Superior Court of Justice
CITATION: R. v. Carrera-Vega, 2015 ONSC 3159
COURT FILE NO.: CRIM J (F) 2620/12
DATE: 2015/03/24
ONTARIO
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: SCHELL AND PACQUETTE
M. FAIRBURN J.
Overview
[1] In discussions leading up to a pre-charge conference, and at the pre-charge conference, counsel to Mr. Carrera-Vega asked for an instruction in compliance with R. v. Schell and Pacquette (1977), 33 C.C.C. (2d) 422 (Ont. C.A.) ["Schell"]. These are my reasons for dismissing this request.
Facts
[2] Mr. Carrera-Vega and Mr. Sablon-Leal are charged with importing cocaine on December 16, 2011.
[3] The following facts are undisputed. They travelled to Panama together. While there, they bought new suitcases. Mr. Carrera-Vega purchased a blue Samonsite luggage set, both a small and large bag. Mr. Sablon-Leal purchased the same bags, 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.
[4] 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.
[5] 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.
[6] When they returned to Canada through Pearson International Airport, they were sent to a secondary inspection area. 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 his suitcases and Mr. Sablon-Leal was found to have 3,937.3 grams.
Law
[7] Schell involved two people on trial for the murder of a young child. She died of a subdural hematoma. The pathology suggested that she died from one or more forceful blows to her head, or of a violent shaking. There was no evidence as to how the death had been caused and no evidence of aiding and abetting. It was a classic case where two people had the opportunity to kill the child and either one may have committed the offence. In the circumstances, the trial judge erred in failing to instruct the jury that if they were satisfied beyond a reasonable doubt that one of the accused killed the child, but they were uncertain as to which one, then they were both entitled to be acquitted. Critically, there was no evidence that Schell and Pacquette acted together in killing the child.
[8] This principle has been discussed on many occasions. In R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 68, Doherty J.A. maintained that the Schell principle is limited to joint trials where there exists no evidence of the accused acting together in the commission of the offence. As noted:
Schell, supra, also has no application. That case stands for the proposition that on a joint trial, if there is no evidence that the accused acted together in the commission of the crime charged or in furtherance of some other criminal object, the jury should not be instructed on aiding and abetting or potential liability under s. 21(2). The jury must also be told that if it cannot determine which accused committed the crime, then both must be acquitted.
[9] A Schell instruction cannot be superimposed on an evidentiary landscape that suggests the accused acted in concert or with a common motive and intention in mind. Any inference of joint participation distinguishes a case from Schell and belies an instruction that tells triers to acquit both if they cannot determine which of the two committed the offence: R. v. Spackman, 2012 ONCA 905, at para. 194.
[10] Here, there is ample evidence of joint participation. The accused are clearly joint principals. They are each alleged to have taken steps in Panama to set the stage to bring cocaine back into Canada. Each had almost four kilograms of cocaine in their bags when they entered Canada. This is not a Schell situation.
Conclusion
[11] The jury will not be instructed that if they find one committed the offence, but are uncertain as to which, then they must acquit. This instruction has no air of reality against the factual backdrop of this case.
[12] Nonetheless, the jury will be instructed that they must approach each accused separately. While they are being tried together, the jury will be told that they must reach separate verdicts for each of them. Each of the accused is entitled to separate consideration and each is entitled to have his case decided on the basis of his own conduct and state of mind and from the evidence that applies to him.
FAIRBURN J
Released: March 24, 2015
CITATION: R. v. Carrera-Vega, 2015 ONSC 3159
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: SCHELL AND PACQUETTE
FAIRBURN J
Released: March 24, 2015