CITATION: R. v. Gill, 2017 ONSC 3558

COURT FILE NO.: CR-13-0029

DATE: 2017 06 09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Robert Johnston, for the Crown

• and -

KARAMJIT KAUR GILL

David Heath, for the Defendant

HEARD: April 4, 5, 11, May 2, 16, 2017

REASONS FOR JUDGMENT

Fairburn J.

(I) Overview

[1] On December 3, 2010, 3.3 kilograms of heroin arrived at Pearson International Airport from Pakistan. The drugs were secreted in one of thirty boxes destined for Saeed Ali Garments at 375 Mill Street South, Brampton. The RCMP replaced the heroin with a control sample and inert substance. It is agreed that almost two weeks following its arrival in the country, Ms. Gill picked up the boxes from Air Cargo Incorporated [ACI], a cargo forwarding company. Over the next eighteen minutes, the police followed Ms. Gill and watched as she drove her van in a tangled route, punctuated at the end by her arrest.

[2] She now faces a three count indictment:

(1) attempt to possess heroin for the purpose of trafficking on December 15, 2010 contrary to s. 5(2) of the Controlled Drugs and Substances Act and thereby committing an offence under s. 463 of the Criminal Code;

(2) importing heroin into Canada on December 3, 2010 pursuant to s. 6(1) of the CDSA; and

(3) resist a peace officer engaged in the execution of his duty pursuant to s. 129(a) of the Criminal Code.

[3] These are my reasons for judgment.

(II) The General Factual Backdrop

[4] The trial commenced with counsel filing an agreed statement of facts. There were also non-contentious facts elicited during the viva voce evidence of two police officers. The following things are not in dispute:

(i) A shipment of 30 boxes arrived at Pearson International Airport on December 3, 2010. They came from Pakistan.

(ii) One of the boxes contained a large fabric belt, about two feet long and ten inches wide. The belt contains several pockets from which eighteen solid packets of heroin were retrieved. The heroin weighed 3.3 kilograms.

(iii) The 30 boxes were consigned to “Saeed Ali Garments of 375 Mill Street South, Brampton, Ontario”.

(iv) ACI is a “Cargo forwarding company that disseminates cargo to the consignee or persons authorized by the consignee to take delivery of the Customs Cleared Cargo”. On December 3, 2010, a person by the name of “Saeed” attended at ACI and inquired about the shipment. Over the next 12 days, ACI received multiple calls from “Saeed”, “Saeed Ali” and “Amir”, all making inquiries about the shipment. There is no evidence that a woman called to inquire about the shipment.

(v) The police replaced the 3.3 kg of heroin with a control sample of heroin and an inert substance. The RCMP held onto the box containing the control sample and released the other 29 boxes to ACI.

(vi) The box containing the control sample was a standard, large cardboard box with writing on the outside. Sgt. Johnson testified that there was nothing distinctive about the box containing the heroin. While there is a long number written on the outside of the box, a number that happens to correspond to the waybill number, there is nothing on the outside of the box that refers to its extra-jurisdictional origin.

(vii) At 9:51 p.m. on December 15, 2010, Ms. Gill attended at ACI in a mini-van. Her identity is conceded. She produced a letter signed by “S. Ali” The letter reads:

I saeed ali of above address (saeed ali garments) authorize karamjit kaur, to pick up this shipment on my behalf, I will be liable for the transportation charges for the sum of $300 dollers upon delivery. Thanks. [sic]

(viii) The 30 boxes, including the one with the control sample, were then loaded into Ms. Gill’s van. There is no evidence that she participated in loading the boxes or watched as they were loaded. She then drove away.

(ix) Undercover police vehicles followed Ms. Gill when she departed ACI. I will shortly review the observations made.

(x) She was arrested eighteen minutes later with the box containing the control sample still in the van.

(xi) At the time of her arrest, she was in possession of three letters from “Tall Pines School” at 8525 Torbram Road, Brampton. The letters reference a debt owing to the school. The final letter suggests that if $4,682 is not paid immediately, the child’s placement at the school would be reviewed. The parties do not agree upon the evidentiary value of these letters.

(xii) The expert report of Cpl. Rodney Gray was filed on consent. The report suggests that the quantity of heroin seized represents an eighteen-year supply for a heavy user. If sold at the gram level, the heroin would be worth just shy of one million dollars. If knowledge is proven, counsel agree that the amount of heroin involved is of a sufficient quantity to be deemed to be possessed for the purpose of trafficking.

(III) General Legal Principles

[5] Ms. Gill started this trial with the presumption of innocence and the Crown carries the burden of displacing the presumption with proof beyond a reasonable doubt that she committed the crimes with which she is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27.

[6] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone. It is a doubt based on reason and common sense and one that logically arises from the evidence or absence of evidence. While likely or probable guilt is not enough, it is nearly impossible to prove something to an absolute certainty. If after considering all of the evidence, I am sure that Ms. Gill committed the offences, then I will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that she committed the offences, then I will not be satisfied of proof beyond a reasonable doubt. (See D. Watt, Watt's Manual of Jury Instructions, 2nd Ed., Thomson Reuters Canada Ltd., 2015, Final 13, "Reasonable Doubt"; and Lifchus, at paras. 36-40.)

[7] At the end of the trial, counsel provided their closing submissions. While they originally focussed on the issue of knowledge of the controlled substance as the core issue at trial, they were later asked to attend to provide submissions regarding knowledge of the origin of the controlled substance for purposes of the importing offence. I have taken into account all of the submissions provided.

[8] Mr. Heath emphasizes the circumstantial nature of this case. He cautions the court about the dangers associated with drawing inferences from circumstantial evidence and the great care that must be exercised when engaging in this task. He reminds the court that guilt should only be drawn from circumstantial evidence where it is the only reasonable or rational inference permitted by the evidence. Mr. Heath stresses that, in this case, there are rational inferences other than that Ms. Gill knew she was transporting a controlled substance and that it had arrived from Pakistan. Given the existence of these other rational inferences, Mr. Heath argues that the Crown has failed to prove the offences beyond a reasonable doubt and Ms. Gill must be acquitted.

[9] I agree that this case is an almost purely circumstantial one, particularly as it relates to the issues of contention. In R. v. Villaroman, 2016 SCC 33, Cromwell J. reviewed the correct approach to circumstantial evidence and the inference drawing process. Where one or more element of an offence relies largely or exclusively on circumstantial evidence, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: Villaroman, at para. 30. Staying focussed on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not “fill in the blanks” or “jump to conclusions” too quickly: Villaroman, paras. 29-30.

[10] While previous cases speak in terms of other “rational” inferences, the unanimous Villaroman court settled upon the term “reasonable”: see, R. v. Griffin, 2009 SCC 28, at para. 33, Villaroman, at paras. 32-34. As Cromwell J. noted in Villaroman, while “reasonable” and “rational” inferences carry the same meaning, and it is not in error to speak in terms of “rational inferences”, the use of the term “reasonable” guards against any confusion that may arise from the use of “reasonable doubt” and “rational inference”.

[11] Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4, at para. 58, the defence does not have to “‘prove’ certain facts in order for the jury to draw an inference of innocence from them”. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the “range of reasonable inferences that can be drawn” from the circumstantial evidence. As in Villaroman, at para. 35, “[i]f there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.”

[12] A theory alternative to guilt is not “speculative” simply because there is no affirmative evidence supporting the theory. A “theory alternative to guilt” can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at paras. 36-38.

[13] Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman, at para. 37, adopting R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation. As noted by Cromwell J., at para. 38, 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”.

(IV) Count 3: Attempt to Possess for the Purposes of Trafficking

(i) Overview

[14] For reasons that are not entirely clear, count 3 on this indictment is framed as an attempt to possess for the purpose of trafficking.

[15] In R. v. Chan (2003), 2003 CanLII 52165 (ON CA), 66 O.R. (3d) 577 (C.A.), leave ref’d [2003] S.C.C.A. No. 453, Simmons J.A. concluded that being in possession of a small amount of a control sample is sufficient to constitute the offence of being in possession for the purpose of trafficking. While the quantity of the controlled substance is often an “indicium of purpose”, it is not part of the actus reus of the offence of possession for the purpose of trafficking: Chan, at para. 33.

[16] Moreover, because the mens rea for the offence rests on the actor’s belief, rather than the truth of her belief, the trier of fact is entitled to rely upon evidence regarding the quantity of the controlled substance that the accused “expected to receive to determine the appellant’s purpose for possessing [the drug] at the moment he received the controlled delivery package”: Chan, at para. 40. In other words, what is relevant is the accused’s belief as to what is in the package and not the fact that the belief turns out to be false when the controlled substance has been replaced with an inert substance and small control sample. As Simmons J.A. held in Chan, at paras. 43-4:

… the offence of possession for the purpose of trafficking was complete in this case at the moment the appellant obtained possession of the controlled delivery package containing heroin. What the appellant would have done, or did, later, with the single gram of heroin that was in the package, is not only speculative, it is irrelevant.

Further, the fact that the appellant may have attempted unsuccessfully to possess a larger quantity of heroin for the purpose of trafficking does not negate the successful aspect of his conduct; the unsuccessful attempt is subsumed within the fully completed offence.

[17] Attempts to possess for the purpose of trafficking were also addressed in Chan, where the court maintained that taking possession of a controlled sample, in circumstances such as this, could constitute the “lesser but included offence of attempted possession for the purpose of trafficking”. Section 24 of the Criminal Code clearly applies to s. 5(2) of the CDSA. As Simmons J.A. notes at para. 70: “possession for the purpose of trafficking reflects a progression in behaviour sufficiently advanced to warrant reaching behind it and criminalizing behaviour that amounts to an attempt to achieve that state of affairs.”

[18] There is no dispute that there was a control sample of heroin in the box picked up by Ms. Gill. In these circumstances, the actual offence of possession for the purpose of trafficking could be proceeded upon. It was not. In the end, though, nothing much turns on the legal distinction seeing as an attempt is a clear lesser and included offence.

[19] I will approach this matter, as the Crown has in his closing submissions, as if it has been prosecuted as a completed s. 5(2) offence. If the commission of this offence has been proven beyond a reasonable doubt, in the circumstances of this case, consistent with Chan, so too has the attempt.

(ii) The Surveillance Observations and What They Mean

[20] It is agreed that Ms. Gill was in possession of the controlled substance and that the substance was heroin. It is also agreed that given the amount of heroin involved, if knowledge is proven, then the possession was for the purpose of trafficking. I agree with counsels’ observations on these elements of the offence. Both are well established in the evidence. As for the purpose element, an 18-year supply for a heavy user, yielding just under a million dollars if sold at the gram level, clearly leads to the inference of having a purpose of trafficking. I will not address these essential elements further as they are not contentious.

[21] This leaves the court to determine whether Ms. Gill knew that she was in possession of a controlled substance. The mens rea for the offence of possession for the purpose of trafficking includes knowledge of the nature of the substance, only in the sense that the accused must know that it was a controlled substance. The Crown does not have to prove that the accused had knowledge of the exact drug named in the indictment, as long as it is established she knew the drug was a controlled substance: R. v. Ukwuaba, 2015 ONSC 2953, at para. 102(2); R. v. Burgess, 1969 CanLII 467 (ON CA), [1970] 2 O.R. 216 (C.A.), at p. 217; R. v. Williams, 2009 ONCA 342, at para. 19.

[22] I find that the only reasonable inference that can be drawn from the circumstantial evidence in this case is that Ms. Gill knew she was in possession of a controlled substance. To a great extent, I base this finding on Ms. Gill’s pattern of driving after she left ACI, which I conclude was a direct product of her knowledge that she had a controlled substance in her vehicle. Having considered all of the evidence, the surveillance observations are highly informative of my conclusion in this regard.

[23] The court heard from two officers conducting the surveillance: Sgt. Johnson and Cst. Hulan. Their testimony was delivered with reference to three intersecting maps, showing the route of travel. Cst. Hulan prepared the maps two days following the arrest. I will focus on what they personally observed.

[24] While Sgt. Johnson could not recall whether it was snowing on December 15, 2010, Cst. Hulan has a clear memory of snow. He acknowledged that visibility was not perfect, but maintained that he was able to make clear observations. Sgt. Johnson recalls that there was light traffic when they were making their surveillance observations.

[25] Despite the fact that it was snowing, I find that the officers had no difficulty making their observations that evening. They gave their evidence in a clear way. They were clear about the rare occasions when they lost sight of the vehicle. They had detailed notes of the observations they made, and carefully referenced the notes during their evidence. Cst. Hulan’s observations were so clear that he was able to reconstruct the path taken by Ms. Gill on maps a few days after the observations were made. The officers provided their evidence in a careful and detailed way. I am confident about both the credibility and reliability of their evidence.

[26] Airport Road is a two-way large road travelling along the east side of Pearson Airport with multiple north and south lanes. Silver Dart Drive is a U-shaped road connecting to Airport Road in two locations. It sits to the west of Airport Road. ACI is located on Silver Dart Drive.

[27] Ms. Gill arrived at ACI at 9:51 p.m. and produced the letter from “Saeed ali [sic]”. The boxes were loaded into her van. Cst. Hulan testified that it was 10:31 p.m. when she drove away. Sgt. Johnson made a note that at 10:27 p.m. he heard over the radio that the vehicle was loaded and moving. The difference in the officers’ evidence regarding the time that Ms. Gill actually left ACI does not trouble me. It may be nothing more than that the officers’ clocks were not in sync. In the end, it is not disputed that the time between Ms. Gill’s departure from ACI and her arrest was eighteen minutes.

[28] Sgt. Johnson saw her drive out of ACI onto Silver Dart Drive and proceed to the north exit on Airport Road. Her vehicle was facing eastbound when she stopped at a light at Airport Road. Both officers testified that they saw her positioned in the left turning lane, with her left flasher on, waiting for the light to turn green so that she could proceed northbound onto Airport Road. Cst. Hulan testified that he pulled up behind the van in his unmarked police car. He also signalled his intention to turn left.

[29] Ms. Gill turned her left signal off and, when the light turned green, she proceeded from the left turning lane to move directly across Airport Road to travel eastbound on Orlando Drive. Cst. Hulan continued to make his left turn onto Airport Road.

[30] Sgt. Johnson was able to follow the van across Airport Road and onto Orlando Drive. He saw the van turn southbound onto Viscount Road, the first available right after crossing Airport Road. Sgt. Johnson continued driving eastbound. Ms. Gill was now in what was described as an industrial area.

[31] Both Sgt. Johnson and Cst. Hulan soon saw Ms. Gill driving northbound on Airport Road. This meant that she must have driven a rectangular route in the industrial area on the east side of Airport Road, travelling east, then south and then west back to Airport Road. She then turned onto Airport Road and travelled northbound. This was consistent with her earlier intention to turn north onto Airport Road, an intention that seems to have been abandoned after Cst. Hulan pulled up behind her.

[32] After the officers started following the van northbound on Airport Road, both officers saw Ms. Gill make an eastbound turn onto another large roadway, Derry Road. It has three eastbound and three westbound lanes. Cst. Hulan testified that Ms. Gill was positioned in the curb, or far right lane as she was travelling eastbound on Derry Road. Ms. Gill came to a stop at the first stoplight which is a short distance from Airport Road. When the light turned green, she travelled across all three eastbound and all three westbound lanes to make a left hand turn onto Hull Street, a very short street that travels back to Airport Road northbound.

[33] Sgt. Johnson followed the van northbound on Airport Road for another short distance when he saw it turn east onto Morning Star Drive, leading into a residential neighbourhood. Sgt. Johnson then watched as the van turned northbound onto Netherwood Road. The van then drove a loop in the residential neighbourhood, eventually turning onto Thamesgate Drive, a short road leading back to Airport Road.

[34] Cst. Hulan testified that he saw the van come to a stop on Thamesgate Drive at Airport Road. At first he testified that the van waited for five to ten seconds at a stop sign, later revising this to ten to fifteen seconds. He testified that Ms. Gill waited until the northbound traffic on Airport Road was close enough that only the van could safely make a turn northbound onto Airport Road. In Cst. Hulan’s view, if the van had turned when it originally came to the stop at Airport Road, there would have been enough time for two to three vehicles to make the turn. He testified that because the van waited until the “last second” to make the turn, he could not follow it onto Airport Road.

[35] As the surveillance team temporarily lost sight of the van, Sgt. Johnson called the takedown. Between one and 1.5 km north of Thamesgate Drive, Cst. Hulan used his radio to tell the other officers that he had a visual on the van. He was four to five car lengths away from the van when he was able to confirm its licence. He was closer to the vehicle when he activated his “wig wags”, a term used for flashing front strobe lights on an undercover police vehicle. He also used his “fire ball”, meaning a red flashing ball placed on the front dash. He also activated his siren.

[36] While other vehicles travelling on Airport Road responded to the emergency equipment by pulling over, Ms. Gill kept driving. She continued at the same speed, around 65 to 70 km/hr.

[37] With Cst. Hulan’s siren going and two types of emergency lights activated, Ms. Gill continued driving for between 1.1 and 1.5 km north on Airport Road. When Sgt. Johnson caught up, he pulled into the middle northbound lane and positioned his vehicle to the left of Ms. Gill’s driver’s side. He honked his horn several times in an effort to get her attention, but she continued to look straight ahead and drive northbound. Sgt. Johnson saw other vehicles yielding.

[38] Ms. Gill then attempted to turn right onto Intermodal Drive. Sgt. Johnson testified that at this point he was able to pull in front of her and position his vehicle so that she had to come to a stop. According to Sgt. Johnson, this occurred at 10:45 p.m., eighteen minutes after the van had left ACI. Sgt. Johnson agreed that Ms. Gill did not have to slam on her brakes because she was travelling quite slowly as she made the turn onto Intermodal.

[39] Both officers got out of their undercover vehicles. They were dressed in plain clothes. Sgt. Johnson had his service revolver out and yelled at Ms. Gill that it was the police and to get out of the vehicle. Cst. Hulan yelled “stop, you are under arrest” and to get out of the vehicle. Ms. Gill’s was told to unlock her door. Cst. Hulan believes that he was banging at her window for about five to ten seconds. Sgt. Johnson thought she opened the door within a couple of seconds. Cst. Hulan could see that she was holding a cellular phone and that the backlight was lit. He does not know if Ms. Gill was on the phone with someone, but it is agreed that she was not making a 9-1-1 call.

[40] Sgt. Johnson is a highly experienced officer when it comes to controlled deliveries. He agreed during cross-examination that there are numerous driving techniques used to throw off surveillance. At no time during the surveillance observations was Ms. Gill seen speeding. Nor did she make any U-turns, speed up and then slow down. On its own, driving at the speed limit would not necessarily cause him to think that the driver was surveillance conscience.

[41] On a few occasions, the officers expressed the opinion that the driving was consistent with counter-surveillance. Crown counsel argued that the court could take into account the officers’ experience and knowledge in forming the opinion that the driving constituted counter-surveillance. While I take into account the absence of evidence about common techniques used to throw off surveillance, I do not take into account the limited opinions offered as to whether Ms. Gill’s driving was consistent with counter-surveillance.

[42] These opinions can be taken into account. This is not a Charter voir dire where officers’ opinions about the meaning of driving are relevant for purposes of informing why certain investigative steps were taken or whether grounds justified the actions taken. Nor are the opinions elicited to support the grounds for a judicial authorization. Rather, the Crown suggests that the evidence constitutes an opinion that, in and of its own right, has circumstantial value in the inference drawing process. Respectfully, I disagree.

[43] The opinion evidence rule is one of presumptive exclusion: R. v. Abbey, 2009 ONCA 624, at para. 71. As Doherty J.A. held in Abbey, “[i]t is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts.” Leaving aside the question as to whether it could ever be done, the Crown does not seek to qualify the officers in the area of surveillance expertise. Rather, it is argued that the opinions about whether Ms. Gill was engaged in “counter-surveillance” are admissible as lay opinion evidence. The Crown relies upon R. v. Graat (1983), 1982 CanLII 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.) at p. 370 in support of this proposition.

[44] I do not intend to address this issue in any detail. Suffice to say that the officers’ observations were easily recounted without reference to the inferences they may have drawn from the driving observed. The inference drawing is part of the court’s fact-finding function. To have permitted the officers to give their opinions as to whether the driving constituted counter-surveillance, would be to usurp the fact finding function of the court. To the extent that a few opinions seeped in, I do not rely upon them in deciding this case.

[45] With that said, I find that Ms. Gill’s driving pattern is highly probative on the issue of knowledge. While any one or two of her driving maneuvers could be explained by possibilities other than knowledge that she was in possession of a controlled substance, the full constellation of driving maneuvers paints a very different picture.

[46] I have considered many possibilities, including the ones I have been specifically encouraged to contemplate. For instance, in accordance with the approach to circumstantial evidence, I have considered whether there exists a reasonable possibility that Ms. Gill was simply lost when she left ACI, whether she may have been driving while distracted, whether she may have been looking for a delivery location, or some other location. Bearing in mind her entire pattern of driving conduct, though, viewed logically and in light of human experience, I find that there is no reasonable inference other than that Ms. Gill knew she had a controlled substance in her van and was driving in a manner to avoid detection or, at a minimum, to ensure she was not being followed.

[47] The constellation of facts to which I refer include:

a. The initial decision to go through the light at Airport Road, instead of making the left turn she had initially intended to make, an intention that was signaled with her left flicker and moving into the left turning lane. Her decision to travel across Airport Road was only made after Cst. Hulan pulled behind her in his unmarked police vehicle.

b. The second decision to cross over Airport Road, only to make a loop in an industrial area at 10:30 at night, to come back out to Airport Road and only then to go northbound, consistent with her initial intention.

c. The third decision to turn right onto Derry Road, get in the furthest right lane, and then cut across six lanes to make a left hand turn at the first street, only to continue her journey northbound on Airport Road.

d. The fourth decision to turn right into a residential area and drive a loop, only to come back to Airport Road, so that she could again continue her journey northbound.

e. The fifth decision to sit and not make the right hand turn back onto Airport Road until oncoming traffic was close enough to preclude the unmarked police vehicle behind her from also making a safe turn onto Airport Road.

f. The sixth decision not to stop her vehicle for at least just over a kilometer, notwithstanding the fact that other vehicles were yielding to Cst. Hulan’s flashing lights and siren.

g. The seventh decision not to stop her vehicle notwithstanding the fact that Sgt. Johnson was honking his horn beside her, trying to get her attention.

h. The fact that she only came to a stop when Sgt. Johnson pulled in front of her after she attempted to turn off of Airport Road again.

[48] One can imagine how any one or perhaps even a few of these driving maneuvers could arise from reasonable possibilities like being lost, driving while distracted, or in search of a location. While there are undoubtedly plausible theories, inconsistent with guilt, that may explain one or even a few of these driving events, the entire course of driving conduct is not reasonably capable of supporting an inference other than that Ms. Gill knew she had a controlled substance in her vehicle.

[49] As well, she was driving at after 10:30 p.m., rendering any theory that she may have been trying to make a delivery that late at night less likely. She clearly wanted to go north on Airport Road, as evidenced by the fact that she kept coming back to it. Airport Road is not a complicated, windy road. It is a large road and runs straight as an arrow in the location where she was seen driving. Yet, on three distinct occasions, Ms. Gill took a loop to the east. None of the areas she cut east into bore any resemblance to each other. The first loop was in an industrial area. The second loop on a six-lane road. The third loop in a residential area. She attempted to go east again and was stopped.

[50] I also consider the fact that the street names she drove east on bore no resemblance to each other: Orlando, Derry, Morning Star and Intermodal. While in search of a location, one can certainly imagine getting confused by similar street names, there is an absence of any similarity in the names here.

[51] All of these facts belie the possibility or theory that she may just have been lost or distracted. In the course of eighteen minutes, she engaged in all of this bizarre driving. In addition, she pulled out of the residential neighbourhood in a way that ensured that the undercover police vehicle behind her could not follow. She also failed to stop for the emergency and honking vehicles in circumstances where other drivers clearly saw what was taking place and properly pulled over. Yet Ms. Gill continued for at least a kilometer. I find that over this distance, even a distracted driver would come to hear the siren and honking and see the two forms of emergency lights.

[52] When considered as a whole, it is not reasonably possible that Ms. Gill’s driving arose out of being lost, distracted or unable to find a location. Notwithstanding Mr. Heath’s capable submissions, I reject the suggestion that the driving leaves open reasonable inferences other than that Ms. Gill knew she was in possession of a controlled substance. In light of human experience and common sense, I find that there is no reasonable possibility that Ms. Gill was simply distracted on her circuitous path north on Airport Road, lost or looking for a place to drop the boxes at after 10:30 p.m. I have no doubt that her driving was a direct product of her concern that someone, not the least of which may have been law enforcement, may have been following her. A concern rooted in the fact that she knew she had a controlled substance in her van.

(iii) The Value of the Heroin

[53] My conclusion regarding Ms. Gill’s knowledge is supported by the sheer value of the heroin that, had it not been removed by the RCMP, would have been in the box. At the top end, the value of the heroin was just shy of a million dollars. The value of a controlled substance can be relevant to the issue of knowledge: R. v. Blondin (1971), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121, aff’d 1971 CanLII 1411 (SCC), [1971] S.C.J. No. 42; Ukwuaba, at para. 108(6).

[54] Those who make money from heroin trafficking must be risk averse, taking necessary steps to ensure that the load will not be detected, stolen or seized. As Hill J. noted in Ukwuaba, at para. 133(3), they “would be unlikely to trust such internationally-shipped cargo to handlers without knowledge of the illicit nature of the package’s contents”. I agree. In this case, if sold at the gram level, this was a near million-dollar load.

[55] While I do not find that the value of a controlled substance is dispositive of knowledge, it is a factor for consideration and one that I take into account. Whoever coordinated to have the heroin brought into Canada was intent on getting it, as evidenced by its total value and by the number of calls received by men looking for the package in the 12 days after it arrived at Pearson. It is simple common sense that whoever owned the heroin would not want to risk this valuable load being transported by someone who they did not trust, someone who knew the importance of what they were transporting. Combined with her bizarre driving pattern, the value of the heroin also points toward Ms. Gill’s knowledge of what she had just picked up.

(iv) The Letters From the School

[56] While it is unnecessary to do so, for completeness, I will address the letters found in the van at the time of Ms. Gill’s arrest. She had three documents from a school, each referencing a debt owed. The document dated December 2, 2010, references a debt of $4,682. She and “Mr. Gill” were asked for immediate payment no later than December 6, 2010, barring which the child’s school placement would be reviewed.

[57] Mr. Johnston argues that this is some evidence that Ms. Gill was in financial trouble and had a financial motive to commit the crime. Relying upon R. v. Mensah (2003), 2003 CanLII 57419 (ON CA), 170 O.A.C. 244, Mr. Heath argues that the letters cannot be used to support a financial motive. Respectfully, I do not read Mensah as precluding all consideration of motive arising from evidence that an accused may be experiencing financial pressures.

[58] Mensah is a case involving an accused who had a low level of government assisted income. As a general proposition, Simmons J.A. concluded that this type of low-level income is “insufficient, in and of itself, to support an inference that the accused has a motive to commit a profit-motivated crime”: Mensah, at para. 8. This principle of law is rooted in a rule of fairness, ensuring that the poor are not more vulnerable to this type of circumstantial evidence. J.H. Wigmore, Evidence in Trials at Common Law, vol. II, Revised by J.H. Chadbourne (Toronto: Little, Brown and Company, 1979), at para. 392 is adopted as support for this proposition in Mensah, at footnote 2:

The lack of money by A might be relevant enough to show the probability or A’s desire to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence…”.

[59] While there is a rule against admitting evidence of general impecuniosity as probative of a person’s inclination to commit a crime for financial gain, it does not mean that a person’s financial situation is always inadmissible. Indeed, the accused’s financial picture was ultimately found to be admissible in Mensah. He testified that while he had been receiving employment insurance benefits, prior to travelling he had received a job offer that he delayed accepting so that he could attend to some difficulties in Ghana concerning his daughter’s immigration to Canada. In these circumstances, Simmons J.A. held at para. 10: “… it was open to the jury to find that the appellant was experiencing some financial pressure and that his decision to expend significant funds in order to travel to Ghana was not for the reason that he stated but instead, was to obtain money through crime. Accordingly, the impugned evidence was properly admissible to establish motive …”.

[60] In R. v. Phillips, 2008 ONCA 726 at para. 51, MacPherson J.A. noted that a recent change in the accused’s employment situation – not general impecuniosity – was relevant to motive. He held:

This change, not the appellant's general impecuniosity, was suggested as a possible motive for the appellant's willingness to be a drug courier. In this respect, this appeal is in fact similar to Mensah where this court upheld the trial judge's decision to admit evidence of the accused's deferral of an employment opportunity to suggest motive to be a drug courier.

[61] Justice Hill put it this way in Ukwuaba, at para. 99: “Financial pressures, not economic status, may amount to motive to become involved in a profit-motivated crime”.

[62] The letters from Tall Pines School, addressed to Mr. and Mrs. Gill, dated October 13 and December 2, 2010, demonstrate that Ms. Gill was under current financial pressure. As the child was already in the school, as evidenced by the suggestion that his placement would be reviewed if the bill was not paid, at some point Ms. Gill clearly had the funds to send the child to the school. Whatever caused the change in economic status, one where the tuition could be afforded, to one where the tuition was clearly in arrears, the letters suggest that Ms. Gill was under some real and present financial pressure. With that said, while I find it is admissible on the issue of knowledge, I find that it is entirely unnecessary to take the evidence into account in resolving this essential element of possession for the purpose of trafficking. I do not do so.

(v) Conclusion on the Attempt to Possess for the Purpose of Trafficking

[63] Ms. Gill was in possession of the controlled substance heroin. Viewed logically and in light of human experience, the circumstantial evidence arising from the pattern of driving and value of the shipment is not capable of supporting an inference other than that Ms. Gill knew she had picked up a controlled substance. As agreed by counsel, the sheer value of the heroin, just shy of the one million mark if sold at the gram level, leads to the inescapable conclusion that it was possessed for the purpose of trafficking. At a minimum, Ms. Gill was knowingly transporting the controlled substance to transfer it to others.

[64] As I am satisfied beyond a reasonable doubt that Ms. Gill is guilty of possession for the purpose of trafficking, based on Chan, I am equally satisfied beyond a reasonable doubt that she committed the included offence of attempting to possess heroin for the purpose of trafficking.

[65] Ms. Gill will be found guilty on count 3, the attempt to possess heroin for the purpose of trafficking count.

(V) Count 1: Importing Heroin

[66] To import a controlled substance into Canada means to bring or have it brought into Canada with knowledge that it is a controlled substance.

[67] A person can be a principal or a party to the offence. While she can be an aider and abettor to the crime, assisting the principal and intending to do so, at a minimum, she must be aware of the type of crime committed and know “the circumstances necessary to constitute the offence” she is accused of aiding: Ukwuaba, at para. 106. While the aider need not know precisely how the perpetrator intends to commit the offence, the Crown must prove that the aider knew that the perpetrator intended to commit the offence and that the aider intended to assist the principal in committing the offence: R. v. Briscoe, 2010 SCC 13, at paras. 16-17.

[68] The actus reus of the importing offence is voluntarily bringing or causing the controlled substance to enter Canada. It is not a continuing offence. The crime is complete when the drugs enter the country. In R. v. Bell, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, at pp. 488-89, the majority held as follows:

It is apparent, in my view, that importing a narcotic cannot be a continuing offence. I do not find it necessary to make extensive reference to dictionaries in order to define the word "import". In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. With the utmost respect for judges who have taken a different view, I am of the opinion that the characterization of importing a narcotic as a continuing offence is misconceived. The offence is complete when the goods enter the country. Thereafter the possessor or owner may be guilty of other offences, such as possession, possession for the purpose of trafficking, or even trafficking itself, but the offence of importing has been completed and the importer in keeping or disposing of the drug has embarked on a new criminal venture.

See also: R. v. Vu, 2012 SCC 40, at para. 53.

[69] The parties are divided on the law relating to the importing offence. The Crown maintains that the goods did not enter the country until Ms. Gill retrieved the box with heroin from ACI and that Ms. Gill knew the drugs originated from outside of the country. While the defence maintain that the box entered the country at an earlier point, even if the court rejects this submission, the defence emphasize the fact that there is nothing to support the suggestion that Ms. Gill knew the boxes originated in Pakistan.

[70] Despite the fact that importing is not an ongoing offence, Bell does not stand for the proposition that the actus reus of importing is complete once the drugs cross the international boundary. At a minimum, it includes retrieval of one’s bag when they land at the airport and before they clear customs. As Rosenberg J.A. held in R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at para. 54, in dealing with the defence of duress, “the importing offence was at least not complete until” the point where the appellants had entered the airport and physically taken possession of their bags.

[71] There is significant logic to the fact that the actus reus of the importation is not complete while a package sits in the cargo forwarding stream, waiting to be released to its taker. While packages being shipped to Canada will sometimes take more time to be retrieved than bags spilling out onto the carousel to be retrieved by travellers, for purposes of the actus reus of importing, I can see no principled basis upon which to distinguish these two things. Until the packages clear the customs stream, they are much like the bags waiting to come onto the carousel.

[72] Support for this proposition can be found in R. v. Martin (1973), 1973 CanLII 1528 (ON SC), 11 C.C.C. (2d) 224 (Ont. H.C.), at para. 23, where the court found that the importation of a stereo speaker containing a drug included when it “came to rest in the customs warehouse”. Notably, Martin was cited by the majority in Bell as offering a “normal or ordinary” construction on the word “import”. It was also adopted in R. v. Miller (1984), 1984 CanLII 637 (BC CA), 12 C.C.C. (3d) 54 (B.C.C.A.), at para. 85 and cited with approval in Valentini.

[73] While I find that until the heroin was picked up from ACI the importing was not complete, the real question for resolution is whether Ms. Gill knowingly brought or aided in bringing a controlled substance into the country. There is a fundamental distinction between Ms. Gill’s knowledge that she came into possession of a controlled substance, which I have found beyond a reasonable doubt, and her knowledge that the controlled substance originated outside of Canada.

[74] In R. v. Atuh, 2013 ABCA 350, at para. 7, the court held: “To prove that a recipient is guilty of importing, something more than receipt and knowledge of receiving a controlled drug is required to prove that the recipient was either a principal in, or party to, importing.” There must be evidence upon which the court can be satisfied beyond a reasonable doubt that the accused either imported or assisted in importing a controlled substance she knew came from outside of Canada. I have a reasonable doubt on this point.

[75] Ms. Gill attended at ACI with a letter from “Saeed ali”. There is nothing on the face of the letter to suggest the origin of the shipment. There is no evidence that Ms. Gill was in possession of a waybill. While Crown counsel places emphasis on the markings contained on the box with the heroin, it is nothing more than a long number which is meaningless on its own. Moreover, Crown counsel fairly acknowledges that there is no evidence to support the suggestion that Ms. Gill even watched as the boxes were loaded into her van.

[76] While a number of different people called in to check on the boxes after they arrived from Pakistan, they were all male callers. The one person who came in person to check on the delivery was a male. The evidence only supports Ms. Gill’s involvement in the crime almost two weeks after the load arrived in Canada when she arrived at ACI.

[77] This leaves for consideration what inferences can be drawn from the fact that she attended at a cargo shipping location beside Pearson International Airport to pick up the load. The sole evidence regarding the nature of ACI’s business is found in the agreed statement of fact: “‘ACI’ This is a Cargo forwarding company that disseminates cargo to the consignee or persons authorized by the consignee to take delivery of the Customs Cleared Cargo”. There is no evidence to support the suggestion that ACI only deals with customs cleared cargo. Nor is there any evidence to suggest that, even if ACI only deals with customs cleared cargo, that someone picking up a package at that location would know this fact. There was no evidence to suggest that there were signs suggesting this fact or that Ms. Gill may have been informed of this fact.

[78] While I have no doubt that Ms. Gill knew she was picking up and transporting a controlled substance, and that it arrived by air, I have a reasonable doubt that she knew the controlled substance came from outside of Canada. There seems to have been at least one or more males inquiring about the load after it arrived. They must have had the waybill number in order to make those inquiries, a number that was likely taken from the waybill and showed the fact that the items originated in Pakistan.

[79] While one or more of these men may have turned Ms. Gill into a courier of the drugs, undoubtedly disclosing to her the nature of what she was picking up, I am not satisfied beyond a reasonable doubt that they would have disclosed or had to disclose where the boxes came from. Nor am I satisfied beyond a reasonable doubt that ACI only operates with customs cleared cargo. If it does, I am not satisfied beyond a reasonable doubt that this would have come to Ms. Gill’s attention.

[80] Ms. Gill is found not guilty on count 1, the importing count.

(V) Count 2: Resist Peace Officer Engaged in His Duties

[81] This leaves count 2 on the indictment to be considered. Count 2 is particularized as resisting Cst. Hulan in the execution of his duty of arrest, by pulling away from him as he attempted to arrest Ms. Gill pursuant to s. 129(a) of the Criminal Code.

[82] After she had been stopped by Sgt. Johnson pulling in front of her vehicle, the officers approached Ms. Gill’s driver’s side door. They were dressed in plain clothes. Sgt. Johnson drew his firearm and yelled that it was the “police” and to “get out of the vehicle”. Sgt. Johnson testified that Cst. Hulan struck the driver’s side window a few times. Shortly after, Ms. Gill opened her door and was removed by Cst. Hulan.

[83] When Cst. Hulan attempted to arrest her, she did not comply. Sgt. Johnson testified that when Cst. Hulan would tell her she was under arrest for drug importation, she would respond by asking, “for what”? Sgt. Johnson testified that when Cst. Hulan attempted to handcuff her, she did not comply with his directions and eventually she had to be placed on the ground in a controlled manoeuvre performed by both officers.

[84] While Ms. Gill did not attempt to run away, Sgt. Johnson testified that she did not comply with Cst. Hulan’s directions to put her hands behind her back. While he did not make a note of it, Cst. Johnson recalls that she was asked at least twice to provide her hands so that she could be handcuffed. The requests were seconds apart. When she did not comply, she was placed on the ground.

[85] Cst. Hulan testified that it took about five seconds until Ms. Gill opened her door in response to the police command. After she had been removed from the vehicle, he conducted a safety check on the interior and then went back to Ms. Gill. He was able to get the left handcuff on as she was facing the van, but unable to cuff her right hand. She was told “numerous times” that she was under arrest for importation of drugs, but she would not give the officer her right hand. She was told that if she did not comply, she would be placed on the ground. While she did not try to run away, Cst. Hunal testified that she was actively resisting. She was not attempting to assault him. After about 20 to 25 seconds, during which she was told to stop resisting, she was placed on the ground.

[86] Once back at the police facility, Sgt. Johnson noticed that Ms. Gill had a swollen wrist. She was taken to the hospital and, while the x-rays were clear, she received a splint.

[87] Counsel spent little time making submissions on this count. It is Ms. Gill’s position that, given the brevity of the conduct it question, there was no meaningful resistance. Even if there was some form of resistance, the Crown has failed to prove beyond a reasonable doubt that Ms. Gill intended to resist.

[88] This offence requires that the accused resist a peace or public officer involved in the execution of his or her duty. The mens rea requires intent to resist in whatever way the resistance is offered, including knowledge that the person resisted is a peace officer engaged in his or her duty: R. v. Noel (1995), 1995 CanLII 1105 (BC CA), 101 C.C.C. (3d) 183 (B.C.C.A.), at paras. 20-21 (addressing the wilful obstruction component of s. 129(a).

[89] In this case, there is no dispute that the officers were peace officers and that the arrest was part of their duties. I find as a fact that Ms. Gill knew full well that she was being arrested for drug importation and that the officers were attempting to handcuff her in the context of this arrest. I accept that Cst. Hunal repeatedly told her the reason for her arrest.

[90] In R. v. Whitfield, 1969 CanLII 4 (SCC), [1970] S.C.R. 46, at p. 48, Judson J. provided the following common law definition of “arrest”:

Arrest consists of the actual seizure or touching of the person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer.

[91] This definition of arrest was adopted by the court in R. v. Asante-Mensah, 2013 SCC 38, at para. 42.

[92] There exists a clear continuing state of arrest until such time as the purpose of the arrest has been achieved: Asante-Mensah, at para. 33, 42, 44. The purpose of the arrest in this case was to take Ms. Gill into custody. She needed to be placed in handcuffs so that this purpose could be achieved.

[93] While she clearly offered some resistance in this regard, failing to produce her right hand when instructed to do so, I have a reasonable doubt about her mens rea. This is a specific intent offence, I have a reasonable doubt about whether she intended to resist the arrest in the few seconds that passed while Cst. Hunal was giving his instructions that she produce her right hand to be cuffed. On Sgt. Johnson’s evidence, no more than a few seconds passed. Her lack of cooperation only lasted for very few seconds, at which point the officers used the force necessary to make the arrest. In the circumstances, they were entitled to do so and there has been no suggestion to the contrary. At the most, on Cst. Hunal’s evidence, she resisted for as much as 20 to 25 seconds, after which she was taken to the ground.

[94] She did not try to run. She did not try to escape. She did not try to assault the officers. Whether feigning a lack of comprehension as to what she had been arrested for or not, given the speed with which the officers acted to apply reasonable force to ensure a safe and proper arrest, while she clearly committed the act of resistance, I have a reasonable doubt about whether Ms. Gill actually intended to resist the officers in making their arrest.

[95] Ms. Gill is found not guilty on count 2.

(VI) Conclusion

[96] Ms. Gill is found guilty on count 3 and not guilty on counts 1 and 2.

Fairburn J.

Released: June 9, 2017