank – not enough for a plane ticket and spending money in Jamaica. Her end-of-May cheque would not cover her June 2010 living expenses.

[190] While it might be expected that most persons would, in these circumstances, forego scheduling a trip to Jamaica to see family and for a vacation, rather electing to spend their time and energy seeking a new job, saving what little money they had to get through a period of unemployment and cover off upcoming expenses, while avoiding exhaustion of savings or indebtedness to another person, the accused here, on her evidence, decided to spend most of her meagre savings and go into debt to a third person.

[191] It is not entirely clear why the accused would travel to Montego Bay if her father and grandfather resided in Kingston, Jamaica. The accused stated that it was because Montego Bay was a tourist area. The accused’s mother claimed that it was cheaper to fly to Montego Bay.

[192] As I understood the prosecution position, it was unlikely that the accused had $700 cash of her own but rather it may well have been the case that Fletcher loaned Paul $1000 which the accused then used to buy her plane ticket and to expense a rush application for her passport leaving her only $300 to $400 for spending money in Jamaica, probably the $340 CAD she exchanged on May 23, 2010 — $200 of which was on her person when arrested on May 28, 2010 — with the remainder of her expenses underwritten by the Jamaican end of the criminal organization responsible for putting the cocaine into her knowing possession.

[193] The evidence of the accused suggests that she took something less than $700 to Jamaica particularly given her $100 expense for a rush application for her passport. After her arrest, her purse was returned with about $200 remaining. Accordingly, on her evidence, the accused spent the equivalent of $400 to $500 CAD while in Jamaica.

[194] Using an exchange rate of $80 JAM to one dollar Canadian, a rate more favourable to the accused than what she testified to be the exchange rates she encountered in Jamaica, this would allow the accused $32,000 to $40,000 JAM. Certain expenses of the accused are known from the evidence:

(1) hotel accommodation May 23, 2010 $4500.00

(2) fruit, gum, ice cream 547.89

(3) duty-free liquor 2000.00

Total: approx. $7000.00

[195] Out of the remaining $25,000 to 33,000 JAM, the accused had at least these expenses:

(1) 4 nights’ accommodation at a hotel (May 24 to 27)

(2) a phone card with daily international calls to Canada May 23 to May 28

(3) 5 days of food expenses not including May 28

(4) 3 taxis (all on May 23)

(5) alcoholic drinks consumed (May 24 and 27)

(6) clothes including pants, shirts and bathing suits

(7) a CD

(8) other airport store shopping.

[196] Given that the accused ultimately declared $122.00 worth of items purchased in Jamaica which would include three liquor bottles and items (6), (7) and (8) above of an approximate value in Jamaican dollars of $8,000 ($122.00 minus $22 (duty-free liquor) = $100 CAD x $80 JAM), she would have had approximately $17,000 to $25,000 to finance items (1) to (5) above. Four nights’ accommodation (May 24 to 27) at the daily rate paid at the first hotel would require $18,000 JAM either leaving no funds for five days’ food, taxis, alcohol and phonecalls or at most the equivalent of about $17.50 CAD a day for such expenses ($7,000 JAM ÷ 80 x 5 days). Even if the accused’s second hotel was markedly less expensive than the original hotel, her account of using her own money does not appear credible.

[197] Despite having a hotel receipt for the first hotel, the accused had no receipt showing that she paid her own hotel expenses from May 24 to May 27 and what the nightly rate was.

[198] Considering those rough calculations, the circumstances tend to confirm the prosecution theory that the accused was likely receiving financial assistance from someone in Jamaica.

[199] In assessing the evidence, it was not possible to assign particular relevance to the testimony relating to the laptop computer, the accused’s use of the Beigle Blvd. address on various documents, and the precise role played by the “on-call” individual, Peter. Further, the accused was not questioned as to the presence of an address of 169 Vismart Dr. on the May 28, 2010 currency exchange slip and the address of 169 Bismark Dr. written by her on the May 23, 2010 hotel registration and the E311 declaration card. She was also not questioned as to why different postal codes appear in these two documents for the Bismark Dr. address. In addition, to the extent that it might be argued that the accused made a statement on arrest (that C.B.S.A. Officer Dixon should check the other passengers’ bottles off Air Canada flight #983) that might be admitted as a spontaneous out-of-court statement (see R. v. Edgar, 2010 ONCA 529; leave to appeal refused [2010] S.C.C.A. No. 466), two points are deserving of mention – Dixon was not asked whether any such statement was made, and, the statement itself is open to varying interpretations.

[200] On May 28, 2010, at the Sangster International Airport, the accused passed through the security check-in without checking any luggage. In the ordinary course, the accused’s luggage would have been xray-screened and any liquid in her carry-on bags exceeding 100 ml. would have been detected in the airport screening process. Accordingly, the parties agreed that the accused did not enter the secure side of the airport carrying any liquor bottles. In some fashion, she acquired the cocaine-laden wine bottles after passing through airport security:

(1) the subject bottles already contained cocaine as they sat on the shelf of a duty-free liquor store in the airport available to be picked up by anyone – the accused became a random recipient of the cocaine, or

(2) the accused was part of an orchestrated arrangement, in which she was knowingly involved, whereby she was provided the subject bottles by an airport insider to transport back to Canada to be given to her domestic contact here, or

(3) at some point after the accused selected the two wine bottles in the duty-free store, an unknown person, without her knowledge, switched those bottles for the two outfitted with the cocaine.

[201] The parties rejected the first scenario as so highly unlikely or remote that it was undeserving of consideration as a real explanation.

[202] The second scenario is that posited by the Crown and submitted as proven beyond a reasonable doubt considering the entirety of the circumstantial evidence and its submission that the accused’s evidence should be rejected as implausible. The prosecution acknowledges gaps in its ability to show exactly what transpired in the airport in Montego Bay, for example, the identity of the Jamaican accomplice(s) and whether the accused purchased two clean bottles then switched elsewhere in the airport for the subject bottles or whether the plan involved her knowingly receiving the cocaine-prepared bottles directly in the duty-free store itself or otherwise. Ms. Campitelli submitted that the prosecution is not obliged to establish every facet of an illegal importation provided of course that no gap can be said to raise a reasonable doubt respecting the accused’s intention and knowledge founding liability as a party. Crown counsel submitted that the gaps such as they are in the present case do not detract from its discharge of proof.

[203] The final scenario involving an innocent dupe is the situation said by the defence to best explain the circumstances in which the accused unexpectedly found herself. Mr. Bayliss quite correctly observed that the accused need not show, to raise a reasonable doubt, the precise way in which she was victimized provided the hypothesis of the accused being set up by others is grounded in the evidence and is not mere speculation. It was submitted, in particular relying upon the direct evidence of the accused denying knowledge and her possession of a supporting receipt for a legitimate purchase of the liquor, that a blind courier explanation fairly arises as a rational explanation on the evidence providing reasonable doubt as to guilt.

[204] On the accused’s evidence, the liquor purchase was her idea. There is no evidence that she discussed it with anyone other than Peter who suggested she buy her liquor duty free at the airport as opposed to the shopping centre in Montego Bay.

[205] There is no evidence that the accused was directed to the particular duty-free liquor store where she maintains she bought the three bottles of liquor she imported into Canada. The accused did not testify that Peter, Uncle Bobo, or Paul or anyone else told her to go to this store or what liquor to purchase. Indeed, according to the accused, she first considered a liquor purchase at a completely different duty-free liquor store in the airport. So, on her account, it was essentially an on-the-fly chance that she attended the store she did. It was the accused’s own decision to purchase the Stone’s Ginger Wine.

[206] It was agreed between the parties that various documents entered as exhibits at trial, documents in the possession of the accused such as boarding passes, and papers purporting to be currency exchange transaction records or retail store receipts, were not admissible for the truth of their contents. The documents were not admissible as business records pursuant to s. 30 of the Canada Evidence Act (s. 30(12) defining “business” as including a business carried on elsewhere than in Canada). Nor were they proven at common law to be records which could be substantively admissible. However, the documents were capable of being circumstantially relevant considering the accused’s evidence as to their origin and their appearance and printed text.

[207] Exhibit #7, represented by the accused to be a cash register receipt from a store in the Sangster International Airport recording her purchase of duty-free liquor on May 28, 2010, a document bearing her name and flight number, has a white band down its left side obscuring the date beyond the year 2010. Further, the accused could not explain the 1:25 p.m. imprint which circumstantially suggests the time of the transaction other than in asserting that the time was wrong – 1:45 being a time 35 minutes after her boarding time and, on her evidence, the liquor purchase preceded her visiting the currency exchange, the airport bar and the washroom. The May 28 currency exchange transaction slip records a time of 12:33 p.m. In these circumstances of real questions as to whether Exhibit #7 is a genuine or phoney receipt for May 2010, the submitted corroborative effect of Exhibit #7 is very much diminished as a valid confirmatory piece of evidence.

[208] The defence position suggesting that the evidence logically admits of an opportunity, after her liquor selection as described by the accused, for an unknown person to have outfitted the accused with bottles concealing liquid cocaine without her knowledge or suspicion is difficult to accept on the evidence. The accused says that she self-selected the Stone’s Ginger Wine from a retail store shelf. There is no evidence of other store employees apart from the cashier. Other patrons were said to be in the store including customers paying for their own liquor purchases. On the accused’s evidence, there was a brief time that she was away from the counter selecting a bottle of rum. The prospect of the cashier performing some sleight-of-hand to switch bottles really enters the realm of speculation.

[209] There is no cogent evidence from the accused or otherwise suggesting that the duty-free liquor box, taped shut, was tampered with or switched prior to when she boarded her flight for Canada.

[210] The cocaine, retail-valued in a range of about $30,000 to $90,000, was a valuable asset not likely to be placed under the exclusive control of an unknowledgeable courier with the risks that such a surrender could engage.

[211] Keeping in mind the professional concealment of the cocaine in the wine bottles, turning to the evidence relating to the accused’s return to Canada, there is evidence quite properly emphasized by Mr. Bayliss which might be viewed as inconsistent with guilty knowledge. C.B.S.A. Officers Adams and Dixon noted no observed signs of nervousness on the part of the accused beyond Officer Dixon’s subjective perception of the accused sweating which was of no probative value. The accused marked her E311 card for food importation, entered a discussion with Adams leading to amendment of the customs declaration, imported a quantity of liquor beyond her allowable duty free limit, freely admitted her unemployment status and cried when arrested. That said, not every individual committing a crime will display external indicia of guilt. An inexperienced courier can be the weak link in an importation scheme and make mistakes including with a declaration card. Crying can admit of more than one interpretation. In the end, in the context of all the evidence, these factors did not raise a reasonable doubt as to the guilt of the accused.

[212] Of some importance is the evidence relating to the exchange between Officer Dixon and the accused relating to the purchase of her plane ticket to Jamaica. It must first be observed that there is no acceptable justification for Officer Dixon not to have made contemporaneous notes in the same way that Office Adams did. A delay of at least some 2 ½-plus hours, in the circumstances here, in my view departs from the obligation of a peace officer to “prepare accurate, detailed and comprehensive notes as soon as practicable after an investigation”: Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, at para. 67.

[213] Be that as it may, I accept the witness’ evidence that when asked for the name of the ticket-purchaser, the accused replied, “Reg”. Dixon dealt with no other passengers after encountering the accused and before the making of his notes. The accused accepts that everything else noted by the C.B.S.A. officer was accurately recorded. This was the officer’s second seizure of cocaine in ten days in Stone’s Ginger Wine bottles. The name obtained in answer to his question would have been of some importance to Dixon. The accused’s evidence on this point was unpersuasive.

[214] While the evidence of the accused misleading C.B.S.A. Officer Adams about spending time with her family in Jamaica, and the initial under-reporting of the value of goods in the E311 card are of negligible importance in terms of evidence of guilt, the act of providing a false identity for the person who purchased her ticket is of a different character. The accused deliberately set about obscuring detail relevant to how she came to be in Jamaica.

[215] Finally, in considering how the Canadian drug importers would take back their asset worth tens of thousands of dollars from their blind courier, on the accused’s evidence, the wine bottles were headed directly for Cambridge, Ontario to her half-sister’s home. How would the importation organization secure immediate custody to head off consumption, detection and loss? The defence advanced the answer that someone “could just take” the liquor box, a carry-on not a checked receptacle, at the Pearson International Airport presumably by robbing the accused if necessary. This prospect is simply not a logical or rational inference available on the whole of the evidence.

[216] Apart from disbelief of the accused’s evidence as to lack of knowledge of cocaine in the wine bottles, proof of guilt has been established beyond a reasonable doubt on the whole of the evidence. The accused travelled to Jamaica in May 2010 on a short-planned trip with a plane ticket she could not afford, said to have been paid for by a third person, together with a passport issued four days before the flight. The accused was unemployed, as was her boyfriend, and pressed financially. On evaluation of the accused's credibility, and in applying logic, common sense and human experience to the whole of the evidence, it must be concluded that she was an engaged and knowledgeable drug courier for profit.

[217] In the result, having regard to the entire record and all of the circumstances, the prosecution has established beyond a reasonable doubt that Tomika DaCosta, prior to entering Canada, knew that her luggage contained a prohibited substance.

CONCLUSION

[218] Mr. Bayliss, with his customary skill, has said everything that could be said on Ms. DaCosta’s behalf on the record here.

[219] The accused is guilty as charged.

Hill, J.

Released: April 8, 2015

CITATION: R. v. DaCosta, 2015 ONSC 1478

COURT FILE NO.: CRIMJ(F) 1017/11

DATE: 2015-04-08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

TOMIKA DACOSTA

REASONS FOR JUDGMENT

Hill, J.

Released: April 8, 2015