COURT FILE NO.: CRIM (NJ) 794/15 DATE: 20170411 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MELESHA SYD-ANN BRYAN Defendant

COUNSEL: J. Geiger for the Crown L. Liscio for the Defendant

HEARD: April 3, 4, 5, and 6, 2017

REASONS FOR JUDGMENT

Ricchetti, J.:

THE CHARGE

[1] Ms. Bryan is charged with importing into Canada a controlled substance, namely, cocaine on December 11, 2013 contrary to s. 6(1) of the Controlled Drugs and Substances Act.

THE EVIDENCE HEARD AT TRIAL

[2] The evidence at trial consisted of:

a) Statement of Admissions; b) the evidence of CBSA Officer Eric Cullen; and c) the evidence of RCMP Officer Jean Francois Loriot.

[3] No evidence was called by the Defence.

THE FACTS

[4] On December 6, 2013, Ms. Bryan travelled to Jamaica for a funeral. On December 11, 2013, Ms. Bryan returned to Canada by air. Ms. Bryan arrived with two suitcases.

[5] Ms. Bryan, did not declare fruits, vegetables or alcohol on her E311 Declaration Card despite the fact she was bringing such items back with her into Canada.

[6] Ms. Bryan was sent to Secondary Inspection. In response to questions from the CBSA Officer, Ms. Bryan agreed that the two suitcases were hers, she had packed them, she knew the contents, and that they were the same suitcases she had when she left Canada.

[7] The suitcases contained clothing and some souvenir items. The suitcases also contained fruits (including sugar cane and banana chips), vegetables, two bottles of rum, a number of other bottles of wine and nine cans of vegetables.

[8] The cans of vegetables were:

a) three cans of ackee; b) three cans of callaloo; and c) three cans of Irish moss.

[9] CBSA Cullen placed the nine cans in the x-ray machine. He saw dark spots on seven of the nine cans. He looked at the cans more closely. He noticed that the cans had excessive glue on the labels and appeared as though the labels had been replaced.

[10] CBSA Cullen opened one of the cans with a dark spot. Inside he found liquid cocaine.

[11] It turned out that the dark spots observed on the x-ray were the locations where holes had been made in the metal sides of the cans, the contents exchanged with the liquid cocaine, the holes were sealed and labels re-affixed. The Crown witnesses agreed this is a relatively sophisticated method of importation.

[12] Ms. Bryan was arrested. Ms. Bryan was calm and collected before her arrest. Ms. Bryan remained calm and collected during and after her arrest. She was cooperative throughout.

[13] The RCMP had the contents of the nine cans tested by Health Canada. Seven cans contained liquid cocaine. Two of the smaller Irish moss cans contained no cocaine.

[14] The total amount of cocaine in the seven cans was 2,319 grams of pure cocaine.

[15] The value of the cocaine in the seven cans was between $103,500 and $185,520 depending on the manner in which the cocaine was sold or trafficked.

SOLE ISSUE

[16] The sole issue in this case was whether the Crown had proven beyond a reasonable doubt that Ms. Bryan knew the cans contained cocaine.

THE POSITION OF THE PARTIES

[17] The Crown submits that, the circumstantial evidence, establishes beyond a reasonable doubt that Ms. Bryan knew the cans contained cocaine. The Crown submits it is the only reasonable inference to be drawn from the circumstantial evidence.

[18] The Defence submits that it is not the only reasonable inference to be drawn from the evidence that Ms. Bryan knew that the cans contained cocaine. Accordingly, the Defence submits that there is reasonable doubt as to this essential element.

THE LAW

Circumstantial Evidence

[19] There is no direct evidence Ms. Bryan knew that the cans contained a controlled substance. The evidence on this essential element is entirely circumstantial. However, it is not necessary to prove knowledge by direct evidence - knowledge can be established through circumstantial evidence. See R. v. Meggo.

[20] Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred". See R. v. Cinous, 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at page 172.

[21] The inference must be reasonably and logically draw from a fact or facts established by the evidence. R. v. Morrissey, 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess": United States v. Huynh, 200 C.C.C. (3d) 305 (Ont. C.A.) at 307.

[22] In R. v. T.(W.), 2016 ONSC 3943 Justice Hill set out certain principles regarding the use of circumstantial evidence to draw inferences:

136 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, 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, for example demeanour or opportunity, 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.

137 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, 129 C.C.C. (3d) 321 (S.C.C.), 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, 2008 SCC 53, [2008] 3 S.C.R. 41 (S.C.C.), at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12 (Alta. C.A.), at para. 5; B (Children), Re (2008), [2009] 1 A.C. 11 (U.K. H.L.), at paras. 5, 15, 70.

138 In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative "innocent" explanations other than the prosecution's theory of guilt, the court is not limited to inferential explanations based on "proven facts" but rather may take into account, as to whether reasonable doubt exists, alternate rational possibilities grounded in the evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 (S.C.C.), at paras. 57-8; Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 (S.C.C.), at para. 33; R. v. Bui, 2014 ONCA 614 (Ont. C.A.), at paras 22-9; R. v. Campbell, 2015 ABCA 70 (Alta. C.A.), at paras. 51-3; R. v. Dipnarine, 2014 ABCA 328 (Alta. C.A.), at paras. 22-28; R. v. Pryce, 2014 BCCA 370 (B.C. C.A.), at paras. 6-12; R. v. Maxie, 2014 SKCA 103 (Sask. C.A.), at para. 35; R. v. Robert, 143 C.C.C. (3d) 330 (Ont. C.A.), at paras. 14-25.

[23] The proper approach for drawing inferences from circumstantial evidence was recently discussed in R. v. Villaroman, 2016 SCC 33:

[35]... Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in R. v. Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[50] When dealing with the defence position, the judge correctly stated the law, in my opinion. The judge properly noted that “the accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty of the offences with which the Crown has charged him”: para. 47. The judge’s citation of McIver was intended to make the same point, i.e. that a reasonable doubt cannot arise from speculation or conjecture. This is perfectly correct. As the Court said in R. v. Lifchus, “a reasonable doubt must not be imaginary or frivolous”; need not be proof to an absolute certainty; and must be based on “reason and common sense”: paras. 31 and 36. The burden on the Crown does not extend to “negativing every conjecture”: R. v. Paul, [1977] 1 S.C.R. 181, at p. 191.

(emphasis added)

Value of the Controlled Substance as Circumstantial Evidence

[24] The authorities are replete with references to the value of the controlled substance as circumstantial evidence of an accused's knowledge of the item he or she had control of. See R. v. Blondin, 2 C.C.C. (2d) 118 (B.C. C.A.), per McFarlane J.A. at p. 121 (aff'd , [1971] S.C.J. No. 42 (S.C.C.)):

As to the second ground of appeal, I think evidence of the retail value of the drug was relevant to the main question that the jury had to decide, namely, whether or not the respondent knew that the substance he imported was a narcotic. I think this evidence was so relevant because it could, in the opinion of the jury, tend to satisfy them of the existence of that knowledge.

(emphasis added)

ANALYSIS

[25] In this case, the evidence is that there were in Ms. Bryan's suitcase nine cans of food products, with what appear to be typical labels of three different types of product.

[26] Let me deal with the circumstantial evidence which does not assist greatly on the central issue of Ms. Bryan’s knowledge:

a) The “re-glued” labels were not noticeable until after the CBSA Officer discovered the anomaly in the x-ray. Accordingly, there is no evidence whether Ms. Bryan would have carefully inspected or was aware the cans appeared to have altered labels; b) The E311 Customs Declaration Card contained errors which might be described as lies. Ms. Bryan did not declare the fruits and vegetables or the quantity of liquor in her suitcases. However, the Crown witnesses agreed it is common travellers fail or do not to accurately declare what is in their suitcases. With this evidence, the lack of an accurate E311 does not assist on the issue of Ms. Bryan’s knowledge of the contents of the cans; and c) Ms. Bryan's demeanor throughout was calm, collected and cooperative even when arrested for importing cocaine. Was it because she knew the cans were full of cocaine? Was it because she was in shock? There could be a number of reasons consistent and inconsistent with knowledge of the contents of the cans. This demeanor evidence adds very little the issue of Ms. Bryan’s knowledge.

[27] I agree with the Defence submission that these facts, individually, do not support an inference of Ms. Bryan's knowledge of the contents of the cans. However, the court must consider the cumulative effect of the entire evidence. Even doing so, I am not persuaded that the evidence referred to above assists in deciding the central issue of Ms. Bryan’s knowledge.

[28] What is the circumstantial evidence regarding Ms. Bryan’s knowledge the cans contained cocaine?

a) Ms. Bryan told the CBSA officer that she was aware of the contents of her suitcase; b) The cans are easily disposable, either individually or collectively; c) The cocaine in the cans has a value of between $103,500 and $185,520; and d) The cans were going to go to Ms. Bryan's home - that was the address on the suitcases. Ms. Bryan would retain exclusive control over the cans after she left the airport.

[29] The Defence concedes that one reasonable inference to be drawn from the evidence is that Ms. Bryan knew the cans contained cocaine.

[30] That brings us to the crux of this case: Is there any other countervailing reasonable inference, for example that the accused was a blind courier, which is "grounded in the evidence" and not conjectural hypothesis, that Ms. Bryan did not know the cans contained cocaine?

[31] There is no obligation on the Defence to show another reasonable inference. The onus is always on the Crown to establish beyond a reasonable doubt that the only reasonable inference is that Ms. Bryan knew the cans contained cocaine, the Defence was asked in its closing submissions what other reasonable inferences arise inconsistent with Ms. Bryan’s knowledge of the contents of the cans.

[32] As Justice Hill explained in R. v. T.(W.), it is not a reversal of the onus to ask the Defence whether other inferences the Defence points to are speculation, conjecture or irrational inferences:

139 Further, while there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences: R. v. Fraser, 2016 BCCA 89 (B.C. C.A.), at para. 73; R. v. Mufuta, 2015 ONCA 50 (Ont. C.A.), at paras. 22, 26, 47-9; Griffin, at para 35; R. c. C. (D.), 2012 SCC 48, 290 C.C.C. (3d) 64 (S.C.C.), at paras. 25, 28; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.), at paras. 35, 42.

One reasonable inferences from the evidence is that Ms. Bryan knew the cocaine was in the cans?

[33] As stated above, the Defence conceded that one reasonable inference from the evidence was that Ms. Bryan knew the cans contained cocaine.

[34] In my view, this inference is reasonable and readily available based on the evidence given the circumstantial evidence set out above.

Is Absence of Evidence an issue in this case?

[35] In some cases, the lack or absence of evidence may fail to establish an essential element beyond a reasonable doubt. In this case, there is only one essential element at issue – Ms. Bryan’s knowledge as to the contents of the cans.

[36] If the only reasonable inference to be drawn from the evidence is that Ms. Bryan knew the cans contained cocaine, then this finding of fact will establish proof beyond a reasonable doubt of the remaining essential element in this case because there are no other reasonable inferences other than guilt.

Does the Reasonable Inference establish proof beyond a reasonable doubt?

[37] As stated in Villaroman at paras. 36 and 37, the court should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. These “other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or absence of evidence, not speculation.

Other Plausible Theories or Other Reasonable Possibilities?

[38] The difficulty with other theories or possibilities is that there is no evidence to ground such theories or possibilities.

[39] For example, there is no evidence whether Ms. Bryan bought the cans at a supermarket. There is no evidence that Ms. Bryan was given the cans by a third person. There is no evidence that Ms. Bryan altered the cans herself. Each of these hypotheses would be speculation and not be “based on logic and experience applied to the evidence”.

[40] Other theories or possibilities that Ms. Bryan did not know there was cocaine in the cans raise highly questionable problems based on reason and common sense:

a) If Ms. Bryan didn’t know the cans were full of cocaine, she might have given them away, thrown them out, eaten the contents – none of which make sense to an importer of this highly valuable and illicit product who wants to protect, retrieve and sell the cocaine for a profit. As stated in R. v. Ukwuaba, 2015 ONSC 2953: “First, drug dealers would be very unlikely to confide hundreds of thousands of dollars' worth of drugs to the sole control of a person who was not a trusted member of the conspiracy...”; and b) If Ms. Bryan didn’t know the cans were full of cocaine, how would the cans be retrieved before they were disposed of. One would have to speculate as to how the “importers” would retrieve their valuable shipment of cocaine from an unsuspecting courier. Again, none of this makes sense to an importer of this highly valuable and illicit product who wants to protect, retrieve and sell the cocaine for a profit.

The Defence Submission on Other Reasonable Inferences

[41] The Defence suggested that other reasonable inferences could arise from the evidence of:

a) The cans could have been souvenir items, like other items in the suitcases; b) sophistication of the manner of importation; and c) method of concealment.

Souvenirs

[42] The difficulty with this submission is that there is no evidence the cans were intended for other persons. The cans were going to leave the airport in Ms. Bryan’s possession and control. What Ms. Bryan intended to do with the cans later would be speculation.

[43] This submission necessarily engages pure speculation.

Sophistication of the Method of Importation

[44] This submission is very closely related to the method of concealment, but since separate submissions were made on sophistication of importation and the method of concealment, let me deal with them separately.

[45] The Defence submits that Ms. Bryan was only in Jamaica for six days and the manner and sophistication of the method of importation is inconsistent with such a short stay.

[46] I disagree. There is no evidence as to how long it would take to make holes in the cans, drain them, fill with liquid cocaine, fix the hole and reapply a label to seven cans. It would be speculation that this could not be done within the six days that Ms. Bryan was in Jamaica.

[47] It would be speculation as to whether or not Ms. Bryan is sophisticated in importation. Besides, even if she wasn't sophisticated, that doesn't necessarily mean that the substitution of the vegetables for the cocaine was done with or without her knowledge by others and it cannot be said that perhaps the cans were ready for export even before she arrived in Jamaica.

[48] The sophisticated method of importation does not lead to another reasonable inference consistent with the lack of knowledge.

Method of Concealment

[49] The Defence relies heavily on the method of concealment. Essentially, the Defence submits that if one looks at the cans, the person would not know that the cans contain cocaine rather than the vegetables appearing on the labels. The cans appear to have proper identifying labels of the vegetable contents.

[50] This submission misses the point. The issue is not whether a reasonable observer would have knowledge of the cocaine by looking at the cans. The issue the Crown must prove beyond a reasonable doubt is whether Ms. Bryan had knowledge of the contents.

[51] Importers know that their suitcases and contents can be the subject of an inspection. Every method of concealment is intended to overcome a cursory inspection. The mere fact the method of concealment is very good does not necessarily result in a reasonable inference that Ms. Bryan didn’t know the content of the cans was cocaine.

Conclusion on Other Theories or Possibilities

[52] The Crown's reliance on circumstantial evidence to establish proof beyond a reasonable doubt does not require the Crown to exclude every theory consistent with innocence. See Villaroman, at para 37. The issue “is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”. See Villaroman at para 38.

[53] I conclude that other theories or possibilities are speculative and not based on the evidence or on reason and common sense.

[54] That leaves this court with only one reasonable inference to draw from the circumstantial evidence – Ms. Bryan knew that the contents of the cans contained cocaine.

CONCLUSION

[55] I am satisfied that the only reasonable inference from the evidence is that Ms. Bryan knew the cans contained cocaine when she brought the cans into Canada. Proof of this fact beyond a reasonable doubt supports commission of the unlawful importation.

[56] Ms. Bryan is guilty as charged.

Ricchetti, J.

Released: April 11, 2017