Court File and Parties
CITATION: R. v. Medrano and Cotrina, 2017 ONSC 5528
COURT FILE NO.: CR-16-90000656
DATE: 20170926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Teodoro-Alfonso Medrano and Walter Cotrina
Defendants
COUNSEL:
Sabrina Montefiore, for the Crown
Hubert Gonzalez, for Teodoro-Alfonso Medrano
Reid Rusonik, for Walter Cotrina
HEARD: February 27 and September 11-14, 2017
Reasons for Judgment
E.M. Morgan J.
[1] On July 17, 2015, the RCMP were informed by U.S. Homeland Security agents that a quantity of cocaine had been seized at the Miami airport in a package destined for Toronto. The consignee of the package was apparently the Defendant, Teodoro-Alfonso Medrano. The package was addressed to Mr. Medrano at a residential address on Davenport Road in Toronto.
[2] After a police operation that involved a ‘controlled delivery’ of the package by an undercover RCMP officer driving a DHL truck and dressed as a DHL employee, Mr. Medrano and Walter Cotrina, who had been spotted in an automobile seemingly tracking Mr. Medrano as he received delivery of the package, were arrested. They were each charged with importing cocaine into Canada contrary to section 6(1) of the Controlled Drugs and Substances Act, SC 1996, c. 19 (“CDSA”). They were also initially charged with conspiracy to import cocaine contrary to section 465(1)(c) of the Criminal Code, but the Crown did not proceed on that charge.
[3] There is no question but that the substance found in the package was cocaine. The only question is whether either or both Defendants knew it was there.
I. The cocaine
[4] The RCMP officer in charge of this investigation, Walter Vieira, testified that on July 17, 2015 he was advised that there had been a cocaine seizure at the Miami airport from a Copa Airlines flight arriving from Barranquilla, Columbia. According to the U.S. authorities, the intended consignee of the package was Alfonso Medrano of 2011 Davenport Road, Toronto.
[5] Officer Vieira’s knowledge of this was, of course, hearsay; he did not speak with any U.S. official himself and did not actually know how, when, or where the package allegedly containing cocaine was identified or seized. However, he indicated as part of the narrative that he had received this information from RCMP Sgt. George Johnson, who had in turn heard the news from a U.S. Homeland Security official who presumably called him.
[6] Neither Sgt. Johnson nor anyone from Homeland Security testified at trial.
[7] On July 20, 2015, CBSA Officer Frank Cheah, along with CBSA Officer Kenneth Kirkpatrick and RCMP Officers John Penrose and April Delorne, met American Airlines flight 1668 from Miami upon its arrival at the gate at Toronto’s Pearson Airport. There is some confusion in the evidence as to precisely which gate it was – Officer Penrose thought it was gate B15 while Officer Delorne thought it was gate A15 – but all of the officers were clear that the package came in on an American Airlines flight and that it was in the possession of the airplane captain who greeted them with it at the entrance to the plane.
[8] According to Officer Cheah, the captain handed him a package that he identified as having been delivered to him by US Customs and Border Protection. It was in a sealed white burlap bag and contained a box, although Officer Cheah testified that he could not actually identify the box as he had never opened the bag it came in. Officer Delorne added that she recalled the bag being marked to the attention of “RCMP Constable John Penrose”. Officer Cheah indicated that after receiving the parcel he then filled out a seizure form and handed the package over to Officers Penrose and Delorne.
[9] Officer Delorne likewise did not look inside the white bag that the parcel came in; indeed, she indicated that she never actually took possession of the parcel, but rather that Officer Cheah handed it to Officer Penrose. For his part, Officer Penrose testified that the parcel actually came in a FedEx bag, and that inside the FedEx bag was a plastic Homeland Security bag as packaged by U.S. authorities. Officer Penrose then took the package in that condition back to the RCMP detachment at the airport.
[10] The next day, July 21, 2015, Officer Penrose opened the package and found 10 abrasive grinding wheels like those used in a machine shop. These made the package rather heavy – Officer Penrose estimated that it weighed 30 to 40 lbs.
[11] He could see one of the wheels had a small hole bored into it, which he surmised had been made by the U.S. authorities upon their inspection of the package. Officer Penrose testified that he chipped away the abrasive material of one of the wheels and inside found a led container containing what looked like cocaine wrapped in blue plastic wrap. He then weighed the cocaine and removed it from the wrapping. Altogether, he found 1.99 kilos inside the 10 wheels. He had to smash each of the abrasive wheels to get the led containers and the cocaine out, leaving only one of them intact as a control sample.
[12] Officer Penrose indicated that he then went to a nearby shop – Princess Auto – and purchased 9 similar abrasive wheels to replace the ones he had broken open. He used the new abrasive wheels with the original labels as he had found them in the package, put them back in the box, and re-taped the package to look like an intact DHL parcel. He testified that by the end of the day on July 21, 2015, he had a complete mock-up of the package for use in a controlled delivery to the named consignee. He then stored it in the RCMP security locker to wait for the controlled delivery to be staged the next day.
II. The delivery
[13] On July 22, 2015, Officer Penrose handed the package over to RCMP Officer Liosha Kazlou, the undercover officer who donned a DHL uniform shirt and drove the package in a DHL delivery truck to 2011 Davenport Road. Officer Kazlou described the parcel as beat up and shapeless, wrapped with tape, and heavy enough that he had to carry it up on his shoulder rather than in his arms alone. He testified that after driving to the designated address he walked up to the front door with the parcel, knocked 4 times, but got no answer. He took out a DHL “door knocker” note, filled in the “we missed you” box, and left it on the door handle.
[14] Officer Kazlou testified that he then handed the package to another officer, Constable Rob Saede, who apparently returned it to the security locker where Officer Penrose had retrieved it earlier. Officer Kazlou indicated that the parcel was returned to the locker in the same form as he had received it, still taped and closed.
[15] Officer Kazlou repeated the same controlled delivery attempt the next day, July 23, 2015. Again, he did not find anyone home at 2011 Davenport, and so left a “door knocker” note and returned the parcel to the security locker at the RCMP detachment.
[16] On Monday, July 27, 2017, Officer Vieira received an email from DHL Canada indicating that someone named Alfonso had been in touch on July 24th apparently in response to the note left by Officer Kazlou. Officer Vieira contacted DHL customer service to make arrangements for the controlled delivery the next day.
[17] On July 28th, after a morning briefing, Officer Vieira received a phone call from RCMP Sgt. Bryan Sexton, who set up the controlled delivery. Officer Kazlou testified that on that day he was again the undercover officer effecting the controlled delivery. He said that he called the contact number on the waybill that was attached to the parcel, and that a man with a Spanish accent answered. Officer Kazlou asked for Alfonso Medrano and said that it’s DHL with a parcel to deliver.
[18] When Officer Kazlou arrived at the Davenport Road address, he saw an older male sitting on the porch and another standing in the doorway. Officer Kazlou asked if the man standing at the doorway was Alfonso Medrano, and showed him an envelope he had in his hand. Officer Kazlou then told him he needs a signature on the waybill and went back to his truck to get a DHL form for him to sign. He testified that Mr. Medrano was shaking when he signed the form.
[19] Officer Kazlou indicated that he put the parcel down on the front porch of the Davenport house when he handed the form to Mr. Medrano to sign. He said that he saw Mr. Medrano pick up the package and wrap it in a garbage bag that was sitting there, and saw that he had a cart of some kind but did not see him actually put the package in the cart as that happened when Officer Kazlou turned his back to return to his truck. When the Officer looked back around, the parcel wrapped in the garbage back was in the cart and Mr. Medrano had started pushing it (or pulling it, he could not recall which) away from the house and eastbound on Davenport Road.
[20] Mr. Medrano did not get far with his cart as he was stopped and arrested within a few moments. At the time of his arrest, he had not opened or inspected the parcel in any way except with the most cursory glance when picking it up from the porch. He had not removed the parcel from the cart or looked at it again after placing it in the black garbage bag.
[21] Officer Penrose, who was on scene when Mr. Medrano was arrested, described the contents of the cart. It contained the DHL parcel that Officer Kazlou delivered, a black garbage bag, a grey plastic shopping bag full of what appeared to be soiled clothing, and a yellow plastic container of Tide laundry detergent. For his part, Officer Kazlou testified that he had not noticed any items in Mr. Medrano’s cart other than the DHL package in the black garbage bag. It is noteworthy that photos taken by Officer Penrose at the scene of the arrest show the grey plastic laundry bag and the bright yellow detergent container lying right on top of the cart. As positioned in the photos, one could not see the black garbage bag containing the DHL package without also seeing these items as well.
[22] I do not say this as a comment on Officer Kazlou’s credibility; there was nothing to suggest that he was relaying anything but his honest memory. But his memory may not be reliable given the pressure of the moment. He testified that this was his first undercover assignment as a police officer, which is doubtless a stressful task. He had to deliver what he knew to be illegal drugs to a person with whom he was unfamiliar and from whom he did not know what to expect. He had been led to believe that this person must be an illegal drug importer, and his observations may have been clouded by this preconception. That could at least explain why he saw only the package containing what he had been told are illegal drugs, and did not see not the more colourful and obvious items sitting on top of it in plain view.
III. The automobile driver
[23] Several of the police officers involved in the controlled delivery testified that they noticed a black Acura cruising around in the vicinity of 2011 Davenport at the time of Officer Kazlou’s delivery to that address. Officer Vieira was conducting surveillance from his vehicle, and noted down the Acura’s license plate as AYNL 630. He pulled out from where he was waiting and saw the Acura heading eastbound on Davenport and turn northbound. It then made a U-turn and headed westbound on Davenport. He said that he followed the Acura for a bit and then let it go to focus on Mr. Medrano walking along Davenport with the package.
[24] Officer Kazlou testified that he also noticed a black Acura parked in front of him as he was leaving 2011 Davenport. He indicated that he saw Mr. Medrano walk up to the passenger side of the Acura and lean into the window. He also said that he saw the person inside the car wave his arm, as if signaling to Mr. Medrano to keep going. At the same time, Officer Kazlou conceded that he could not see the driver of the Acura because of its dark tinted windows. He stated that Mr. Medrano continued walking east along Davenport without stopping any further.
[25] That testimony can be counterpoised with that of 20-year RCMP veteran Jennifer Oliveros. She indicated that she also was part of the surveillance team accompanying the controlled delivery.
[26] Officer Oliveros drove by 2011 Davenport and noted that a male fitting Mr. Medrano’s description was standing on the front porch. She then drove to Uxbridge Street, which is just east along Davenport and runs north-south. She turned north onto Uxbridge, turned around and parked on that street facing south toward Davenport.
[27] While sitting there, Office Oliveros heard on the radio that the package had been accepted by an unknown male. The description of the man sounded to her like the same man she had seen on the porch. She heard that he was moving eastbound on Davenport with a shopping cart. At that point she started moving southbound on Uxbridge Street. At the same time, the black Acura turned north onto Uxbridge. Officer Oliveros noted that the driver had long hair.
[28] Officer Oliveros testified that once the Acura turned northbound, she started to think that perhaps the driver was not involved in this matter at all. But then she noticed that the Acura did a U-turn and was driving southbound behind her. Officer Oliveros stopped at a stop sign and waited a long time to radio her colleagues about the Acura. In cross-examination, she indicated that the driver of the Acura did not honk when he was stuck behind her at the corner of Uxbridge and Davenport. She stated that he could possibly have gestured or waived her on as he sat waiting in his car, but she could not specifically recall.
[29] After that, Officer Oliveros said that she saw the Acura driver slowly pass Mr. Medrano with the shopping cart. Officer Oliveros again started second guessing herself as to whether the two people would interact. At that point she lost sight of the Acura, but a few moments later saw it circling back and passing her on Uxbridge going south. Officer Oliveros said that she saw the driver proceeding at a normal speed and looking into the side mirror.
[30] The driver of the Acura turned out to be the Defendant, Walter Cotrina. Although Officer Oliveros was the one who collected the items that were seized from Mr. Cotrina’s person and his car, she was not the arresting officer. She testified that her function was traffic control so that civilians would not get in the way of the takedown. She indicated that she had the arresting officers place the seized items in an exhibit bag. These items included two cell phones (one regular phone and one smart phone), an ATM receipt for approximately 2 million Columbian pesos (which is apparently the equivalent of just under $1,000), a printout from the internet of a Copa Airlines flight schedule history, a Rexall Pharmacy prescription in Mr. Medrano’s name, and a scrap of paper with the 2011 Davenport Road address written on it.
[31] Interestingly, Officer Oliveros’ notes indicated that she heard over the police radio that the driver of the black Acura appeared to wave off Mr. Medrano as he walked by the car. She acknowledged, however, that her note to this effect was not written contemporaneously with the event like the majority of her notes, but rather was added later when she was back at the police station. Importantly, although she had kept her eye on the Acura through much (but not all) of the time she was on the surveillance detail, she did not see Mr. Medrano approach the black Acura or Mr. Cotrina wave to him.
[32] There is obviously some confusion between Officer Kazlou’s account of Mr. Cotrina’s wave and Officer Oliveros’ account. In Officer Kazlou’s version, this would have had to occur very soon after the delivery was made, since he did not pursue Mr. Medrano or Mr. Cotrina in the DHL delivery truck; in fact, Officer Kazlou said that he saw the wave occur just as he got back into his truck. That would have been at a time when Officer Oliveros had her eye on the black Acura. It was several minutes later, after the Acura made its U-turn and drove around the block, that she lost sight of it momentarily. Thus, Officer Oliveros should have seen what Officer Kazlou saw if Officer Kazlou’s rendition is accurate.
[33] On the other hand, Officer Oliveros conceded that it is altogether possible that Mr. Cotrina waved not at Mr. Medrano (who was walking nearby) but at Officer Oliveros who was standing still in front of him at a stop sign. If what Officer Kazlou remembered seeing was a wave from the window of the Acura facing southbound just off the corner of Uxbridge and Davenport rather than a wave from the Acura facing eastbound just off the same corner, his account and Officer Oliveros’ account would coincide more closely.
IV. The parcel
[34] The tracking history on the Copa Airlines paper found in Mr. Cotrina’s car is incorrect on its face. It indicates that the parcel originating in Columbia entered Canada Customs, which we know is not true. The parcel never cleared Customs in Canada, as it was handed directly by the American Airlines pilot to a CBSA officer and then immediately transferred to the RCMP. Counsel for the defense submit that this discrepancy immediately raises a doubt as to whether the parcel that was delivered to Mr. Medrano was actually the one that he and/or Mr. Cotrina were expecting.
[35] Defense counsel also point out that there is something odd about the labels found on the DHL package that was delivered in the controlled delivery. The box contains a DHL label indicating its route: CA (Columbia)-YHM (Hamilton)-YTZ (Billy Bishop). It also contains a Copa Airlines courier label that traces a different route: BAQ (Barranquilla) and PTY (Panama). Neither of the labels indicate that it was ever in Miami or sent to Toronto Pearson Airport, although the courier address label contains a Miami return address in fine print.
[36] As indicated earlier, no one from Homeland Security or any other U.S. agency ever testified to establish the continuity of the parcel en route from Columbia to Toronto. While this might not be problematic if everything else about the parcel was as expected when it arrived from the United States, but all is not as expected. To add one more mystery to the story, the parcel was delivered by the captain in a white FedEx bag, yet there is no involvement of FedEx anywhere with respect to this parcel. The sender used DHL as its courier and that company sent it by cargo on Copa Airlines. Why and how it ended up in a FedEx cover is unexplained and again raises questions abut the provenance of the parcel.
[37] Since Mr. Medrano never opened the parcel, he would have had to identify it by a quick glance at the box and the labels found on the box. That would likely have been impossible given the confusion over the labeling and the non-conformance of the apparent route taken by the parcel with the route that the Crown and its witnesses suggest Mr. Medrano would have expected the parcel to take. Every effort was made by the police to make this delivery look normal and unsuspicious. Counsel for Mr. Medrano submits that that is the reason his client accepted the package, no questions asked. Neither the outside of the box nor the DHL delivery slips say what’s in it.
[38] Counsel for Mr. Medrano submits that while the evidence may establish a link between the parcel delivered by Officer Kazlou and Mr. Medrano, it does not establish a link between Mr. Medrano and the import of a parcel from Columbia.
[39] Counsel for Mr. Cotrina submits that he same is true of his client. In order to affirmatively identify the parcel as the one he was expecting, its markings and route would have to conform with the tracking history that Mr. Cotrina expected the parcel to follow. As it stands, however, that does not appear to be the case. Mr. Cotrina’s counsel submits that while the evidence may establish a link between Mr. Cotrina and Mr. Medrano as well as a link between Mr. Cotrina and a Copa Airlines package, it does not establish a link between him and the particular package that was imported into Canada.
V. The offense of importing
[40] In R v Bell, 1983 CanLII 166 (SCC), [1983] 2 SCR 471, 472, the Supreme Court of Canada held that, “To convict of importing, it is not necessary to show that the accused actually carried the goods into the country. Neither is it necessary to show that the accused was present at the point of entry.”
[41] That said, “To prove that a recipient is guilty of importing, something more that receipt and knowledge of receiving a controlled drug is required to prove that the recipient was either a principal in, or party to, importing… In other words, the Crown must prove that [the Defendant] knew that the drugs he knowingly expected and accepted were from out of the country”: R v Atuh, 2013 ABCA 350, [2013] AJ No 1101, at para 7 (Alta CA).
[42] Turning first to Mr. Medrano, the Crown’s case turns on the fact that he took delivery of the parcel containing the grinding wheels with cocaine hidden inside. That said, he was arrested before ever having opened the package or really even inspecting it to see what it was. While he seemed to be ready for it – he was waiting on his porch with a cart to haul the heavy parcel away – that is not surprising considering that he had received DHL notices that a parcel was to be delivered. The notices themselves did not reveal anything about the contents or the origin of the parcel.
[43] In R v Sood, [2010] OJ No 1101, at para 50 (SCJ), also a drug importing case, the court noted that, “Picking up an item does not mean knowledge that the items included (or were supposed to include) illegal substances.” The Crown needs to prove more than that Mr. Medrano received the package from the officer disguised as a courier. It needs to prove that he knew what was in it. Counsel for the Crown points to the circumstances of Mr. Medrano’s receipt of the parcel, where he was prepared with a cart and was careful to place it in a garbage bag so that he could walk away with it unobtrusively. She submits that this behaviour is consistent with receiving a package containing a substantial amount of illicit drugs.
[44] Although it is axiomatic in criminal law, it bears repeating that the onus is on the Crown to prove the case beyond a reasonable doubt. There is no direct evidence that Mr. Medrano saw or knew about the contents of the parcel. This is therefore a case that should be analyzed in terms of the rule in Hodge’s Case (1838), 1838 CanLII 1 (FOREP), 168 ER 1136. That rule provides that, “where all the evidence is circumstantial the accused can be found guilty only if the evidence is both consistent with guilt and inconsistent with any other rational conclusion”: Mezzo v The Queen, 1986 CanLII 16 (SCC), [1986] 1 SCR 802, at para 12. Put another way, “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 Ukwuaba, 2015 ONSC 2953, at para 98, citing R. v. Griffin and Harris (2009), 2009 SCC 28, 244 CCC (3d) 289 (S.C.C.), at paras. 33-4 (SCC).
[45] Mr. Medrano’s conduct – in particular being ready with a cart to facilitate walking with a heavy parcel – is, of course, consistent with receiving a package of illegal drugs hidden within a number of heavy metal grinding wheels. It is also equally consistent with receiving a package of heavy metal grinding wheels without the hidden drugs. All we really know is that Mr. Medrano received a package whose origins would be difficult if not impossible to discern by looking at the labels on it, and that he was prepared for it to be heavier than one can comfortably walk with and carry. While I acknowledge that the Crown is not required to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”, R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] SCR 2, 8, as trier of fact I am obliged to “consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt”: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para 37.
[46] The evidence provides no other insight into Mr. Medrano. I do not know if he is a machinist by trade and works with metal grinding wheels; I do not know if he has connections to Columbia or reason to import things from that country; I do know that he speaks Spanish as both Defendants have used an interpreter during the hearing, but I do not know if he is gainfully employed or whether he lives at the Davenport residence or only uses it for deliveries, etc.
[47] I do know that Mr. Medrano is somehow connected or known to Mr. Cotrina since his address and Rexall prescription were found in Mr. Cotrina’s car, but that does not take me very far. One acquaintance driving by another, even in suspicious circumstances, raises a suspicion and grounds from which I might draw an educated guess about what was going on between them. As Doherty J.A. stated in USA v Huynh (2005) 2005 CanLII 34563 (ON CA), 200 CCC (3d) 305, at para 7 (Ont CA), “The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess.”
[48] Turning to Mr. Cotrina, the evidence suggests that he was about to contact Mr. Medrano. While, again, there is no direct proof of that – he may have been driving around the neighbourhood in the vicinity of Davenport Road for other reasons – that seems entirely unlikely. He had papers in his car indicating that he knew Mr. Medrano, and several police officers concluded in observing his driving that he was conducting counter-surveillance of Mr. Medrano as he walked along the street. I have no reason to doubt the officers’ credibility or reliability in forming this view.
[49] Similarly, it takes very little in the way of conjecture to conclude that Mr. Cotrina was doing or planning to do something illegal. One does not circle a neighbourhood in counter-surveillance in order to pick up a box of metal grinding wheels. Since the package being transported in Mr. Madrano’s cart turned out to have cocaine in it, it is not speculation or a mere educated guess to conclude that Mr Cotrina was planning to buy or take delivery of the cocaine. Nothing else makes sense.
[50] That said, I do not know how far back Mr. Cotrina’s involvement with the parcel goes. The Supreme Court of Canada has held that importing narcotics is not a continuing offence: see R. v. Bell (1983), 1983 CanLII 166 (SCC), 8 CCC (3d) 97 (S.CC). Thus, the offence was complete when the package arrived from abroad at Toronto airport: R. v. Rai (2011), 2011 BCCA 341, 277 CCC (3d) 389, at para 23 (BCCA). Accordingly, “[k]nowledge of the illicit drug’s presence and the intent to import must precede the narcotic’s entry to Canada”: R. v Ukwuaba, 2015 ONSC 2953, at para 102(3).
[51] Whether or not Mr. Cotrina had an intent to buy or take delivery of the cocaine, did he have an intent to import it? On the state of the record at trial, it is hard to know. While it is clear that “[t]o convict of importing, it is not necessary to show that the accused actually carried the goods into the country”, Bell, at p. 489, it is also the case that “something more than receipt and knowledge of receiving a controlled drug is required to prove that the recipient was either a principal in, or a party to, importing”: R. v. Atuh, supra, at para 7.
[52] The Crown’s case against Mr. Cotrina presents a close call. In order to flesh this out, Hill J. reviewed in Ukwuaba, at para 107, a variety of facts which have led courts to the conclusion that an accused had knowledge of the importing of illegal drugs. These include: the accused’s possession of documents including the name and address of the exporter in the foreign country of origin (R. v. Bond, [1999] OJ No 4562, at para 10 (CA)), evidence that the accused was “centrally involved in the importation of the drug into Canada” (Rai, at paras 19, 20) or that he had “caused the importation of the narcotics into Canada” (R. v. Doiron, [1989] NBJ No. 12, 4 (NB CA)). They also include the accused making “arrangements” in Manitoba as part of a plan to import heroin (R. v. Hayes (1996), 1996 CanLII 17943 (MB CA), 105 CCC (3d) 425, at paras. 29, 30, 33, 35 (Man CA)), the accused’s facilitation of shipment into Canada (R. v. Giammarco, 2011 ONSC 6649, at para 118), and evidence indicating whether the accused “took any positive steps to assist in the importation” (R. v. Schwengers, 2005 BCPC 578, at para 85).
[53] Overall, Hill J. observed in Ukwuaba, at para 106, that “the taking of a controlled delivery with proven knowledge of its contents and foreign origin is frequently viewed as an important circumstantial fact in the overall assessment as to whether the accused is criminally liable for the commission of an unlawful importation.” Moreover, since an accused may be either the principal or a party to the offence, he does not have to have had knowledge of each and every detail of the crime so long as he was aware of the nature of the crime (i.e. importing) and knew the circumstances of the importing of the drugs: Ukwuaba, at para 105, citing R. v. Roach (2004), 2004 CanLII 59974 (ON CA), 192 CCC (3d) 557, at para 34 (Ont CA).
[54] As indicated earlier, there is some evidence that Mr. Cotrina was tracking a Copa Airlines flight, although given the oddities of the labelling of the parcel in question it is not entirely certain that it was the particular parcel that ended up being delivered to Mr. Medrano. Crown counsel also relies on the fact that there was a receipt for Columbian pesos in Mr. Cotrina’s car as evidence that he had something to do with buying the drugs before they left their point of origin. It is the Crown’s view that the presence of a Columbian currency receipt cannot be ignored.
[55] I am unsure what to make of the Columbian peso receipt, and am concerned that it may be more prejudicial than probatory. A bank machine withdrawal of the equivalent of roughly $1,000 does not necessarily lead to the conclusion that Mr. Cotrina financed the export of what was estimated by the RCMP to be an $88,000 shipment of cocaine. Mr. Cotrina may have used this relatively small amount of money for drugs in Columbia, or, alternatively, he may simply be suspect because he was ‘banking while Columbian’.
[56] There is in fact no evidence that Mr. Cotrina knew of or had any dealings with the sender of the drugs. He may possibly have arranged for the importing of the cocaine from Columbia, or he may possibly have arranged to be a buyer once it was already in Canada. This either/or situation is problematic for the Crown. On a charge of importing, the court can “only convict if the Crown proved beyond a reasonable doubt that he intended to import a controlled substance”: R. v. Rashidi-Alavije, 2007 ONCA 712, at para 27.
[57] Mr. Cotrina was charged with importing and conspiracy to import, not with possession for the purpose of trafficking or conspiracy to traffic. Under the circumstances, if there is a reasonable possibility that he engaged in conduct which constitutes the former set of offences, there is also a reasonable possibility that he did not engage in such conduct but rather engaged in conduct which would constitute the latter set of offenses.
VI. Disposition
[58] Under these circumstances, I find both Mr. Medrano and Mr. Cotrina not guilty of the offenses charge.
Morgan J.
Released: September 26, 2017
CITATION: R. v. Medrano and Cotrina, 2017 ONSC 5528
COURT FILE NO.: CR-16-90000656
DATE: 20170926
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty The Queen
– and –
Teodoro-Alfonso Medrano and Walter Cotrina
Defendants
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: September 26, 2017