COURT FILE NO.: CRIMJ(F)1602/16 DATE: 20170810 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen – and – Charita Mary Ah Johnson

Counsel: O. Melnik, for the Crown E. Wilschick, for the Accused

HEARD: June 6 – 7, 2017

REASONS FOR JUDGMENT

M. J. DONOHUE, j.

INTRODUCTION

[1] Charita Johnson returned home to Canada on a flight from Jamaica on August 2, 2015. At customs, one of her checked bags was found to contain just under three kilograms of cocaine. The cocaine was carefully packed in a large flat package and hidden within the back panel of her red suitcase. She was charged with importing cocaine into Canada.

[2] Her travel companion was her aunt, Natalia Smith.

[3] An “MK”-brand suitcase was located from that same flight with luggage tags in Natalia’s name. Approximately a kilogram of cocaine was found secreted in a similar fashion within the back panels of the MK suitcase.

[4] Ms. Johnson testified at trial that she had no knowledge that her suitcase contained cocaine. She further testified that Natalia used her as a drug mule to smuggle in the drugs.

[5] The primary issue at trial was whether the Crown had proven the requisite knowledge on the part of Ms. Johnson that she was importing the controlled substance.

[6] A secondary issue was whether the Crown had established the continuity of the MK suitcase identified as belonging to Natalia. This issue became significant in Ms. Johnson’s case because of the similarity of their packing in all the suitcases and the manner in which the cocaine was hidden.

[7] The charges against the two accused were severed: this trial involved Ms. Johnson.

FACTUAL BACKGROUND

Testimony of Charita Johnson

Background

[8] Ms. Johnson was twenty-four years of age at the time of the offence. She had not worked in the last six years. Her income was from social assistance and child tax benefits. She lived with her four-year-old son. She was residing for the previous four months in a shelter. She was under a lot of stress.

[9] She was planning to go to school in September to complete Grade 12.

[10] Ms. Johnson had known Natalia all her life and said she “grew up with her.” Natalia was Ms. Johnson’s father’s sister and was “more like a mom” than anyone else to her. Natalia was eleven years older than her. They were always close and had a good relationship.

[11] The trip which she and Natalia took was a week’s stay at the Riu all inclusive resort, from July 26 to August 2, 2015 in Montego Bay, Jamaica.

[12] Ms. Johnson first heard about the trip at a barbeque with her father when she saw Natalia. This was the first week of June 2015, less than two months before the departure.

[13] Natalia was telling them that she and her boyfriend, Keith, were going to this resort to attend an MTI concert that was like “Caribana.”

[14] Ms. Johnson had never been to Jamaica and asked what it would be like. Natalia told her that it would be a big festival and that she and her boyfriend go all the time.

[15] Ms. Johnson knew that Natalia worked at Tim Hortons and asked her how they could afford such a trip. She testified that Natalia told her that she and Keith had saved all year for the trip. Ms. Johnson did not know the actual cost of the trip.

[16] A week after the barbeque, Natalia told her that Keith could not go on the trip as he had an emergency at work. He worked in construction.

[17] Natalia had asked Ms. Johnson’s sister to take Keith’s place, but she was unable to get a sitter for her children. Natalia offered the trip to Ms. Johnson, instead.

Arrangements for the Trip

[18] Ms. Johnson testified that she checked whether she would have to pay Natalia back, but was assured she would not need to.

[19] Ms. Johnson worried she could not afford clothes or a bag. She had brought her clothes to the shelter in garbage bags. Natalia reassured her that she would take care of it as Ms. Johnson could use the red luggage which Keith had bought. Natalia told her the red bag was “hers to keep.”

Passport

[20] Natalia said she would pay for Ms. Johnson’s passport and for her clothes. The passport was issued July 16, 2015.

[21] Ms. Johnson testified that originally the trip was to occur the week before (July 19 – 26) but they could not go because the MTI Caribana Festival was sold out. Therefore, they rescheduled the trip to the following week (July 26 – August 2).

Packing for the Trip

[22] On the day of departure, Natalia phoned Ms. Johnson at the shelter and said she had the suitcase for her. Ms. Johnson took it inside to pack.

[23] The bag was red with extra compartments and was wheeled with a handle. It was empty. She packed her clothes, lotion and “women’s things.” She also had another carry-on with some more clothes, shampoo and toothbrush. This was her “Lulu” bag. The Lulu carry-on bag held her EPI pen. She said she did not have a purse with her. Ms. Johnson’s father drove the two of them to the airport.

Events at the Resort

[24] At the resort the two shared a room. Ms. Johnson unpacked her red bag and put her things away in the dresser. The bag lay empty at the end of her bed. Natalia had travelled to Jamaica with a similar red bag as she had given to Charita.

[25] The two were together most of the time. They did some activities separately. The food and drink was all included at the resort but Natalia paid for them to do extra excursions such as playing with dolphins, a boat trip, “Rip” lining, and an adult playground.

[26] During the week they drank, danced and spent time at the beach and the pool.

[27] Three days before they were to leave, they had an argument. Natalia wanted the two of them to go visit Keith’s family. Ms. Johnson did not want to leave the resort. She felt it was dangerous to go off the resort and she did not know Keith’s relatives. She saw no reason to go.

[28] An hour after the argument, Ms. Johnson was by the beach and saw Natalia walking through the hotel foyer with their two red rolling suitcases.

[29] Ms. Johnson said she got up to go see where she was going and saw Natalia was going to leave the resort. Ms. Johnson went to the front of the hotel but by the time she reached it Natalia was gone. Ms. Johnson assumed she had left the resort in a car to visit Keith’s family.

[30] That evening, Natalia returned with Ms. Johnson’s red bag. Instead of Natalia’s own red bag, she had with her an MK suitcase, to which Natalia explained that she had “Downgraded.”

[31] Natalia laid Ms. Johnson’s red bag on the floor in front of Ms. Johnson’s bed.

[32] Ms. Johnson asked Natalia why she took the suitcases. Natalia said it was to carry the food she was bringing back for Keith. Natalia opened the bags and they held chips and snacks that were not available in Canada. The snacks were some Jamaican bread, some cheese puffs, and some chips.

[33] The evening before their departure, around 9 or 10 p.m., Ms. Johnson said she packed the red bag.

[34] Ms. Johnson said Natalia took out the food items so Ms. Johnson could pack her clothes in there.

[35] Ms. Johnson stated that after she was finished putting her clothes in the red bag, Natalia put in her things.

[36] Ms. Johnson said she never lifted her red bag as hotel staff picked it up and took it to the airport shuttle.

Return Trip to Toronto

[37] The shuttle bus driver unloaded her red bag at the airport and she rolled it to the check-in counter. She and Natalia were checked in together. One of the bags was over the weight limit and Natalia paid a fee. Ms. Johnson thought it was the MK suitcase that was overweight. Evidence at the trial confirmed Natalia paid $60 US dollars for overweight luggage.

[38] At the Airport Duty Free, each of them chose two bottles of alcohol to bring back, worth $30.00. Natalia paid for Ms. Johnson’s liquor as well as her own.

[39] On the plane Ms. Johnson completed the E311 Declaration card. She said she did not tick off that she was bringing in food as she did not think the snacks they had with them were “fruit, vegetables, seeds or nuts.” Natalia had told her to tick off “no.”

[40] Ms. Johnson answered “Yes” to the question, “Do you or any person listed above exceed the exemption per person?” She declared $30.57 of goods being brought back. She asked Natalia what this question meant. Natalia told her it was to declare the Duty Free alcohol each of them had and they should answer yes. The evidence tendered at trial indicated that Natalia also answered “Yes” to this question on her E311 card, and declared $27.00 US.

[41] Ms. Johnson said she really did not know what the question of “exceeding the exemption” meant.

Canadian Customs

[42] After landing in Toronto, each of them submitted their E311 Declaration card to the kiosk and got a receipt. At this point, Ms. Johnson testified that Natalia told her to go their separate ways. Ms. Johnson asked her why but Natalia left her. Natalia appeared “off edge” to her.

[43] At primary inspection, Ms. Johnson was asked who she was travelling with and Ms. Johnson pointed out her aunt, Natalia.

[44] Ms. Johnson then went downstairs to get the luggage. She saw Natalia on the other side. Natalia had picked up her carry-on bag but not her MK bag. Ms. Johnson got her red bag but then lost sight of Natalia.

[45] At secondary inspection, Ms. Johnson was directed to another line. She said she figured it was because of her Duty Free bottles. While waiting in line, Ms. Johnson was wearing her ear buds, listening to music. At inspection, she saw Natalia at a booth two desks down, speaking with a Border Services Officer (BSO).

[46] When Ms. Johnson was called up, she was asked by the officer where she was coming from, who paid for her trip and whether she was carrying narcotics. Ms. Johnson offered the Lulu bag for the officer to search. The officer instead turned to search the red bag first.

[47] Ms. Johnson saw the officer poke the back of the bag with a knife and powder came out. Ms. Johnson thought the powder was cocaine as she often watches a Border Security TV show.

[48] Ms. Johnson said she turned at that point to look at Natalia and mouthed the words “What the F.”

[49] Ms. Johnson was arrested and was read her rights. She said at that point she felt “really pissed off” and wanted to “get at her aunt.” She said she knew cocaine in her bag was “a big thing” and what would happen.

[50] She knew the consequences because her mother’s sister had been convicted of importing cocaine from Jamaica. She had been told that each “K” was a year in jail. Her mother’s sister got 5 years.

[51] Ms. Johnson said she tried to imagine what time she would get. She said she saw the powder which the officer poked out but had no idea how much was there or the weight.

[52] Under cross-examination, Ms. Johnson confirmed that all of the items, located and tagged as being the contents of the Lulu bag, were hers. When Crown counsel emphasized that all her things fit in the Lulu bag, Ms. Johnson said she was surprised to see all of her things in the Lulu bag when the officer opened her bag. She said that half of the clothes had been in the bigger, red suitcase.

[53] Ms. Johnson reviewed the exhibit which lay out her possessions and the contents of the red bag. She identified the red blanket as hers and said the beige blanket and gray blanket were Natalia’s. She identified the chips and snacks as Natalia’s. Ms. Johnson said the shirts, pants and rompers also belonged to Natalia, which Natalia packed in there. The sweater with the word “Ghetto” belonged to Ms. Johnson.

[54] On further judicial questioning, Ms. Johnson confirmed that the water and sprite bottles were not in the red suitcase. They were on the plane with her. The gray neck pillow belonged to Natalia. Ms. Johnson said she borrowed it and used it on the plane coming home.

Hindsight

[55] Ms. Johnson testified that she figured that Natalia arranged for the trip to use Ms. Johnson as a mule. She told the RCMP officer that she should have asked her aunt more questions.

[56] Ms. Johnson agreed that if she had gone through customs and later discovered the cocaine in the suitcase, she would have called the police. She agreed she would have told police how Natalia had taken the suitcase away for a time at the resort.

[57] Ms. Johnson testified that she had no knowledge that there was cocaine in her bag and that Natalia did not pay her to bring it in her bag.

[58] Ms. Johnson stated “that’s not me”, denying the suggestion she was an importer. She explained that she had a son and had plans for a house and school. She said she has always “stayed under the radar.” By this she meant she had not been involved in criminal activity.

[59] She was cross-examined on her statement to police that she had been involved in prostitution. She testified that she did not do anything illegal. However, she agreed that prostitution is risky for her safety and she could have been arrested, such that she acknowledged she had engaged in risky behaviour in the past. Ms. Johnson explained that she took the risk that one time in order to feed and clothe her son.

Evidence of BSO Woloszanskyj

[60] BSO Woloszanskyj was on duty in the secondary examination area. She dealt with Ms. Johnson. She confirmed Ms. Johnson was wearing earphones when she approached the counter. She saw that the passport had been issued ten days before travel.

[61] The officer asked her about the details of her trip. Ms. Johnson told her that the purpose of the trip was for a Caribana Festival called MTI, which was to start the following week. There were no flights available so she went a week earlier and did not end up attending the festival.

[62] The officer asked who bought her ticket. Ms. Johnson answered that her aunt bought the ticket a few days or up to a week before travel.

[63] The officer asked what Ms. Johnson’s employment was and was advised that she sold corsets part-time from a lady’s home for a company called Ultra Ego Clothing.

[64] She asked Ms. Johnson when she decided to leave on her trip, and Ms. Johnson stated about two weeks before leaving.

[65] She asked whether she was bringing narcotics into the country. Ms. Johnson said she had no reason to as she had a child at home.

[66] Before the officer examined the bags, she said Ms. Johnson answered ‘yes’ to the standard three ownership and possession questions:

• Are these your bags?
• Did you pack them yourself?
• Do you know what is inside them?

[67] When the officer began to do the exam of the red bag she said Ms. Johnson asked if she should open up the Lulu brand suitcase. The officer continued to examine the red bag.

[68] Once emptied of its contents, Officer Woloszanskyj said she felt the back with her hand and it was really rigid and stiff. She opened the zipper and could feel a bulge. She cut a hole with her knife and a white powder was disclosed.

[69] At this time, she arrested Ms. Johnson and read her all rights and cautions.

[70] Officer Woloszanskyj later weighed the emptied red suitcase and found it had contained 8.2 kilograms.

[71] The examination was suspended while Ms. Johnson spoke with duty counsel. On her return, the investigation continued. The officer stated she took all the contents from the red bag, put them in an orange plastic bag and marked the items as belonging to the red bag.

[72] The officer examined a black purse which contained an EPI pen. The officer asked Ms. Johnson what allergies they should be made aware of. Ms. Johnson replied “fish and apples.”

[73] She next examined a loose blanket, a head rest, a white grocery bag and a loose sweater. There was no contraband found in the purse.

[74] She then examined the Lulu brand bag: no contraband was found in it.

[75] The bags were then seized by the RCMP.

[76] The officer thought Ms. Johnson’s demeanour throughout was calm and cooperative.

[77] Officer Woloszanskyj confirmed under cross-examination that the red bag did not appear unusual until she felt the rigidity with her hand and the bulge, but the bulge was not observable on the outside of the bag.

Evidence of Border Services Officer Sakamoto

[78] BSO Sakamoto met with Natalia in secondary inspection at 3:55 p.m. He found her demeanour odd and as his suspicions were raised he began taking his notes at 3:56 p.m., almost immediately. His verbatim notes were that she asked “is this standard procedure?” In his experience, compliant travellers would not ask this. He felt that she was nervous and trying hard to hide it.

[79] Officer Sakamoto examined Natalia’s luggage. He did not locate any contraband, but arrested her as she was travelling with Ms. Johnson who was found to be in possession of cocaine.

[80] At 5:07 p.m., the officer who had taken Natalia to the holding cells brought him the small shoulder bag which Natalia had been wearing while he was questioning her. Inside were four luggage tag stubs from their flight, stuck to her boarding pass. He noted that they had only examined three pieces of checked luggage belonging to the two women.

[81] In his search, Superintendent Dickson gave him a Sunwing Flight Report of a missing bag.

[82] Officer Sakamoto promptly reviewed archive camera video footage of the baggage carousel for this flight and observed a staff member take one bag that was left and put it on the floor beside the carousel. The staff member tagged it and left it. A different flight came in with a group of team members dressed alike and gathered bags near this single bag. A porter arrived and took all the bags including this single bag and left.

[83] Officer Sakamoto noted that Para Pan Am teams were arriving for the games in Toronto. He ran to try to catch their bus but did not see it. He spoke with a volunteer about the blind Nicaraguan team mistakenly taking this bag to Athletes’ Village in Downtown Toronto.

[84] Officer Sakamoto and Officer Dagg left the airport in a CBSA vehicle to go directly to the Athletes’ Village Welcome Centre. Officer Sakamoto phoned Toronto Police for assistance to locate and take custody of the bag.

[85] Part of the agreed facts were that Toronto Police Officer Gidari was working at the Athletes’ Village during the Parapan Am Games. At 6:30 p.m. he received a call from CBSA to locate this bag. He was given the baggage tag number XS227098 on Flight YYZ-WG759 and the name Natalia Smith.

[86] At 6:50 p.m., Officer Gidari located a suitcase with this tag and name information inside the reception area tent at the Athletes’ Village, among the luggage belonging to the Nicaraguan team. The Athletes had not yet collected their luggage. At that time, the Nicaraguan athletes were going through security. All the luggage of the Nicaraguan team was grouped together after it was unloaded from the bus.

[87] The officer determined that no one on the team had the name Natalia Smith.

[88] Officer Sakamoto testified that he arrived at the Athletes’ Village Welcome Centre at 8:02 p.m. and seized the bag from Officer Gidari at 8:12 p.m. The agreed statement of facts, on the other hand, indicated that Officer Gidari seized the bag and kept it under his control until he turned it over to BSO Sakamoto at 9:12 p.m.

[89] The bag had the luggage tag which matched the luggage stub in Natalia’s purse. It stated her name, flight number and tag number XS227098.

[90] At 8:25 p.m., Officer Sakamoto placed the bag in the trunk of the CBSA vehicle and returned to the airport with Officer Dagg. At 8:55 p.m., in secondary inspection, he searched the bag.

[91] When Officer Sakamoto emptied and examined the MK bag, he felt it was heavier than an empty bag should be, in his experience. He x-rayed it and saw an inconsistency in the back of the bag. He also noted a chemical smell. He could not say if it was the smell of cocaine or the adhesive which sealed the false backing inside the suitcase.

[92] He cut into the bag and it tested positive for cocaine.

[93] Part of the agreed facts was that Natalia made a statement to the RCMP officer on August 2, 2015, denying ownership of the MK bag.

Testimony of RCMP Officer Hobson

The Cocaine

[94] The evidence of RCMP Officer Hobson was that cocaine was located in two duct-taped flat packages within the lining of the bag of the luggage wall and then screwed into place. No fingerprints were found.

[95] The manner in which the cocaine was hidden was very similar in both Ms. Johnson’s red bag and the MK bag which had Natalia’s luggage tag attached to it. The package was wrapped the same, with duct tape, in vacuum sealed freezer bags in the same shape and location.

[96] Officer Hobson first observed that the red bag, when empty, was backside heavy and it “wanted to tip.” Her observations on the MK bag were similar. It was heavier than one would expect and it was “back heavy.”

[97] Ms. Johnson’s red bag contained 2,999.1 grams of cocaine. The MK bag contained 993.3 grams of cocaine.

[98] Officer Hobson photographed the contents of the red bag, the MK bag, the Lulu bag and Natalia’s “carry-on bag.”

[99] The admitted facts confirmed that Jamaica is a known trans-shipment country for cocaine produced in Peru, Bolivia or Columbia. A kilogram of cocaine may be purchased in Jamaica for $9,500-$13,000, and sold in the Greater Toronto Area for between $40,000 and $50,000, if sold at the kilogram level. Cocaine sold at the gram level sells for $80-$120/gram.

[100] It is admitted that the potential value of the amount of cocaine located in Ms. Johnson’s red bag was between $119,969 and $149,950, if sold at the kilogram level. The value was between $239,920 and $359,880, if sold at the gram level.

[101] Accordingly, the value of the cocaine located in the MK bag was close to $40,000 and $50,000 if sold at the kilogram level. The value would be between $79,464 and $119,196 if sold at the gram level.

POSITION OF THE PARTIES

The Crown

[102] It was acknowledged by both counsel that knowledge was the central issue.

[103] It was the Crown’s position that the Court should reject Ms. Johnson’s testimony as not being credible and find that the only reasonable inference to be made regarding the presence of cocaine in her luggage was that she was aware of it. .

[104] Using common sense, drug importers would want to minimize their risk of getting caught and minimize the risk of losing a valuable commodity worth thousands of dollars.

[105] The Crown emphasized that there was no exit plan for these drugs. The red bag was described by Ms. Johnson as a gift, and there was no plan for it to be recovered or retrieved.

[106] One would reasonably expect that Natalia would have told Ms. Johnson that the red bag was only loaned to her, and to be sure to give it back. This is because an importer would not want something so valuable to be left with an unknowing dupe who may later discover it.

[107] The evidence was that the bag was obviously heavy, even when empty, and would tip due to the weight. If Natalia had not included Ms. Johnson in the plan and left her ignorant of the drugs, it would be risky, as Ms. Johnson could observe the heaviness or tippiness of the bag either at the hotel or later when she got home.

[108] The Crown submitted that it did not make sense that Natalia would trick her niece in this way, considering the long good relationship they had.

[109] The Crown further argued that the Court should be satisfied on the evidence as to the continuity of the MK bag, despite it being taken from the airport by the visiting athletes, in light of the proximity of time between arrival to the airport and its seizure, and the matching identifying baggage stickers, and the indicia that it had not been claimed or opened.

[110] The Crown’s position was that the drug importation was a joint enterprise between the two accused. The cocaine was concealed in the same way in each suitcase; the contents were similar, being largely snack food items; they completed their E311 Declaration cards in a similar fashion, stating they had no food, but were over the exemption, and were bringing back approximately $30.00 of goods.

[111] The Crown argued in the alternative that even if the Court finds Ms. Johnson did not have actual knowledge of the cocaine, the Court should not find it credible that she was not suspicious of why Natalia took her suitcase from the resort temporarily. If the Court finds that Ms. Johnson should have been suspicious but chose not to ask further questions, then knowledge should be found on the basis of wilful blindness.

The Defence

[112] The defence submitted that Ms. Johnson was not in a good place financially in June 2015 and was approached by her favourite aunt, Natalia, to take the place of her aunt’s boyfriend, who could not go on the trip. Natalia reassured her she would not have to repay her and that Natalia would supply her with a suitcase and her passport.

[113] The defence submitted that the trip was uneventful until they argued about leaving the resort to visit Keith’s family and later when Ms. Johnson saw Natalia leave the resort with their bags. When asked why, Natalia told her it was to bring back some clothes and snack food given by Keith’s family.

[114] The defence submitted that Ms. Johnson put clothing in the red bag and that at some point, Natalia put in other things like clothing and snack food. The defence noted Ms. Johnson’s evidence that she never lifted the red bag after that.

[115] The defence argued that the way that Ms. Johnson filled out her E311 card, stating she was over the exemptions, was not characteristic of someone who is trying to avoid attention as that act alone could involve her being sent by customs to secondary examination.

[116] The defence emphasized how, upon arrival, Natalia “was off edge” and told Ms. Johnson that they should split up. Ms. Johnson got her red bag but Natalia did not get her MK bag.

[117] The defence noted that Ms. Johnson was calm and compliant, listening to music on her headphones. In contrast, Natalia was nervous and made remarks with BSO Sakamoto that were inconsistent with a compliant traveler.

[118] The defence submitted that the Crown has not proven knowledge beyond a reasonable doubt.

[119] He argued that the case bears all the hallmarks of a person who found herself in a precarious financial position and who was duped by someone else to bring drugs into the country. He stated that, as this was not a piece of luggage she was familiar with, she would not know if it was heavy or not.

[120] The defence argued that Natalia had access to the luggage alone on numerous occasions, both on and off the resort.

[121] The defence submitted that Natalia displayed signs of a guilty mind and even denied ownership of the MK bag bearing her name and luggage tag.

[122] In comparison, Ms. Johnson was not a seasoned traveller and was on her first trip away from North America. The defence submitted that in comparing the two, Ms. Johnson presented as a forthcoming witness who was genuinely angry and disappointed that she had been duped by her aunt.

[123] The defence submitted that the Crown has not proven wilful blindness as they have not proven that Ms. Johnson did have suspicions about the luggage and deliberately failed to make inquiries, so as to remain in ignorance.

[124] Finally, the defence submitted that if this was indeed a joint venture, that once Natalia chose to not collect her MK bag from the carousel, then Ms. Johnson would also have not claimed her red bag.

LAW

General Principles

[125] This is a credibility case. As a result, the test that applies is as stated in R. v. W.(D.), [1991] 1 S.C.R. 742, where Cory J. stated (at p. 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 built of the accused.

[126] In 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.

[127] The approach to circumstantial evidence of knowledge is clearly explained by Hill J. in R. v. Ukwuaba, 2015 ONSC 2953, at paras. 97 and 98:

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 (2009), 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, 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), 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, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70. Financial pressures, not economic status, may amount to a motive to become involved in a profit-motivated crime: R v. Mensah (2003), 9 C.R. (6th) 339 (Ont. C.A.), at paras. 7-13 (leave to appeal refused [2003] S.C.C.A. No. 207); R. v. Phillips, 2008 ONCA 726, at paras. 50-51.

ANALYSIS

Continuity of the MK Suitcase

[128] The continuity of the MK suitcase was not an agreed fact in the trial. There was, however, no evidence or argument to suggest that the continuity was suspect.

[129] BSO Sakamoto testified, with reference to his notes, that he took possession of the MK bag at 8:12 p.m. from Officer Gidari. The agreed statement of facts states the time as 9:12 p.m. I consider this was probably a typo and prefer the evidence of BSO Sakamoto who gave viva voce evidence being refreshed by his notes that he took possession at 8:12 p.m. on August 2, 2015.

[130] The circumstantial evidence at the trial satisfies me beyond a reasonable doubt that the continuity of the MK bag has been established. Some of that circumstantial evidence is as follows:

• Ms. Johnson’s evidence was that Natalia checked an MK bag on the trip home;
• The MK bag’s appearance is distinctive as a designer bag;
• The baggage tags on the MK bag match the number code of the baggage tag stubs located in Natalia’s purse;
• The baggage tag had Natalia’s name on it;
• The video evidence reviewed by BSO Sakamoto showed that the bag was not interfered with in the baggage hall apart from being tagged by an employee, before a porter took it with the Nicaraguan team luggage;
• The team had not yet collected their luggage from the reception area of Athletic Village;
• The luggage was grouped together after it was unloaded from the team bus;
• The bag was seized by Toronto police by 6:50 p.m. that same day and then handed over to the CBSA.

W.D. Analysis

Does Ms. Johnson’s Testimony Raise a Reasonable Doubt

[131] The content of Ms. Johnson’s evidence in the context of all the evidence was not a sensible story, and I did not find it credible. Despite her evidence of lack of knowledge of the presence of drugs in her suitcase I was not left with any reasonable doubt by her testimony.

[132] Although these events occurred barely two years ago, there were a large number of inconsistencies, some of them on important points.

[133] Several inconsistencies, standing alone, might be considered trivial, for example Ms. Johnson testified that she has not worked for six years and her income was from social assistance. However, BSO Woloszanskyj testified that Ms. Johnson said she was employed part-time, selling corsets for a company called Ultra-Ego clothing.

[134] Ms. Johnson testified initially that Natalia’s boyfriend Keith had bought the red suitcase. Later in her testimony, she said Natalia had bought the red suitcase.

[135] Ms. Johnson testified in her examination in-chief that the Lulu carry-on bag was hers. She stated “it was mine.” Under cross-examination, however, she said that someone in the shelter gave her the Lulu bag to use.

[136] Ms. Johnson testified to Natalia packing the red bag after her. However, BSO Woloszanskyj testified that Ms. Johnson answered yes to the questions, “Did you pack the bags yourself?” “Do you know what is inside?”

[137] Ms. Johnson testified that she had been living in a shelter for months. In contrast, her E311 Declaration Card gave her residence as Apartment 103 – 101 Whiteoaks Court, Whitby. She was not examined on this point but I conclude this is further evidence of her shifting story.

[138] Ms. Johnson’s calm and compliant manner at secondary examination is not decisive one way or the other. She was similarly calm and composed at trial despite admitting she was very nervous.

[139] These points cumulatively may simply indicate a tendency to be sloppy or inaccurate. More significantly, however, other inconsistencies were on important points on which consistency would be expected from a witness telling what had actually happened.

[140] For example, Ms. Johnson testified she was asked to join Natalia on the trip in the second week in June, which is five to seven weeks before the possible date for the trip on the evidence. However, BSO Woloszanskyj testified that Ms. Johnson told her that the trip was planned just two weeks before departure.

[141] Ms. Johnson testified that the Caribana Festival was sold out and so they went the following week than originally planned. On the other hand, BSO Woloszanskyj testified that Ms. Johnson told her the purpose of the trip was to go to a Caribana Festival that started the following week but no flights were available, and so they went a week earlier and did not attend the festival.

[142] Ms. Johnson said she needed the Lulu bag as a carry-on bag for things such as her EPI pen for her allergies. She said she did not have a purse. However, baggage tags show that her Lulu bag was checked as well as her red bag. BSO Woloszanskyj examined Ms. Johnson’s black purse and located an EPI pen. So, in fact, she did have a purse with her.

[143] Ms. Johnson testified that she told Natalia to remove the food items from the red bag so that Ms. Johnson could pack her clothes. According to Ms. Johnson, she packed first and then Natalia put her things into the red suitcase afterwards. On cross-examination, regarding the contents of the red bag, Ms. Johnson identified only one article of clothing, a sweater, plus a red blanket as belonging to her. Ms. Johnson identified the balance of the items, i.e. blanket, snacks and clothes, as belonging to Natalia.

[144] Her ‘yes’ answer to the question concerning exceeding the exemption on the E311 Declaration Card was argued as evidence of her innocence, in that she would choose to call such attention to herself and potentially be sent to secondary examination.

[145] I do not find that evidence supports her lack of knowledge of the drugs for two reasons:

a) She testified that she had no idea what the question meant or was asking of her, such that she had to ask Natalia for advice. b) Natalia, who was described as the knowing importer who duped Ms. Johnson, answered the question on her E311 card in exactly the same way.

An Unbelievable Story

[146] Apart from the inconsistencies in Ms. Johnson’s evidence there were a number of factors that did not add up to a sensible or credible story.

[147] She described Natalia as employed at Tim Hortons, saving all year for this all inclusive vacation with her boyfriend, Keith, who was unable to go on the trip because of an emergency at work. As a result, Ms. Johnson was asked to take his place. However, Ms. Johnson then tells the Court that the dates of the trip were changed. If it were possible to change the dates of the trip, then it would have been reasonable to change the dates so that Keith could go, since he was the one who had already saved for it.

[148] Ms. Johnson testified that the purpose of the trip which Natalia and Keith arranged was to go to the Caribana Festival. The evidence was that either the flights were unavailable or that the festival was sold out and, ultimately, Natalia and Ms. Johnson did not go when the festival was on. A more likely story, however, is that they changed the dates of the trip just for Ms. Johnson because her passport was not issued until July 16, 2015.

[149] It does not make sense that in a long, loving family relationship, that Natalia would run this scheme without telling her niece. They are close and only eleven years apart in age. It makes sense that they would plan it together.

[150] It does not make sense that Natalia would arrange this without complicity in Ms. Johnson. When Natalia returned with the drug-filled bags to the hotel room, Ms. Johnson could have discovered the drugs had she lifted the bag and noticed the unusual weight, or ran her hand inside the bag and felt the bulge or the rigidity in an apparently soft-sided suitcase. Ms. Johnson might have also noted that the bag tended to tip over even when empty. These would all point to risks that Ms. Johnson would discover the contraband in Jamaica and challenge Natalia or call authorities.

[151] It does not make sense that Natalia would do this without Ms. Johnson’s knowledge, because if Ms. Johnson discovered the drugs at home she would have called police and fingered Natalia as the culprit.

[152] It makes more sense that Natalia would ensure Ms. Johnson’s complicity in the scheme.

[153] On Ms. Johnson’s explanation, there is no exit plan for these drugs to get to the party who planted them. This is significant as her bag had twice as much cocaine as Natalia’s bag had. The value of the drugs in Ms. Johnson’s bag was between $119,969 to $359,880. I find it highly unlikely that someone would leave something so valuable to an unknown courier who is resident in a shelter, particularly without an exit plan of how to retrieve that bag. The drugs were screwed into a discrete panel in the lining of the suitcase and would not have been easily removed without getting the suitcase into one’s possession.

So Much Luggage

[154] On the way to Jamaica, the two women each took a large red suitcase plus a carry-on bag for the plane. Each also had a purse. On the return trip to Toronto, each had a larger suitcase lined with cocaine and containing a couple of blankets, a few clothes, and a bunch of snack food. Each of the two women fit almost all of their clothes and personal items into their carry-on bags. Each then checked their carry-on bags rather than carry the bags with them onto the plane.

[155] The blankets they had with them for a trip to Jamaica in August defy any necessity. They also did not travel from Toronto to Jamaica with the snack food. I consider that their red bags enroute to Jamaica were essentially empty and/or certainly unnecessary, apart from being available to bring cocaine back to the country in their lining.

[156] Their packing almost all of their things in the carry-on bags speaks to a recognition that their large bags were already heavy enough due to the cocaine. Filling their large bags with chips and snacks gave the appearance that they were “full”.

[157] My conclusion is that Ms. Johnson took with her to Jamaica an empty and/or unnecessary bag. On the record before me, I am persuaded beyond a reasonable doubt that Ms. Johnson had knowledge of the cocaine that was found in her suitcase on the return trip.

CONCLUSION

[158] Ms. Johnson’s evidence did not raise a reasonable doubt on the issues of her knowledge.

[159] On review of the evidence as a whole I am satisfied that Ms. Johnson knew there was cocaine in the red suitcase.

[160] Accordingly, I find her guilty of importing cocaine.

M. J. Donohue, J.

Released: August 10, 2017