CITATION: R. v. Carrera-Vega, 2015 ONSC 3158
COURT FILE NO.: CRIM J (F) 2620/12
DATE: 2015/03/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
C. Letman, for the Crown
- and -
JUAN CARLOS CARRERA-VEGA and ROBERTO SABLON-LEAL
A. I. Kostman, Counsel for Juan Carlos Carrera-Vega
H. Cedro, Counsel for Roberto Sablon-Leal
RULING: CHARGE ON WILFUL BLINDNESS
M. FAIRBURN J.
Overview
[1] Mr. Carrera-Vega and Mr. Sablon-Leal are charged with importing cocaine into Canada, through Pearson International Airport. They elected to be tried by judge and jury. At the completion of evidence, the Crown requested an instruction that that the mens rea for importing cocaine is met either through actual knowledge or through wilful blindness. The defence resist this instruction, saying that it finds no factual foundation in the evidence the jury has heard. I conclude that while wilful blindness can substitute for knowledge in the context of importing a controlled substance under s. 6 of the Controlled Drugs and Substances Act, there is no air of reality to the instruction here and it will not be given.[^1]
Facts
[2] The following facts form part of the evidence in this trial. Mr. Carrera-Vega and Mr. Sablon-Leal travelled to Panama together. While there, they bought new suitcases. Mr. Carrera-Vega purchased a blue Samonsite luggage set and Mr. Sablon-Leal purchased the same set, only in black. While they did not set out to purchase luggage, they had met a man they referred to as “the Cuban”. They first met him while in the lobby of their hotel: Hotel Montreal in Panama City. The Cuban was on the computers kept in that area of the hotel.
[3] They befriended the Cuban and kept company with him during the evenings. They attended the Ache nightclub with him on a few occasions and visited a new restaurant that he was building. On one occasion, he was in Mr. Carrera-Vega’s room and commented on the poor condition of his luggage. Upon attending at Mr. Sablon-Leal’s room, he also commented on the condition of his luggage. Both accused had borrowed the luggage they took to Panama.
[4] The Cuban offered to take them to a place to purchase new luggage. He drove them the next day to a store that neither accused could remember well. A number of backpacks were hanging from the ceiling. There was luggage on display and when they made their choices, the pieces were brought from the back of the store. They paid cash for the bags and then the Cuban returned them to the Hotel Montreal with their new Samsonite suitcases. Each accused had purchased a small and large bag.
[5] Both accused testified. It is their evidence that neither looked into the smaller bags. In their individual rooms back at the Hotel Montreal, they placed their possessions into the larger bags and then closed them up. Neither paid much attention to the inside of the big bags when they placed their possessions into them. Each of the accused testified that they did not place anything into the smaller bags.
[6] They both testified about the poor security within the Hotel Montreal and the fact that their rooms were entered with the use of a regular key. From time-to-time, they found their doors unlocked and opened when they returned to the hotel from being out. Mr. Sablon-Leal testified about a suspicious Panamanian he had met on two occasions at the hotel who asked to exchange some personal information with him.
[7] When they checked their luggage in at the airport, both were under the impression that they were bringing empty small suitcases back to Canada. Both were also under the impression that their possessions were in their big suitcases.
[8] When they returned to Canada, they were sent to a secondary inspection. They were dealt with separately in secondary and asked a variety of questions. Their bags were searched and cocaine was found. Ultimately, Mr. Carrera-Vega was found to have 3,874 grams of cocaine distributed throughout both of his suitcases and Mr. Sablon-Leal was found to have 3,937.3 grams distributed throughout both of his suitcases.
[9] The accused testified that they did not think that the circumstances surrounding the purchasing of the bags was strange. They did testify, though, that they found the Cuban somewhat suspicious. Their concerns about the Cuban, whose name they could not recall, were raised because he was opening a business in Panama and, being from Cuba, they found this odd. Mr. Sablon-Leal also found him politically suspicious.
Positions of the Parties
[10] The Crown takes the position that there is a factual foundation upon which to instruct the jury on the basis of wilful blindness. The accused have acknowledged that they found the Cuban man suspicious. He is the one who arranged for the purchase of the new bags and this should have raised their suspicions about the bags. As well, the Crown takes the position that the accused clearly tried to distance themselves from any suggestion that they looked into the bags. They both testified that they quickly placed their possessions into their big bags and closed them up, never to look in them again (at least until they got to Pearson and they were opened by Customs officials). The Crown argues that the distancing of themselves from the interior of the bags is evidence of wilful blindness.
[11] The defence take the position that there is no air of reality to wilful blindness in this case. The mere fact that Mr. Carrera-Vega and Mr. Sablon-Leal did not look into their suitcases is meaningless. There was nothing that called out for them to do so. As for the Cuban gentleman, while they were suspicious of him, there is no evidence that they thought he was a criminal or had a criminal orientation.
The Law
[12] Wilful blindness constitutes a subjective inquiry into the accused’s state of mind. Against a proper factual backdrop, it can stand as a substitute for actual knowledge. It imputes knowledge in circumstances where an accused’s suspicion is aroused to the point that he or she sees a need to inquire but “deliberately chooses not to make those inquiries”: R. v. Briscoe, 2010 SCC 13, at para. 21. In R. v. Jorgenson, 1995 85 (SCC), [1995] 4 S.C.R. 55, at p. 103, the following helpful question was put: “Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge.” As explained by Justice Charron in Briscoe, relying upon Professor Don Stuart, Canadian Criminal Law: A Treatise (5th ed. 2007), a p. 241, it is not simply a failure to inquire that triggers the doctrine, but “deliberate ignorance”.
[13] Briscoe is a classic case where there was a clear factual foundation for wilful blindness. A young woman was killed at a golf course. Multiple men were involved. Mr. Briscoe’s statements clearly supported the suggestion that he had a “strong, well-founded suspicion that someone would be killed at the golf course”. Despite this concern, he chose not to inquire: “whatever you guys wanna do just do it. Don’t do it around me I don’t want to see nothing.”
[14] When it comes to importing a controlled substance, wilful blindness can substitute for knowledge: R. v. Morales (2006), 2006 19930 (ON CA), 81 O.R. (3d) 161 (C.A.). In Morales, at para. 22, the Court used the air of reality test to determine whether the trial judge erred in leaving this form of mens rea with the jury. While the air of reality test in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 set out the threshold for leaving a defence with a jury, Morales makes the test equally applicable to considering when a route to mens rea should be left.
[15] In Cinous, the test is defined as follows: “The correct approach to the air of reality test is well established. The test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.” Applying this in the context of wilful blindness, the question is whether there is evidence on the record upon which a properly instructed jury could find that the accused knew there was a need to inquire and deliberately chose not to make the relevant inquiries so that he could avoid being fixed with knowledge.
[16] There is no air of reality to wilful blindness in this case. On their own evidence, Mr. Carrera-Vega and Mr. Sablon-Leal befriended a Cuban fellow. He was good to them. He took them to get a great deal on suitcases. They were happy with their new suitcases. They were bringing them back to share with family members and friends. While Mr. Sablon-Leal was suspicious of the Cuban from a political perspective, and both thought it odd that he was opening a restaurant, nothing in their evidence suggests that their suspicions were aroused with respect to the bags. Moreover, I find that there is nothing in the manner in which they testified that they packed their bags that supports an inference of wilful blindness. The fact that they placed everything in the large bags and did not look not look into them, or inspect them, does not give rise to the inference that they were suspicious of the bags and, therefore, trying to avoid fixing themselves with knowledge.
[17] This is unlike Morales where the accused met “Fred” on a golf course and Fred asked him to take a bottle of liquor back to Canada for “Michael”. The liquor bottles turned out to have cocaine in them. He had no contact information for Michael and no address or phone number. He had no description of Michael.
[18] The court determined that in these circumstances the appellant’s evidence was so inherently suspicious that it defied common sense and, as such, wilful blindness became an issue. While there are aspects of the evidence of each accused in this case that are problematic in terms of dealing with the suitcases, such as the coincidence that they both left the smaller cases unpacked, I find that there is nothing about the actual purchase of the suitcases, in and of itself, or the packing of them, that is so inherently suspicious that it defies common sense and calls for or even supports an instruction on wilful blindness.
[19] The jury will only be instructed on actual knowledge.
FAIRBURN J
Released: March 24, 2015
CITATION: R. v. Carrera-Vega, 2015 ONSC 3158
COURT FILE NO.: CRIM 2620/12
DATE: 2015/03/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JUAN CARLOS CARRERA-VEGA and ROBERTO SABLON-LEAL
RULING
FAIRBURN J
Released: March 24, 2015
[^1]: Following my ruling on this issue, the Crown was permitted to make some additional submissions with respect to what was said to be the factual foundation for wilful blindness. These reasons incorporate the Crown’s additional submissions.