CITATION: R v. Cornick, 2016 ONSC 7941

COURT FILE NO.: CRIMJ(F) 1201/15

DATE: 2016 12 19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

J. Geiger, for the Crown

• and -

CRYSTAL MARIE CORNICK

ACCUSED

A. Kenawy, Counsel for the Accused

HEARD: November 21, 22 and 23, 2016

REASONS FOR JUDGMENT

LEMAY J

1The accused, Crystal-Marie Cornick travelled to Jamaica in January of 2015, allegedly to visit her boyfriend for two weeks. She travelled back to Canada on January 19^th, 2015 with three suitcases. One of these suitcases had been purchased for her in Jamaica by someone. When that suitcase was inspected by the Canada Border Services Agency (“CBSA”), it was found to have a false bottom, which contained just over two (2) kilograms of cocaine.

2As a result, the accused was charged with importing cocaine from Jamaica. The indictment reads:

THAT SHE, the said CRYSTAL MARIE CORNICK, unlawfully did, at the City of MISSISSAUGA, in the province of Ontario, on or about the 19^th day of JANUARY in the year 2015, import into Canada a schedule I substance, to wit: Coca (Erythroxylon), its preparations, derivatives, alkaloids and salts, namely Cocaine (benzoylmethylecgonine), contrary to Section 6(1) of the Controlled Drugs and Substances Act.

3The Crown called Ms. Aimee Walker, an officer with the Canada Border Security Agency who found the cocaine during secondary inspection. The Crown also called Mr. Eryn Martin an officer with the RCMP’s Toronto Airport Detachment. The accused also testified in her own defence.

4There were also a number of exhibits that were filed in this case.

The Facts

5At the outset of the hearing, counsel for both sides filed a statement of admissions, which sets out certain agreements that I have accepted for the purposes of this decision. That statement reads as follows:

1. Voluntariness- Statements made by Ms. Crystal Marie Cornick to Border Services Officers and Royal Canadian Counted Police officers were all made voluntarily, and were taken in compliance with Ms. Cornick’s Charter protected rights.

2. Date and time- Ms. Crystal Marie Cornick arrived at the Toronto Lester B. Pearson International Airport at approximately 6:15 p.m. on January 19^th, 2015

3. Jurisdiction- Ms. Crystal Marie Cornick travelled from Kingston Jamaica, and arrived in Mississauga, Canada on Jamaica Air flight 1803 on January 19^th, 2015.

4. Identification- Ms. Crystal Marie Cornick was arrested by officials of the Canada Border Services Agency (CBSA) on January 19^th, 2015, and by officials of the Royal Canadian Mounted Police (RCMP) later that same day, and that she is the individual before the Court in answer to the charge.

5. Nature and weight of the substance- Border Services Officers (BSO) discovered 2211.5 grams of cocaine within one of the pieces of luggage carried by Ms. Crystal Marie Cornick.

6. Value- The value of 2211.5 of cocaine in 2015 was between $79,614 and $97,306 if sold at the kilogram level and $176,920 if sold at the gram level.

7. Continuity of exhibits- The drug, documentary, and other exhibits which will be tendered in this case are those seized by the Canadian Border Services Agency from Ms. Crystal Marie Cornick or from the luggage seized from her.

6I will divide the analysis of the facts into three separate time periods: the events before the accused went to Jamaica, the events while she was in Jamaica and the events after she returned from Jamaica.

a) The Events Before the Accused Went to Jamaica

7At the time of her trip to Jamaica, the accused had been employed by Chuck E. Cheese as a cashier, for approximately ten years. She had met a Mr. Dwayne Pitter through a friend in 2009.

8At the time the accused met Mr. Pitter, he was incarcerated in Collins Bay Penitentiary in Kingston for manslaughter. According to the accused’s testimony, Mr. Pitter had been charged with murder but the charge had been reduced to manslaughter because he had been defending himself. I note that I am not relying on this as a fact, but simply as a statement of what the accused believed.

9In any event, the accused and Mr. Pitter started a relationship. A number of envelopes addressed to the accused from Mr. Pitter were filed in evidence. The actual letters were not filed. Some of the envelopes were addressed to the accused using her full name, and some of them were addressed to the accused, but giving her last name as Pitter.

10The accused explained that Mr. Pitter had written her last name on the letters as Pitter because Mr. Pitter had told her that, when he got out of jail, they would get married.

11The accused also testified that she and Mr. Pitter would talk on the telephone on a regular basis, sometimes as often as daily. She also testified that, on occasion, she would conference Mr. Pitter’s grandmother in so that Mr. Pitter could speak to his grandmother. The accused never met Mr. Pitter’s grandmother.

12The accused also provided pictures of Mr. Pitter and herself. She testified that these were taken when Mr. Pitter was in prison. The pictures certainly seem to suggest that this was the case.

13Once Mr. Pitter was released from prison in late 2013, he was extradited to Jamaica. The accused did not see him prior to his extradition, but continued to call him in Jamaica on a regular basis.

14In late December 2014, around New Year’s Eve, the accused and Mr. Pitter were speaking, and Mr. Pitter suggested that the accused come and visit him in Jamaica for a couple of weeks. The accused was reluctant to come and visit as she had bills to pay and insufficient money to fund the ticket.

15Mr. Pitter responded by telling the accused that his uncle was giving him some money for Christmas, and that Mr. Pitter would use that money to pay for the accused to come to Jamaica. He told her that this would be her birthday present, as the accused’s birthday is on January 6^th.

16The accused was still not convinced to travel to Jamaica as she needed new summer clothes. Mr. Pitter told her that his uncle would give her some spending money so she could get some new clothes, and get her nails done.

17A few days before the trip, the accused met with a man who identified himself as Mr. Pitter’s uncle. The accused did not ever learn the name of Mr. Pitter’s uncle. All she learned was that this uncle lived in Toronto and may have owned a restaurant in the west end of Toronto. This man provided the accused with her itinerary as well as $500.00 in spending money.

18Mr. Pitter’s uncle asked the accused to take a suitcase to Jamaica for him. In the suitcase were shoes and clothes. Some were for Mr. Pitter himself, and some were for a friend of Mr. Pitter’s uncle and that friend’s family. The accused agreed to take the suitcase.

19On the day of the trip, Mr. Pitter’s uncle drove the accused to the airport. They did not discuss much other than the cold weather, and the fact that it had snowed. The accused still did not learn the uncle’s name or anything else about him.

20The accused then travelled to Jamaica without incident, arriving there on January 6^th, 2015.

b) The Events in Jamaica

21On arrival in Jamaica, the accused testified that her luggage had been lost. She testified that it had been the suitcase with her clothes in it. She also testified that a number of the other passengers on the plane had also lost their luggage.

22She provided this testimony in part to explain an unsigned lost luggage claim that she had in her possession when she re-entered Canada. She testified that the airline did not make her sign this form or submit it when they gave her suitcase back.

23The accused and Mr. Pitter remained in Kingston, Jamaica for a few days. During that time, the accused’s suitcase was found by the airline and returned to her. In addition, the accused and Mr. Pitter delivered the suitcase that Mr. Pitter’s uncle had given to a family friend, who kept both the suitcase and the clothing and shoes that were in it.

24The accused then testified that she and Mr. Pitter went to Montego Bay where they spent the rest of the trip, as that is where Mr. Pitter lived.

25On January 9^th, 2015, someone purchased a new suitcase, a black Charlie Sport bag, at a store in Kingston Jamaica. The receipt for this suitcase was found amongst the items seized from the accused when she was arrested. However, there was no direct evidence about where that receipt was found, except that Officer Martin testified that, when he was breaking down the seized evidence, he found the receipt inside the suitcase itself.

26On the Friday before she was to return to Canada (which would be January 13^th, 2015), the accused was asked by Mr. Pitter if she would take some fish and fruit back to his grandmother. She identified the fish as snapper, and the fruit as including bread fruit. Mr. Pitter told the accused that she could have half of the food. She agreed to take this food back to Canada. Mr. Pitter then gave her a suitcase on the day before she was to leave. It was the same suitcase that was described in the previous paragraph.

27The fish was stored in the freezer overnight and then packed in the suitcase on the day that the accused left. She was taken to the airport by Mr. Pitter, who helped her with her bags, and may have carried the bag with the fish, fruit and cocaine into the airport for her.

28The accused checked her bags and retrieved them when she arrived in Toronto.

c) The Events at the Airport in Toronto

29The accused landed in Toronto on January 19^th, 2015 and proceeded to customs. She completed her declaration card, and submitted it to the automatic system. The declaration card clearly indicated that she was bringing food back into the country, as well as $150.00 in goods.

30At this point, she encountered Officer Aimee Walker. Officer Walker had a brief discussion with the accused in the customs hall, before she went downstairs to the baggage hall to get her luggage. At that point, Officer Walker decided to have the accused attend a secondary screen.

31At some point in moving through customs and immigration, the accused attended with another customs agent as a result of having declared the food. This officer also wrote on her declaration card, but did not search her luggage.

32The accused then proceeded to the exit where she was referred for a secondary screen. When she arrived at secondary screening, she had a carry-on bag, as well as the two suitcases. At that time, she was asked by Officer Walker if the bags were hers, if they had been packed by her and if they were the bags that she left the country with.

33The accused answered yes to all of these questions. However, one of the bags was the bag that had been bought in Jamaica on January 9^th, 2015. The accused explained this inconsistency as confusion because, at the time the question was asked, only the two bags that the accused actually owned were in front of the customs officer. The third bag was still on the luggage cart to the side, and was not in front of the accused when she was asked these questions.

34Officer Walker testified in cross-examination that there could have been some confusion about these questions when they were asked, as Officer Walker testified that she had asked about two bags.

35Officer Walker testified that the accused responded honestly to the rest of the questions that she was asked.

36After emptying the third bag, Officer Walker noted that it appeared to be heavier than she would expect. She also noticed that it was a soft sided suitcase but, when she tried to touch the counter through the bottom of the suitcase, she felt something in her way. As a result, she had the bag x-rayed. It displayed anomalies in the bottom of the suitcase, and the accused was placed under arrest.

37Officer Walker testified that the anomalies that she noticed in the bag did not come to her attention until the bag was examined closely, and the bag was empty. Officer Walker also testified that she would not have known there was a package in the bottom of the bag if she had not put her hand onto the bottom while the suitcase was resting on the counter.

38Once the accused had been placed under arrest, Officer Walker performed a test with a Narcotic Identification Kit (NIK), and this test revealed that the substance hidden inside the false bottom of the suitcase was cocaine.

39The accused was then re-arrested by the RCMP, who took her to the Peel Regional Police’s lock-up, where she was held overnight and then given bail.

40The RCMP then processed the items found in the luggage as well as the other items seized from the accused, and determined the weight of the cocaine to be 2.2115 kilograms. The items seized from the accused included her cell phone.

41The cocaine was wrapped in food saver and saran wrap and was inside of a cardboard and nylon insert. The black nylon part of the insert was facing upwards in the suitcase, and the suitcase itself was also black. The whole insert was about an inch thick. Officer Martin testified that an observer could not see any indication of cocaine from outside of the packaging. He also testified that these drugs were well-concealed.

42The accused made some efforts to contact Mr. Pitter to determine what had happened to her. On her version of events there was an attempt to call Mr. Pitter from her aunt’s phone as her aunt lived in the same apartment building as she lived in. Mr. Pitter did not respond to these phone calls from the aunt’s house. As well, the accused texted the accused from her cousin’s phone using an electronic communication system called “what’s app”. She made contact with Mr. Pitter, who denied knowing anything about the drugs in her suitcase. Mr. Pitter then blocked this new number, and then the stopped trying to contact Mr. Pitter.

43This summary of events raises some inconsistencies that the Crown points to in support of their theory that the accused knew that she was bringing cocaine into the country. This brings me to the applicable law.

The Law

44This is a credibility case. As a result, the test that applies is as stated in the well-known passage from R. v. W.(D.), where Cory J. stated (at 758):

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, 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.

45In conducting the analysis under W.D., it is important to remember two things. First, this analysis is not a formula. Rather, it is a framework for conducting credibility assessments. Second, if the trier of fact does not know whether or not to believe the accused but is nonetheless in a state of reasonable doubt based on the evidence heard, then the trier of fact must acquit the accused.

46In addition, under the Controlled Drugs and Substances Act, there are four elements that must be proven beyond a reasonable doubt in deciding whether the accused is guilty of the offence in this case. The elements are:

a) That the accused imported a substance;

b) That the substance was cocaine;

c) That the accused knew she was importing a controlled substance; and

d) That the importing was intentional.

47In conducting my analysis, however, it is clear from the agreed facts that the only issue in this case is whether the accused knew that she was importing a controlled substance into Canada. If I am satisfied beyond a reasonable doubt that the accused knew she was importing a controlled substance, then the rest of the elements of the offence are met.

48This brings me to the law on knowledge and on circumstantial evidence. The issue of this type of evidence, and how to approach it, has been explored in detail in R. v. Ukwuaba (2015 ONSC 2953) where Hill J. (at paragraphs 97 and 98) states:

With the prosecution’s reliance on circumstantial evidence in the present case, some review of the principles governing consideration of that form of evidence is warranted. 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, 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.

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), 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, R. v. Yousif, at para. 5; In re B (Children), Financial pressures, not economic status, may amount to a motive to become involved in a profit-motivated crime: R v. Mensah, at paras. 7-13 (leave to appeal refused [2003] R. v. Phillips, at paras. 50-51.

49With these principles in mind, I will now consider and analyze the position of the parties.

The Positions of the Parties

50The Crown argues that the accused’s evidence is not believable, and should not raise a reasonable doubt. In support of that argument, the Crown advances the following points:

a) The accused knows very little about Mr. Pitter’s uncle, and asked no questions about him, or when she met him.

b) The explanation that the accused gives for why she is going on the trip strains credulity.

c) Her explanation for why she told Officer Walker that her bags were all from Canada is not believable.

d) Her demeanour in providing her testimony was problematic.

51In addition, the Crown points to three pieces of evidence that it argues shows that the accused knew the cocaine was in her luggage:

a) The drugs in her suitcase were 30% of the weight of the bag in total, and the anomaly at the bottom of the suitcase could be felt.

b) The statement that she made to Officer Walker about the bags was untruthful.

c) The receipt for the purchase of the bag from Jamaica showed that it had been purchased a week before the accused left Jamaica, which meant that she had to be involved in the plan.

52More generally, the Crown argued that the accused had to know about the plan, as there was a much larger risk to the smugglers if she did not know about the plan. In support of that argument, the Crown points to paragraph 102(6) of Ukwuaba, supra.

53The defence argues that the accused’s evidence should be accepted as believable for the following reasons:

a) The accused had a long-standing relationship with Mr. Pitter.

b) The purpose of the trip was to visit Mr. Pitter, and it was not unreasonable for the trip to have been paid for by Mr. Pitter’s uncle.

c) It was in Mr. Pitter’s interests for the accused not to know about the drugs, as her lack of nervousness or concern would make it more likely that the drugs would make it through customs without being detected.

d) The accused’s testimony was unshaken in cross-examination.

54In the alternative, if I do not accept the evidence of the accused, then the defence argues that I should still find that this evidence when taken as a whole raises a reasonable doubt.

Analysis and Decision

55The Crown’s argument is based on a number of inconsistencies and problems in the accused’s evidence. I will review each of those in turn.

56I start with the accused’s statement to Officer Walker that her bags had travelled with her from Canada. The Crown argues that this was a lie, designed to deflect attention from the bag with the cocaine in it. I reject that assertion. In doing so, I rely on the evidence of both the accused and of Officer Walker. In particular, Officer Walker was clear that there could have been some confusion in the way that she asked the questions. In light of the fact that both parties to this conversation believe that there was some confusion in it, I cannot conclude that the accused lied based solely on this evidence.

57Then, I turn to the accused’s explanation as to the reasons for the trip. The Crown argues that the explanation for this trip strains credulity. I disagree. The evidence shows that the accused had a substantial and long-standing relationship with Mr. Pitter. In reaching this conclusion, I note that there were a number of envelopes addressed to the accused from Mr. Pitter. These all had postmarks from prior to 2014, indicating that there was a relationship prior to 2014.

58In my view, it is not unusual or unexpected for someone in a long-distance relationship to offer to use money that they have received to pay for a trip for their partner for a visit. As a result, I do not think that the explanation that the accused has offered strains credulity. It is, instead, an entirely reasonable explanation.

59This brings me to the Crown’s assertion that the accused must have known about the plan to courier drugs in order to ensure that the cocaine was delivered to the intended recipient. Although this is generally a very forceful argument in “blind courier” cases, I reject it in this case for two reasons. First, I must give adequate weight to the defence’s argument that Mr. Pitter gained an advantage in having the accused not know about the drugs because the accused would be less nervous going through customs. Indeed, Officer Walker testified that the accused was not nervous when she was being interviewed in the secondary inspection area. Further, in this instance, there was a method for the drugs to reach the intended recipient, as the uncle was supposed to pick up the fish and suitcase to deliver to Mr. Pitter’s grandmother.

60I must also consider the weight of the bag and the timing of its purchase. I acknowledge that the drugs were a significant component of the weight of the bag when it was empty, but this fact has to be considered along with the following evidence:

a) Officer Walker testified that she would not have known there was a package in the bottom of the suitcase without a close inspection. Officer Walker only noticed the package when the bag was empty and she put her hand to the bottom, and felt the package as an obstacle to being able to touch the counter. She testified that, since it was a soft sided bag, she should have been able to feel the counter through the side of the bag.

b) Officer Walker also testified that she noticed that the bag felt heavy, in an off centre kind of way when it was empty, but that she had not noticed any anomalies when it was full.

c) Officer Walker and Officer Martyn both testified that the cocaine was very well concealed in the bag.

d) The accused testified that she looked in the bag before she came to Canada, but that the contents (the fish and fruit) had been obtained by others. All she did other than looking in the bag to check the contents was to place three rocks from the beach in the bag as souvenirs for her nephew. The Crown did not explore this evidence in any detail in cross-examination.

e) The accused also testified that her boyfriend helped her with her luggage at the airport, and may have even carried the bag with the cocaine in it into the airport and lifted it onto the baggage check-in.

61I draw two conclusions from this evidence. First, the anomalies in the suitcase were noticeable, but only when the baggage was empty and only on close inspection. Indeed, I accept Officer Walker’s testimony that she would not have known there was a package in the bottom of the suitcase without a physical inspection.

62Second, in terms of the accused’s handling of the suitcase, I note that the Crown cross-examined her on this. However, the Crown was not able to establish either that the accused had handled the suitcase in Jamaica when it was empty or that she had failed to inspect its contents.

63I now turn to some of the more troubling arguments raised by the Crown. The first, and most important, is that the accused knew very little about Mr. Pitter’s uncle. She did not even know his name. This part of the testimony does raise credibility issues. If the accused’s version of events is to be believed, then she was in a serious relationship with Mr. Pitter. Spending time with her partner’s uncle and not even asking his name does strain credulity.

64The Crown also pointed to the accused’s demeanour in giving her evidence as demonstrating her lack of credibility. The manner in which witnesses give evidence should be given less consideration than the evidence itself, as witnesses will present differently when required to testify.

65In this particular case, I must also give due weight to the submissions of defence counsel. He described his client as being naïve. I agree with this description. I also note that the accused was unsophisticated and had difficulty understanding some of the questions put to her, including some of the questions her own counsel asked her.

66However, there is one part of the accused’s testimony that does concern me. Once she returned to Canada, the accused testified that she tried to contact Mr. Pitter but that he was not responding to or returning her calls. The problem with this explanation is that the accused’s cell phone had been seized by the RCMP and was in their possession at the time that the accused testified she tried to call Mr. Pitter. Her explanation that she used her aunt’s phone does not explain why Mr. Pitter would not respond to a call from the accused’s aunt’s telephone. It would not have been a number that he recognized.

67I have reviewed these inconsistencies individually to determine whether any of them are in fact inconsistencies. There are a few that are inconsistencies and raise some issues with the accused’s credibility. I now must step back and consider the evidence as a whole to see whether it leads to the conclusion that the accused knew that she had cocaine in her suitcase. As Hill J. notes in Ukwuaba, supra, circumstantial evidence is to be evaluated cumulatively.

68In my view, the cumulative effect of these inconsistencies is to cast considerable doubt on the believability of the accused’s story. In particular, I am concerned about the fact that the accused knew nothing about Mr. Pitter’s uncle, and did not find anything out about him. I am also concerned about the accused’s testimony about how she tried to contact Mr. Pitter when she returned to Canada.

69These inconsistencies leave me in a position where I cannot accept the accused’s story. In other words, I do not believe her evidence.

70I agree with Crown Counsel’s submission that the accused’s story requires some coincidences to be true. I also agree with Crown Counsel’s submission that the accused’s version of events limits her involvement with the suitcase containing the cocaine.

71Even with the frailties discussed above, however, the accused’s story is still plausible, and there are certainly believable aspects to that story. Those aspects include the fact that there was a relationship of some description with Mr. Pitter, and the fact that the accused going on this trip fits with that explanation. In addition, there is the accused’s relative lack of sophistication.

72In the circumstances, therefore, I find myself in a position where I do not believe the accused’s story. However, when I consider all of the evidence together, including the accused’s lack of sophistication, I am left with a reasonable doubt.

73As a result, I find the accused not guilty.