CITATION: R. v. Brown, 2016 ONSC 2001

COURT FILE NO.: CR-15-90000500-0000

DATE: 20160321

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVINE BROWN

Chris De Sa and Elizabeth Bellerose, for the Crown

Kate Oja, for Mr. Brown

HEARD: March 7, 8, 9, 10, 14, & 15, 2016

r.f. goldstein j.

1During the morning of February 12 2014 an undercover RCMP officer posing as a DHL courier conducted a controlled delivery of a package. The package was from Tanzania. It contained heroin. The undercover police officer buzzed 14 Rayoak Drive, Unit 706, in Toronto. Tracy Brown was home. It was her apartment, although her brother Kevine Brown was staying with her. She answered the buzzer. She called her brother, who told her to sign for the package. He told her to use a false name. She signed for the package but used her own name. The police arrested her almost immediately. They burst into the apartment to freeze it. They then waited for a search warrant. While they were waiting Kevine Brown appeared and the RCMP arrested him, too. He now faces a single charge of possession of heroin for the purposes of trafficking.

2The Crown alleges that Mr. Brown had knowledge and control of the package, or at least was wilfully blind to the fact that it contained drugs. Mr. Brown admitted in a videotaped statement that he knew that he would be receiving a package. He also admitted that he suspected that there were drugs in the package. Did he know, have reason to believe that the package contained heroin? For the reasons that follow, I am satisfied beyond a reasonable doubt that he did, or was wilfully blind about it.

BACKGROUND:

3On February 5 2014 British customs authorities intercepted a DHL Courier package containing 1.133 kilograms of heroin. The heroin was hidden in 23 pairs of leather sandals. The consignor of the package was Suzan Hayatta of Forest Area, Monogoro, Tanzania. The package was addressed to Victor Mckenzie, 14 Rayoak Drive, Unit 706, Toronto with a contact number of 437112200.

4On February 8, 2014 the British authorities sent the package to the RCMP. The RCMP removed most of the heroin from the heels of each sandal. They left some heroin for the purposes of a controlled delivery.

5The RCMP determined that 14 Rayoak Drive was a Toronto Community Housing apartment. Unit 706 was rented to Tracy Brown.

6On February 12, 2014 Constable Scotland, an undercover officer posing as a DHL courier, walked into the front lobby of 14 Rayoak and buzzed Unit 706. Tracy Brown answered, although Constable Scotland did not at that point know who she was.

7Constable Scotland testified that he explained that he had a package to be delivered. Ms. Brown tried to buzz him in but the buzzer was not working, so she came down. He told her that since the package was addressed to Victor McKenzie she would have to provide identification. She let him in and they walked to the elevator.

8Constable Scotland testified that before entering the elevator Ms. Brown had a conversation on her cell phone. She said, “Kevine, your package has arrived”. She then said words to the effect that the package for Victor was there and she had to show her identification because the package didn’t have her name on it. Constable Scotland testified that he was unable to make a verbatim note of that part of the conversation because the dialogue was simply too long. They then went to apartment 706. She showed him her Canadian passport and identified herself as Tracy Brown. She signed the waybill receipt and he left the package there.

9Ms. Brown testified that she lived at 14 Rayoak Drive, Apt. 706 on February 12, 2014. Her brother had been staying with her temporarily. She testified that she came back from Jamaica on a Thursday. On the Monday (which would have been February 10, 2014) Mr. Brown told her that he was expecting a package to be delivered to her place. Mr. Brown, Tracy Brown, and their mother were in the car talking about it. They were running errands but Mr. Brown insisted on going back to the apartment to wait for the package. The next day Mr. Brown got up and left the apartment before she got out of bed. That was the date that the package was delivered and she and Mr. Brown were arrested.

10Tracy Brown was very obviously unsure of or confused about the dates. The package was delivered on the Wednesday – February 12, 2014. She testified that she was able to date the conversation with her brother about the package because she had a medical appointment on the Monday. As her evidence transpired, however, it seems unlikely that she was correct about the date of that appointment either. In cross-examination she corrected herself again and testified that the conversation about the package must have happened on the Tuesday.

11Ms. Brown testified that on the day that the package was delivered she heard the buzzer. It was a DHL courier. She went downstairs to get the package but the courier said she needed to sign for it. He came upstairs with her and she called her brother. She said “they want me to sign for the package.” He told her not to sign her name. She asked “why not?” and said that she only had her passport as identification, which she showed the DHL guy. She then signed for the package. Within five minutes her door was kicked open by the RCMP.

12In cross-examination, Ms. Brown testified that her brother had never received a package at her place. When they discussed the package, Mr. Brown never described the package, said where it was coming from, or whether it was coming by mail or courier. She did not know it was not going to be in Mr. Brown’s name. Tracy Brown also adopted a part of a statement that she had given to the police indicating that Mr. Brown had said nothing to her on the morning that the package was delivered.

13The heroin was valued at between $271,992 and $396,655 if sold at the gram level. The heroin was valued at between $339,990 and $566,650 if sold in hits of 0.1 grams. The price for a kilogram of heroin in the Greater Toronto Area in 2014 was between $80,000 and $110,000. If sold at the kilogram level, the price was between $90,000 and $124,663.

ANALYSIS:

14The real issue here is knowledge: did Mr. Brown know that there was heroin in the package, or was he wilfully blind to the fact that there was heroin in the package?

15The key pieces of evidence to be analyzed are these:

• The package itself;

• The statement given by Mr. Brown to Constable Doyle;

• The Evidence of Tracy Brown;

• The Uganda package; and,

• The items seized during the search of Apt. 706.

The Package

16Numerous photographs of the package were submitted into evidence. The photos show the package in great detail, including the heroin, the packaging, and the label. The photos tell little about who actually exercised controlled over the package. The photographs tell even less who knew of the contents.

The Statement

17On the evening of his arrest, Mr. Brown gave a videotaped statement to Constable Doyle. I found that the statement was voluntary. The Crown tendered the statement as part of its case.

18If I find that the statement is exculpatory, and I believe the exculpatory parts of the statement (or I find that those parts leave me with a reasonable doubt) then I must acquit Mr. Brown and that is the end of the case. As my colleague K. Campbell J. observed in R. v. G.T., 2013 ONSC 6472, [2013] O.J. No. 4755 at para. 17, an exculpatory out-of-court statement by an accused person that is tendered by the Crown may raise a reasonable doubt about the guilt of that accused person. The principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 apply to such statements. Thus, if I believe the exculpatory parts of the statement, I must acquit Mr. Brown. Even if I do not believe those statements, if they leave me with a reasonable doubt, I must acquit. Even if I do not believe those statements, and they do not leave me with a reasonable doubt, I cannot convict unless I am satisfied beyond a reasonable doubt based on the evidence that I do accept.

19Parts of the statement are indeed exculpatory, but I do not believe them and they do not leave me with a reasonable doubt. I do, however, believe the inculpatory parts.

20Mr. Brown’s explanation for the package was initially this:

I did a favour for a friend and I’ve done it before for the same person twice, maybe three at the most. He, he does it because him and his girl argue because he orders a lot of stuff like online, he likes to buy fancy stuff all the time. So I made him bring some stuff to my house before, shoes, clothes so I never thought anything of it. You know, same ol’ same ol’ and then I come home and see a bunch of RCMP or whatever you guys are at the door and I get arrested.

21Mr. Brown said that there had been other packages. He explained that it was because his friend’s girlfriend did not like him buying expensive things while they had children. He twice opened the packages in front of him. They contained shoes. He said that this person wasn’t really a friend, but was a friend of a friend. Mr. Brown said that his name was Donny, and he was a white guy about 5’9” or 5’11”. He knew Donny from high school.

22Mr. Brown explained that Donny called out of the blue. He did not know how Donny got his number. He had called a day or two before the package came (the timeline is not entirely clear) and asked for his address. He did not know Donny’s phone number because Donny always called from an unknown number.

23Mr. Brown explained what happened (page 8 of the statement transcript):

KB: I gave him my address and he told me when its supposed to come, he said he had like a tracking device on it cause it was like he wanted to keep an eye on it so he’d know when to come and get it or whatever. I was like whatever man. Unfortunately I wasn’t home for that.

PD: Right.

KB: And I think to be totally honest with you, if I was home, and I saw that package, I would have told the guy you’ve got the wrong door just by looking at it, just way it was wrapped up and stuff. Like I’m not gonna lie, I’ve done drugs like that whole thing before and I don’t do that shit anymore, right away I would have known, I would have said you’ve got the wrong number. Wrong door number or something cause I don’t know, I don’t do that, that’s not my, I don’t do that shit anymore.

PD: So when you’re talking to Donny and he asks for your address, what address do you give him?

KB: My sister’s because that’s where I was at the time.

24Mr. Brown said that Donny could track the package, and called to tell him that it was on the way. He told Constable Doyle that he never heard the name Victor McKenzie. He said it sounded like a made-up name. He also said that Donny did not call him on the Monday that he was waiting for the package to tell him it would not be there. The next day, the Tuesday, Donny did call and tell him that the package was supposed to be coming. It did not, obviously. (I note that Mr. Brown was not completely clear about the dates).

25Mr. Brown consistently denied that Donny paid him to receive a package of drugs. He did concede that he was getting “a weird feeling” about the package but went through with it anyway. He vehemently denied, however, knowing that the package contained over a kilogram of heroin.

26Mr. Brown also claimed that he could not provide any information that would identify Donny or allow the police to investigate Donny. Donny always called “private”. Mr. Brown offered to provide his phone. He did not know Donny’s last name although he said they went to high school together and used to smoke weed together. He had never been to Donny’s house and could not identify his girlfriend.

27Eventually, Mr. Brown admitted that he told his sister to sign a fake name. He had “bad feeling” that the package contained drugs:

PD: Why did you tell your sister to sign a fake name?

KB: Because, I didn’t want her to sign her name on that package. I wasn’t gonna sign, I wasn’t gonna put my real name either.

PD: Why?

KB: Because I had a feeling. I had a really bad feeling, so if, if worse did come to worse, my name wouldn’t be on that package. And like I said if I was there, I would have just not accepted it but I couldn’t see that package what it looked like.

PD: But then you told, you ordered your sister to sign for that package.

KB: Yes I did.

PD: Even though you had a bad feeling.

KB: It wasn’t, she, it was there so I was like alright sign for it but don’t put your real name cause

PD: And when you say a bad feeling, what does that mean?

KB: Something just wasn’t right about it, it could have been drugs, it could have been anyting I just had a feeling down here like

PD: Yeah

KB: Something’s not right.

PD: We’re getting closer Kevine. What was that feeling, what did you think was in that bag? Potentially in that package

KB: Some type of drug to be honest

PD: Some type of drug

KB: Some type of drug

PD: Right

KB: I just had a feeling

PD: So you thought there might be some type of drug in there right

KB: Yeah

PD: And then you told your sister to sign it

KB: I did, stupidly I did yes.

28The exculpatory parts of Mr. Brown’s statement are internally inconsistent. Furthermore, the parts about “Donny” are implausible. I find that “Donny” is either a fabrication, or, if he did exist, that Donny’s behaviour and instructions were such that they should have caused Mr. Brown to make inquiries. He knew that there was a problem. He did nothing about it.

29I accept that there may have been a person who asked Mr. Brown to accept the package on his behalf. That person may well have been named Donny. Although I doubt Mr. Brown’s statement that he did not take money for accepting these packages, there is no evidence to contradict him. I find that whether he took money or not is a neutral factor.

30I do, however, very much doubt that Mr. Brown had no number or other way to get in touch with Donny. I think that I can safely assume that if Donny arranged for the delivery of a kilogram of heroin worth as much as $566,000 to Mr. Brown, he would have given Mr. Brown a way of telling him – notwithstanding Mr. Brown’s statement that Donny was tracking the package. I think I can also safely assume that he would have wanted that much heroin out of the hands of a mere post box and into a stash house as soon as possible. That is why I simply disbelieve Mr. Brown on this point. His evidence does not make sense.

31I also find that Mr. Brown’s statement that Donny had called a day or two before the package arrived to ask for his address to be false. A day or two prior the package had already been intercepted. Indeed, it had been intercepted a week before the controlled delivery. The address of 14 Rayoak was already known to the sender much earlier. Why then would Donny only call a day or two (or even a few days) prior for the address?

Evidence of Tracy Brown

32I agree with Ms. Oja that I must approach Tracy Brown’s evidence with caution. If I were trying this case with a jury, I would give a Vetrovec warning: R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421 at para. 160; R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811.

33There are objective reasons to be cautious about her evidence. I agree that Ms. Brown believed that she received an important benefit from her testimony. She believed that her charges were withdrawn in exchange for being a Crown witness. In fact, her charges were stayed at the close of Mr. Brown’s preliminary inquiry. Where the witness is essential to the Crown’s case, moderate credibility problems will still merit a warning to the jury. Where the witness’s credibility is very problematic, a warning may be necessary even where the case is otherwise strong: R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237 at paras. 79-80.

34Tracy Brown is a discreditable witness based on her previous conviction for importing cocaine. She admitted that in 2002 she had been arrested at Pearson Airport importing a substantial amount of cocaine (she did not remember the amount) strapped to her body and in a body cavity insert. In 2004 she pleaded guilty and received an 18-month conditional sentence. She testified that she and her best friend brought cocaine into the country for her best friend’s boyfriend. She testified that the boyfriend later murdered her friend and threatened to kill her. It is not clear to me whether this murder had anything to do with what was obviously a very lenient sentence for importing a large amount of cocaine.

35Overall, I did not find Tracy Brown to be a credible or reliable witness. She gave different answers at different times about material points – for example, whether her brother was staying with her full time or whether he came and went from her apartment. She had been taking anxiety medication prior to this incident and denied that it affected her memory, but she had trouble with dates and other details when she spoke to the police. She was not credible, or at least not reliable, when she mentioned that she had been to the hospital earlier that day or the day before.

36I also find that her behaviour with the police when she was arrested was appalling. She admitted that she might have been belligerent with the police, swearing at them, and shouting. She threatened to sue them. She admitted that she was spitting and shouting, but denied that she was spitting at them. She said she was spitting on the floor but not on anyone. I accept that the stress of the arrest when combined with her pregnancy was a factor influencing her behaviour. That said, her behaviour has an impact on her credibility.

37I find that I do not believe or accept her evidence except where it is corroborated by other witnesses or independent evidence, or her brother’s admissions. As it happens, the three key parts of her evidence are corroborated and I accept them.

38First, I do accept her evidence of the telephone call with her brother because the fact that the words “Kevin your package is here” were spoken was corroborated by Constable Scotland, the undercover officer. I found him to be a credible and reliable witness. He was very careful to distinguish between those parts of her statements that he took down verbatim, and those he could not fully remember. The statement is not hearsay because Tracy Brown testified in court that she actually said that to Mr. Brown.

39Second, I accept Tracy Brown’s evidence that Mr. Brown told her to sign a false name because it is corroborated by Mr. Brown himself. He admitted in his statement to Constable Doyle that he told her that.

40Third, I accept Tracy Brown’s evidence that on the Monday or Tuesday before the package was delivered Mr. Brown insisted that he wanted to go back to the apartment to wait for it. That is also because it is corroborated by Mr. Brown in his statement to Constable Doyle.

The Uganda Package

41On February 16, 2014 United States Customs and Border Protection (CBP) intercepted a package in Louisville, Kentucky. It was a UPS courier package addressed to Mike Jime, 14 Rayoak Drive, Unit 706, Toronto with a phone number of 14372001154. The consignor of this package was Gloria Anguma of Kampala, Uganda, 101. The CBP officers opened up this second package and found three statuettes. There was a total of 392.3 grams of heroin hidden in the base of the statuettes. The RCMP did not do a controlled delivery, because Mr. Brown and Tracy Brown were already in custody at that point.

42Mr. De Sa, Crown counsel, argues that the second package is probative of knowledge of the first package. The Crown argues that it is circumstantial evidence. “Mike Jime” was obviously a false name, just like “Victor McKenzie”. The second package, Mr. De Sa argues, eliminates the possibility of coincidence.

43I agree that the second package has some probative value, and certainly makes the possibility of coincidence less likely. That said, it is but one piece of evidence and not necessarily the most important piece of evidence. It does not exclude the possibility of other suspects, for example (although I acknowledge that the defence did not pursue the alternate suspect defence). If this were a purely circumstantial case, it would not be enough on its own to show that guilt was the only logical conclusion.

The Seized Items

44The RCMP officers seized several items from Apt. 706. These included small plastic baggies and a small digital scale.

45In my view, these items, while not entirely irrelevant, have only a limited probative value. It is true that the scale and the baggies are likely suitable for selling drugs at a relatively low level, although there is no expert evidence on that point. Mr. Brown admitted as much in his statement. Given that admission, I have no difficulty in finding that the seized items are consistent with petty drug trafficking.

46I have much greater difficulty in finding that the items are consistent with possession for the purpose of trafficking in heroin at the kilogram level. Nonetheless, when combined with Mr. Brown’s admissions to Constable Doyle they have some relevance to drug trafficking by Mr. Brown. They also reduce the possibility of coincidence. Given Mr. Brown’s admitted familiarity with drug trafficking at the petty level (which, as I said, he acknowledged in his statement) it should have at least given him pause and caused him to ask questions. That is the real significance of the seized items.

Conclusions

47Do these facts add up to actual knowledge or wilful blindness? Although I have a reasonable doubt about actual knowledge, I am satisfied beyond a reasonable doubt that Mr. Brown was wilfully blind.

48There is certainly evidence to show that Mr. Brown had actual knowledge that there were drugs in the package. He knew there was a package coming. There was evidence that he was more than suspicious that the package contained contraband. That was why he told his sister to sign for it using a false name.

49Mr. Brown’s story to Constable Doyle about Donny makes no sense, and I think I could use elements of it to draw the inference that it indicates actual knowledge. Mr. Brown said that Donny used his address to receive packages of expensive items –new Nike Air Jordan’s, for example – because he didn’t want his girlfriend to know about it. Mr. Brown did not say how Donny was going to get away with actually wearing the new Air Jordan’s around the house without the girlfriend becoming suspicious. The Donny whole story smacks of something fabricated and not thought through.

50Both Tracy Brown and Mr. Brown denied that they knew the package would be coming under the name “Victor McKenzie.” It is clear that Tracy Brown knew a package was coming to her apartment. A key question, however, is whether Mr. Brown told Tracy Brown that he was expecting a package specifically for Victor, or just a package. Constable Scotland said that Tracy Brown had said words to the effect of “the package for Victor” was there. Constable Scotland was careful not to impute the knowledge of “Victor” to her. Tracy Brown testified that Mr. Brown did not mention “Victor”. She testified that she simply just saw the name Victor and drew the conclusion that it was the expected package. I am unable to draw the inference that Mr. Brown told Tracy Brown the name “Victor”, which would be a key piece of evidence in terms of imputing actual knowledge.

51As I said, I think that Mr. Brown probably had actual knowledge that the package contained heroin. Probably, of course, is not enough and I find that I am left in a state of reasonable doubt about whether Mr. Brown had actual knowledge. Accordingly, I must analyze whether Mr. Brown was wilfully blind as to the contents of the Tanzania package.

52Wilful blindness is a substitute for actual knowledge. An accused person who is suspicious to the point where he or she sees the need to ask further questions or make further inquiries, but deliberately chooses not to is wilfully blind: R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570. If the accused deliberately “shut his eyes” because he or she “knew or strongly suspected that looking would fix him with knowledge”, that is also wilful blindness: R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55 at para. 103.

53In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R 411 Charron J., adopting the words of Professor Don Stuart, found that “deliberate ignorance” is a more useful expression than wilful blindness:

Professor Don Stuart makes the useful observation that the expression "deliberate ignorance" seems more descriptive than "wilful blindness", as it connotes "an actual process of suppressing a suspicion". Properly understood in this way, "the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused's mind" (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart's words, "deliberate ignorance".

54Thus, mere suspicion is not enough to found wilful blindness. The Crown must prove beyond a reasonable doubt that Mr. Brown was deliberately ignorant.

55In my view, the Crown has done so. Mr. Brown admitted as much in the statement given to Constable Doyle when he said that he thought that there might have been some type of drug in the package. The package was coming and Mr. Brown knew it. Although I am unable to draw the inference that Mr. Brown actually knew ahead of time that the package was addressed to “Victor”, he certainly knew it when Tracy told him over the phone. If the Donny story was true, and the items were innocent, then why did he tell her to use a false name? I think I can draw the inference that the false name “Victor” gave Mr. Brown no pause or concern (except a concern that his sister not use her real name). His instructions to her to use a false name, combined with the nonsensical (or fabricated) story about Donny, as well as the admissions in his statement, demonstrate deliberate ignorance because he did not want to know the truth.

DISPOSITION

56I find Mr. Brown guilty.

R.F. Goldstein J.