COURT FILE NO.: CR-14-0639 DATE: 20160607

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN M. Park, for the Crown

• and -

OMAR BLACK J. Struthers, for the Defence

HEARD: May 17 and 18, 2016, at Brampton

Reasons for Judgment

André J.

[1] Mr. Omar Black (“Mr. Black”) arrived at the Pearson Airport on November 21, 2012, at approximately 8:00 p.m., from Antigua. He cleared the primary and secondary inspection booths at the airport and departed to his Toronto residence. Later that evening, a Canada Border Services Officer retrieved an unclaimed piece of luggage on the carousel which contained luggage from passengers of the flight on which Mr. Black had travelled. They subsequently found fifteen packages in the suitcase which each contained one kilogram of cocaine. The identification tags on the suitcase had Mr. Black’s name while a sock within it had his DNA. I must now consider whether or not the Crown has proven Mr. Black’s guilt beyond a reasonable doubt.

Summary of the Evidence

Crown’s Evidence

[2] The 42 year old Mr. Black, who worked in the office cleaning industry at the time of the alleged offence, went to Antigua in November 2012 for the avowed purpose of attending the wedding of a friend. He returned to Canada on November 21, 2012 after he had extended his stay in Antigua at the request of the female friend who had invited him to the wedding.

[3] Upon his arrival, a primary inspection officer asked him a few questions regarding his trip to Antigua. He hesitated before answering and then gave two different responses when asked about his friend’s name. Mr. Black had a garment bag and two other pieces of hand luggage. The officer referred Mr. Black for a secondary inspection. Mr. Black was cleared to exit the airport without being detained further.

[4] CBSA Officer William Bird (“Officer Bird”) attended the airline on which Mr. Black arrived to observe the offloading of luggage from the aircraft. The purpose of doing so was because of internal conspiracies in which workers at the airport had been implicated in drug importation.

[5] Officer Bird monitored the offloading of the WestJet flight from Antigua. He observed nothing unusual; the workers offloaded all the bags from the aircraft. The officer followed the bags to the airport and saw them being offloaded onto a carousel. Officer Bird then went into the airport to ensure that all were picked up by the plane’s passengers.

[6] Officer Bird observed that a red suitcase kept going around on the carousel. He retrieved it and then opened it. Two baggage tags both had the name “Omar Black”. Within the suitcase was a thick layer of white foam cushioning. He took it to the secondary inspection booth for x-ray which revealed the presence of a number of brick-like objects. Further investigation confirmed that each package contained one kilogram of cocaine. Officer Bird subsequently took steps to ascertain the owner of the suitcase and then contacted the RCMP.

[7] Constable Walker Vieira (“Cst. Vieira”) examined the other contents of the suitcase. These included a white sock, pair of Nike shoes and tank tops. He sent the sock and identification tags for forensic analysis. He obtained a DNA sample from Mr. Black. There were two DNA samples on the sock. One sample matched that of Mr. Black. The source of the other is unknown. A handwriting expert concluded that the handwriting on one of the identification tags was probably the same as that on Mr. Black’s E311 Customs Declaration Card. Cst. Vieira called Mr. Black’s home months later and left a message. Mr. Black attended the RCMP detachment on May 22, 2013, where he was arrested.

Mr. Black’s Evidence

[8] Mr. Black denied any knowledge of the drugs found in his luggage. He also denied checking in the luggage in which the drugs were found.

[9] Mr. Black first visited Antigua in January 2012. He travelled with the suitcase and filled it with his clothing and gifts of clothing for his then Antiguan girlfriend. She had a clothing business. He gave her the luggage with the handwritten tag which bore his name still attached to it. He wrote his name on the card before going to Antigua.

[10] He visited his native Jamaica in September 2012 to see his wife. Upon his return his Antiguan girlfriend invited him to a wedding. He decided to go. He left Canada six to seven days prior to November 21, 2012. He travelled with a suit bag which contained his suit and other bags. He did not have any checked in luggage.

[11] He attended the wedding on a Saturday and prepared to return to Canada on the following Sunday. His girlfriend, who had been talking to him about continuing their relationship, persuaded him to stay a couple of days longer. He did so despite telling her that he wished to end their relationship. He remained in Antigua until the following Wednesday. He never saw the suitcase he had given his girlfriend in January 2012. He left Antigua on a sour note because his girlfriend blamed him for the break-up of their relationship.

[12] On November 21, 2012, he took a taxi to the Antiguan airport. He had two hand bags and a suit bag. Upon arrival at the Toronto Pearson airport, he told the primary inspection officer that he had attended a friend’s wedding. He gave her two names; the name of his Antiguan girlfriend and the name of the female friend who had gotten married. The officer referred him for a secondary inspection.

[13] In January 2013, his mother told him that a police officer was looking for him. He ultimately surrendered to the police and voluntarily gave them a DNA sample. He did not check the suitcase on the airline in Antigua.

Crown’s Submissions

[14] The Crown submits that Mr. Black’s testimony lacks an air of reality and should be dismissed as untrue and incapable of raising a reasonable doubt. The Crown submits that it is similarly inconceivable that Mr. Black’s girlfriend, presumably because of the break-up of her relationship with Mr. Black, would be implicated, without Mr. Black’s knowledge, in sending fifteen kilograms of cocaine to Canada.

[15] The Crown submits that Mr. Black was conscripted to bring back the drugs to Canada at which point an unknown worker would have removed it from the aircraft. But for the random offload inspection conducted by Officer Bird, the shipment of cocaine would have been retrieved by an unknown worker at the airport.

Defence Submissions

[16] Mr. Struthers submits that the Crown has patently failed to prove beyond a reasonable doubt that his client had any knowledge of the presence of the suitcase on the airplane.

[17] He submits that: (1) Many persons had access to the luggage. (2) There is no direct evidence that Mr. Black checked in the luggage in Antigua. (3) There is no evidence regarding what happened to the luggage in Antigua. (4) There is ample evidence of internal conspiracies among the staff at the Antiguan airport and that any number of persons could have been involved in the importation scheme. (5) Mr. Black’s failure to retrieve the luggage from the carousel constitutes proof that he did not know about it. (6) The size of the Nike shoes found in the suitcase, which did not match Mr. Black’s shoe size, constitutes some evidence that Mr. Black did not check in the luggage. (7) Mr. Black was never shaken in cross-examination that he had left the suitcase in Antigua in January 2012.

Analysis

[18] The Crown clearly bears the burden of proving Mr. Black’s guilt beyond a reasonable doubt. Mr. Black is not required to prove anything. Specifically, he is not required to prove the existence of “internal conspiracies” at the Antigua airport or that unknown workers at that airport were involved in sending the suitcase filled with contraband to Toronto. All he is required to do is to raise a reasonable doubt in the Crown’s case. This can be done if I believe his evidence, or alternatively, find that it is capable of raising a reasonable doubt in the Crown’s case.

[19] There are four possible scenarios which may explain how the cocaine-filled suitcase came to be found at the airport. These are: (1) It was placed on the flight by Mr. Black. (2) It was placed on the flight by a person or persons, unbeknownst to Mr. Black. (3) It was brought into Canada by Mr. Black but he abandoned his intention to retrieve it from the carousel. (4) It was brought into Canada by Mr. Black for someone who intended to retrieve it from the aircraft.

[20] Mr. Black has denied any knowledge of the suitcase having been placed on his flight. His evidence suggests that the person or persons involved would have gotten the suitcase from his Antigua girlfriend who he gave it to in January 2012.

[21] Suffice it to say that I find Mr. Black’s testimony to have been unworthy of belief or incapable of raising a reasonable doubt in the Crown’s case for the following reasons. He claimed that he gave his girlfriend the suitcase for her to use in her clothing business. If that was the case, why would she have scrupulously kept the identification tag with Mr. Black’s name and address attached to the suitcase from January to November, 2012? One would have thought that if that had happened, she would have removed the tag from the suitcase.

[22] Second, Mr. Black testified that his girlfriend was angry with him for breaking up their relationship and that presumably, she could have gotten back at him by sending the cocaine-filled suitcase on the plane he was travelling.

[23] While anything is possible, it simply defies common sense or reason to believe that Mr. Black’s girlfriend would have sent, or been involved in sending, fifteen kilograms of cocaine, valued at $527,800 to $678,600 at the kilogram level or $1,206,400 to $1,658,800 at the gram level, on the plane he was travelling, to an unknown person. There is simply no evidence before me to lend credence to this theory. I cannot take judicial notice of the fact that corruption at the Antigua airport is so endemic that it is entirely possible for unknown persons to have found out about Mr. Black’s travel arrangements, the delay of his travel plans, his intended flight itinerary, the fact that he had left a suitcase with his girlfriend ten months earlier, and the fact that his girlfriend would have been mad at him to a point of giving them his previously-owned suitcase.

[24] Third, how would the unknown persons have gotten hold of Mr. Black’s sock, without his knowledge, and place it within the suitcase? Did he leave the sock and its other side with his girlfriend in January 2012? If he did, would she have diligently kept it until his return to Antigua ten months later? In my view, it would make absolutely no sense for her to have done so.

[25] Mr. Struthers suggests that the presence of an unknown person’s DNA on the sock and the fact that the Nike shoes found in the suitcase do not fit Mr. Black point to the involvement of an unknown person in the importation scheme. That however, does not eliminate the involvement of Mr. Black in the scheme. In my view, the nature of the evidence does not lend itself to a conclusion that Mr. Black is an innocent victim of a bizarre set of circumstances or diabolical scheme.

[26] Based on the following evidence, I find that the Crown has proven Mr. Black’s guilt beyond a reasonable doubt: (1) The suitcase belonged to him. (2) His name and address were on two identification tags on the suitcase. (3) The suitcase travelled from Antigua to Canada on the same flight as Mr. Black. (4) Mr. Black’s DNA was found on a clothing item within the suitcase.

Conclusion

[27] Mr. Black is found guilty of the charge of importing cocaine.

André J. Released: June 7, 2016