ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Quayat, for the Crown
- and -
ANNA-KAY BAILEY-JOHNSON and ROCHELLE VASSELL
R. Rusonik, for R. Vassell
J. Rekai, for A. Bailey-Johnson
HEARD: October 11, 12 and 13, 2017, at Brampton
REASONS FOR JUDGMENT
André J.
1The Royal Canadian Mounted Police charged Anna-Kay Bailey-Johnson and Rochelle Vassell on April 12, 2015 with the offence of importing cocaine into Canada. Both accused have pleaded not guilty to the charge. Ms. Bailey-Johnson testified that Ms. Vassell and herself went to Saint Lucia on April 5, 2015 for a vacation. The day before they left St. Lucia to return to Canada, three St. Lucian men barged into their hotel room, threatened them at gunpoint, tortured Ms. Vassell and forced them to carry two suitcases to Canada, failing which they would kill Ms. Bailey-Johnson’s mother who lived in St. Lucia. The Crown submits that Ms. Bailey-Johnson’s testimony is nothing more than a fabrication to escape liability for her voluntary decision to import cocaine into Canada.
BACKGROUND FACTS
2The Crown’s case against Ms. Vassell and Ms. Bailey-Johnson was virtually uncontested. The Crown submitted an Agreed Statement of Facts which summarized its case against the accused. It indicates the following:
The accused traveled together to Saint Lucia on April 5, 2015. They left Canada from Pearson International Airport.
Ms. Vassell booked the airline tickets on behalf of herself and Ms. Bailey-Johnson on March 30, 2015. Ms. Bailey-Johnson provided the full spelling of her name and birthdate in a text message to Ms. Vassell on March 27, 2015. Ms. Bailey-Johnson did so for the purpose of having Ms. Vassell book air travel for them to Saint Lucia.
At the time of their arrest by officers from Canada Border Services Agency (“CBSA”) (detailed below), both Ms. Bailey-Johnson and Ms. Vassell were in possession of an itinerary bearing both their names.
On April 12, 2015, the accused returned from Saint Lucia to Toronto’s Pearson International Airport aboard Air Canada Flight 1603. On the flight home, they sat next to each other.
Shortly after arriving in Toronto (approximately 9:30 pm), both accused were referred to secondary inspection.
Prior to picking up their bags and proceeding to secondary inspection, both accused encountered a different CBSA officer who reviewed their E311 customs declaration cards.
Ms. Bailey-Johnson in Secondary
Ms. Bailey-Johnson was processed in secondary by Border Services Officer (BSO) William David Gilbey.
Ms. Bailey-Johnson was asked if the bags in her possession were hers, if she had packed the bags herself and if she was aware of the contents of the bags. She responded yes to all three questions.
Ms. Bailey-Johnson also acknowledged to BSO Gilbey that she had reimbursed Ms. Vassell for her ticket to Saint Lucia, but could not recall the amount.
A search of Ms. Bailey-Johnson’s large checked bag revealed the presence of anomalies in the lining of the suitcase. BSO Gilbey penetrated one of the anomalies, revealing a white powdery substance that tested positive for the presence of cocaine.
Ms. Bailey-Johnson was arrested at approximately 10:10 pm.
Subsequent to her arrest, and when asked by BSO Gilbey if she had ingested or inserted anything in her body, Ms. Bailey-Johnson responded “[c]an’t on my period. Already caught in the act, I didn’t swallow anything. I didn’t insert anything”.
Within minutes of her arrest, BSO Gilbey observed that Ms. Bailey-Johnson was dehydrated, with a white line around her mouth. Ms. Bailey-Johnson indicated that she had not eaten that day.
During a search of her person in secondary, Ms. Bailey-Johnson was observed to be wearing two bras. When asked why, Ms. Bailey-Johnson did not provide an explanation.
Ms. Bailey-Johnson was noted to be very timid and polite. She asked to call her mother.
After her arrest by BSO Gilbey, Ms. Johnson was arrested by RCMP Constable Dora Hobson and transferred to RCMP custody.
Ms. Vassell in Secondary
Ms. Vassell was processed in secondary by BSO Aimee Walker starting at approximately 10:03 pm. Ms. Vassell was questioned and advised that she had stayed at the Palm Haven during her trip to Saint Lucia, but could not indicate what city or town the Palm Haven was located.
When asked by BSO Walker if she had left Canada with the bags in her possession, Ms. Vassell responded “yes”. Ms. Vassell also acknowledged that the bags with her were hers, that she had packed them herself and that she was aware of their contents.
Ms. Vassell advised that she worked at Scotia Bank as a bank teller. Ms. Vassell also confirmed that she had booked her ticket and that of Ms. Bailey-Johnson. Ms. Vassell advised that she had booked the tickets two weeks ago.
A search of Ms. Vassell’s large checked bag by BSO Walker revealed the presence of anomalies in the lining of the suitcase. BSO Walker penetrated one of the anomalies, revealing a white powdery substance that tested positive for the presence of cocaine.
Ms. Vassell was arrested by BSO Walker at approximately 10:09 pm.
At approximately 10:35 (subsequent to her arrest by CBSA), BSO Roberts observed burn marks on Ms. Vassell’s left hand.
After her arrest by BSO Walker, Ms. Bailey-Johnson was arrested by RCMP Constable Dora Hobson and transferred to RCMP custody.
The Suitcase and the Cocaine
The cocaine that was located in the suitcases of both accused were secreted in almost identical fashion. Both suitcases had panels added to the base (near the wheels), the back, and top portion (near the handle) that contained flat and densely packed cocaine. Many of the factory rivets for each suitcase had been replaced with metallic screws not used in suitcases.
The cocaine itself was secreted in the panels lining the suitcase, with panels located along the back of the suitcase, and the bottom and top portions (near the wheels and handles).
The total amount of cocaine in Ms. Bailey-Johnson’s suitcase was 1.451 kg. Testing by Health Canada confirmed the substance to be cocaine.
The total amount of cocaine in Ms. Vassell’s suitcase was 1.468 kg. Testing by Health Canada confirmed the substance to be cocaine.
In 2015, the prevailing price of cocaine, if sold at the kilo level, was $36,000 - $44,000 per kilo. For the total amount in this case (i.e., 2.918 kg), this nets a value range of $105,048 - $129,392.
Both Ms. Bailey-Johnson and Ms. Vassell admit that they travelled from Saint Lucia to Toronto on April 12, 2015 in possession of cocaine, and with knowledge that they possessed some form of illegal narcotics in their suitcases.
Both Ms. Bailey-Johnson and Ms. Vassell admit that neither one sought the assistance of any member of law enforcement or any person in authority immediately upon their arrival into Canada on April 12, 2015. At no time did either express in any form to any law enforcement official that they had been threatened or coerced into bringing drugs into Canada on April 12, 2015.
Upon their arrival into Toronto on April 12, 2015, each accused was in possession of a cell phone.
SUMMARY OF MS. BAILEY-JOHNSON’S TESTIMONY
3Ms. Bailey-Johnson was 22 years old at the time of the alleged offence. The Canadian citizen was adopted by her aunt when she was nine years old. Ms. Bailey-Johnson, who was born in Jamaica, moved to Canada at that age. Her mother left an abusive relationship in Jamaica and moved to St. Lucia where she resided in 2015.
4Ms. Bailey-Johnson graduated from the University of Toronto in 2014 with a Bachelor’s degree in Political Science. From 2014 to 2015, she worked at a company called Teaching X Canada. She also trained as a Canada Border Agency Officer.
5It was Ms. Vassell’s idea for the two to visit St. Lucia. Ms. Vassell was going to revive her relationship with an old flame who had previously lived in Canada. Ms. Bailey-Johnson was amenable to the idea because she had planned to go there with her sister in 2014 to visit her mother with whom she had had little contact before she turned 19.
6Ms. Bailey-Johnson and Ms. Vassell stayed at the Palm Havens Hotel in Castries. Over the next few days, the two engaged in a number of activities. They rode on jet skis, went to a beach party, visited the Soufriere attraction in the south of the island, travelled on horseback at the invitation of two males, and on one occasion, met the Brazilian counsel for St. Lucia. Ms. Bailey-Johnson took dozens of photographs with her cellphone. She testified under cross-examination that she never took one photograph when she could have taken ten.
7Ms. Bailey-Johnson also met her mother two days after arriving in St. Lucia. They went to the Soufriere and later to a roadside restaurant for dinner. She gave her mother some money. Ms. Bailey-Johnson’s mother was accompanied by two friends.
8The two accused met Ms. Vassell’s old boyfriend the following evening. They also met the males who took them on jet skis. The males invited them to a bar but they declined. The next day, they met Ms. Vassell’s boyfriend again. Ms. Bailey-Johnson went to their hotel by herself. Ms. Vassell joined her later. On Friday, the two went to a two-day party with Ms. Vassell’s boyfriend and another male. Again, they met the “jet ski” guys who offered to take them to the party. They declined.
9On the Saturday, before their departure, Ms. Bailey-Johnson met her mother in the morning. Ms. Bailey-Johnson sent a “Whatsapp” message to her sister to update her about her mother.
10Later that evening at approximately 11:00 p.m., the accused went to a party. They later decided to return to the hotel.
11While walking to the hotel, they saw one of the “jet ski guys”. He called them from behind. He ran towards them. He spoke in the local St. Lucian creole. Ms. Bailey-Johnson testified that she could understand the local vernacular given that she had knowledge of the Jamaican dialect.
12While walking away from this male, two other males approached Ms. Bailey-Johnson and Ms. Vassell. The two males were aggressive. They were two of the “jet ski” males they had seen earlier in the week. The men reproached the accused for “denying” them during the week. Ms. Bailey-Johnson and Ms. Vassell told the men they were returning to their hotel.
13The taller of the two males grabbed Ms. Vassell’s hand and pulled her purse. She pushed him off. The other male pulled her from behind. The men pushed her to the ground. They stood over her. The other male held Ms. Vassell. The tallest male digitally penetrated Ms. Bailey-Johnson. The men then took the purses of the accused and ran away.
14The accused walked away and saw a woman selling food outside a shop. The woman’s husband came out of the shop. He asked them where they were from. Ms. Bailey-Johnson saw the males in a car and pointed them out to the man. The man approached the males in the car and demanded the return of their passports failing which he would call the police. The males threw the purses at the man. Ms. Bailey-Johnson never contacted the St. Lucia police because she believed that they were corrupt and would not do anything to help them.
15The accused returned to their hotel at approximately 3:10 a.m. and started to pack their bags. While doing so, they twice heard a bang on their door. Ms. Vassell went to the door. Ms. Bailey-Johnson heard someone saying “push door”. A male then barged in. He was tall and had a dark complexion. Another male, also entered the room. The shortest of the three remained at the door while the taller male told Ms. Bailey-Johnson to go to a corner of the room. This male proceeded to tie Ms. Bailey-Johnson and Ms. Vassell’s hands. The tall male had a firearm. He emptied the contents of their suitcases on the floor. The tall male tapped Ms. Bailey-Johnson on her head with the gun after Ms. Bailey-Johnson falsely told them that Ms. Vassell and herself were from Montreal.
16The tall male left the room with the accused’s passports and luggage. Before doing so he gave the second male his gun. He told the second male in St. Lucian creole to watch them and not to kill them.
17The tall male eventually returned with two suitcases and a plastic bag with the accused’s possessions.
18“We threw everything inside”, Ms. Bailey-Johnson testified.
19The tall male lit a kerosene lamp. He asked Ms. Bailey-Johnson whether the lady with the birthmark at the back of her neck was her mother. He told her he had seen Ms. Bailey-Johnson and Ms. Vassell with the lady. Ms. Bailey-Johnson believed that if she did not cooperate with the men, they would hurt her mother.
20The tall male then tipped oil from the lamp onto Ms. Vassell’s hand. “It was burning her”, Ms. Bailey-Johnson testified. The accused did not scream because of the threat of the gun.
21Both accused dressed under the watchful eyes of the men. The shorter male brought their suitcases to the front of the hotel. The taller male threatened to “shoot up” the place. As a result, neither accused told anyone at the St. Lucian airport, on the flight back to Canada, or at the Canadian airport what had happened to them. Ms. Bailey-Johnson feared that if she did so, her mother would have been harmed. The tall male had earlier told Ms. Bailey-Johnson that he knew people who worked at the St. Lucia airport. Ms. Bailey-Johnson did not see any police officers at the St. Lucia airport, and in any event, would not have reported the incident because the tall male had said earlier that he knew where her mother lived. He told her that one of his friends would call her once she arrived in Canada. Ms. Bailey-Johnson testified that she always wore two bras; specifically, a white one over a red one.
22The tall male and second male accompanied Ms. Bailey-Johnson and Ms. Vassell to the airport. The shortest male left after he placed the accused in the car that transported them to the airport. Ms. Bailey-Johnson never saw her old suitcase again after it had been taken away from her in the hotel room.
23The tall male stayed with them when they checked out of the hotel. The second male brought their suitcases to the check-in counter at the St. Lucia airport. The tall male accompanied them to the airport. He placed their luggage on the conveyor belt. He then accompanied the accused to the security. Ms. Bailey-Johnson testified that she took dozens of pictures every day of their holidays but took none after she was sexually assaulted. She also noted that she was on “Whatsapp” every day of the trip with the exception of the period from 3:00 a.m. to 3:57 p.m. on the day they left St. Lucia.
ANALYSIS
24There is no dispute that the Crown bears the burden of proving the guilt of the accused beyond a reasonable doubt. Neither is there any dispute that the accused do not have to prove that they acted under duress; rather, the Crown has to prove beyond a reasonable doubt that the accused did not act under duress when they imported cocaine into Canada. Finally, all counsel agree that the principles enunciated in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, apply in this case. They are:
If I believe Ms. Bailey-Johnson, I should acquit;
Even if I disbelieve Ms. Bailey-Johnson; but I am left in a state of reasonable doubt by her evidence, I should acquit; and
Even if I disbelieve Ms. Bailey-Johnson’s evidence and find that it is not capable of raising a reasonable doubt in the Crown’s case, in order to convict, I must be satisfied of her guilt beyond a reasonable doubt, based on the totality of the evidence that I accept.
25Ms. Bailey-Johnson and Ms. Vassell jointly submit that they acted under duress when they imported cocaine into Canada. If they did, then their act of importing cocaine was involuntary and accordingly, they are not criminally liable for their actions.
26This defence has five elements:
that the unknown male threatened to kill or cause bodily harm to Ms. Bailey-Johnson’s mother and Ms. Vassell’s boyfriend unless Ms. Bailey-Johnson and Ms. Vassell imported cocaine into Canada;
That Ms. Bailey-Johnson and Ms. Vassell reasonably believed that the threats would be carried out;
That Ms. Bailey-Johnson and Ms. Vassell had no safe means of escape to avoid the harm threatened;
That the threat issued by the tall male caused Ms. Bailey-Johnson and Ms. Vassell to import cocaine into Canada; and
that the harm Ms. Bailey-Johnson and Ms. Vassell caused was not disproportionate to the harm the tall male threatened.
27To succeed in its case against the accused, the Crown must prove beyond a reasonable doubt that at least one of the essential elements of duress is absent. If I have a reasonable doubt about all of these elements, I am obliged to find the accused guilty of importing cocaine.
28Additionally, if I believe Ms. Bailey-Johnson’s testimony concerning what the “jet ski” men did to her, I must still decide whether or not Ms. Vassell and herself had or did not have a safe means of escape to avoid the harm threatened. This element of the defence requires the court to determine whether there was some other way in which Ms. Bailey-Johnson and Ms. Vassell could have safely extricated themselves from the situation Ms. Bailey-Johnson described she was in without importing cocaine.
29A safe means of escape is an obvious and safe means of escape, such as fleeing or running away from the individual or individuals who issued the threats, or seeking assistance from the police or other authorities. This element requires the court to consider what a reasonable person, faced with a similar predicament, would have done. A reasonable person is one in the same situation as Ms. Bailey-Johnson, and someone who shares her personal characteristics such as age, gender, background and education among others. If the court is satisfied beyond a reasonable doubt that the accused had a safe means of escape, then the defence of duress must fail.
30In R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 61, the Supreme Court of Canada noted the following:
The courts have to use an objective-subjective standard when appreciating the gravity of the threats and the existence of an avenue of escape. The test requires that the situation be examined from the point of view of a reasonable person, but similarly situated. The courts will take into consideration the particular circumstances where the accused found himself and his ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse.
31Defence counsel points to evidence called during the trial which they claim, bolster Ms. Bailey-Johnson’s testimony that the accused acted under duress when they imported cocaine into Canada. This evidence includes the following:
The undisputed burn marks seen on Ms. Vassell’s hand;
The absence of any communication on Ms. Bailey-Johnson’s phone between 3:00 p.m. and 3:57 p.m. on the day she left St. Lucia;
The well-known fact that the local constabulary in St. Lucia is very corrupt;
The fact that the very first person Ms. Bailey-Johnson asked to call, following her arrest, was her mother in St. Lucia;
A photograph marked as an exhibit which shows a picture of Ms. Bailey-Johnson’s mother;
The evidence of Fitzroy Bailey, Ms. Bailey-Johnson’s father, who testified that Ms. Bailey-Johnson’s mother was in St. Lucia in 2015;
Photographs that confirm that the luggage which Ms. Bailey-Johnson and Ms. Vassell returned to Canada were different from those with which they travelled to St. Lucia.
32Undoubtedly, much of this evidence may have the potential of confirming many aspects of Ms. Bailey-Johnson’s testimony. However, the evidence is not necessarily corroborative of her testimony. For example, the injuries on Ms. Vassell’s hand is not necessarily evidence that the tall male tortured her. Similarly, the absence of communication from between 3:00 a.m. and 3:57 p.m. does not prove that Ms. Bailey-Johnson and Ms. Vassell were in the custody of these men during this period. While Ms. Bailey-Johnson may have asked to speak to her mother following her arrest, there is no recording of this conversation confirming that Ms. Bailey-Johnson feared for her mother’s life. Furthermore, Fitzroy Bailey’s testimony that Ms. Bailey-Johnson’s mother was in St. Lucia in April 2015 cannot be given any significant weight given that he never saw Ms. Bailey-Johnson’s mother in St. Lucia.
33Additionally, the fact that the luggage the accused travelled with to St. Lucia was different from that with which they returned to Canada does not constitute proof that they were coerced into importing drugs into Canada. The fact that the luggage had been changed can equally support an inference that the change had been made voluntarily rather than under duress.
34In addition, I have many concerns about certain aspects of Ms. Bailey-Johnson’s testimony.
35First, Ms. Bailey-Johnson says that she failed to report the sexual abuse to the St. Lucia police because it is well known that the force is very corrupt. However, she testified that the “jet ski” males returned their wallets when warned by the shopkeeper that if they failed to do so, he would call the police. And yet Ms. Bailey-Johnson testified that she did not contact the police because she feared that they were corrupt and would do nothing.
36Second, Ms. Bailey-Johnson testified, while being cross-examined by Mr. Rusonik, that she took hundreds of pictures of their activities while in St. Lucia. And yet she admitted in cross-examination that she never took a single picture of Ms. Vassell’s boyfriend who was one of the main reasons for the trip.
37Third, even more significantly, while Ms. Bailey-Johnson testified that she “took” one picture of her mother, this picture does not appear in the “extraction report” which identifies the photographs she took with her phone while in St. Lucia. The defence conceded that this report was accurate. One would imagine that given Ms. Bailey-Johnson’s avowed purpose for the trip, she would have taken numerous pictures of her mother and others with her mother and herself. Her explanation for this omission was that her mother did not feel confident enough to take a picture. This seems unrealistic. Neither is there any “Whatsapp” message from Ms. Bailey-Johnson to her mother although it is quite possible that her mother did not have a phone and that even if she did, she may not have had “Whatsapp” on her phone.
38Additionally, the “Whatsapp” messages sent by Ms. Bailey-Johnson on April 12, 2015 to a friend raise serious doubts about her testimony that her friend was tortured and that she was sexually assaulted and threatened with a gun before being forced to import drugs into Canada. She sent the following message to a friend called “Toya” at 7:53:45 hours p.m.:
Just wanted to thank you and Henry so much for your hospitality and good cooking. Please also let Mickey know we really appreciate everything.
39Ms. Bailey-Johnson sent another message at 7:56:48 hours p.m. on April 12, 2015, this time to a friend called “Nicky”:
Thank you so much for everything, this was such an awesome trip and you made it even better, thanks for being so patient with us. Hope to see you soon, stay in touch.
40Ms. Bailey-Johnson testified that she sent these messages to create a semblance of normalcy. However, she had no basis to believe that Toya was in any way linked to the “jet ski” males. Furthermore, she never inquired about her mother at any time.
41Ms. Bailey-Johnson’s counsel points to other “Whatsapp” messages from Ms. Bailey-Johnson to an unknown person which she claims confirms Ms. Bailey-Johnson’s belief that the threats from the males were real.
42At 8:00:40 hours on April 12, 2015 she sent a message indicating that: “Bro i don’t know who you are”. Ms. Bailey-Johnson sent another message nine seconds later stating: “Therefore please stop messaging me”.
43A third message sent approximately two seconds later stated: “Okay am just going to leave”.
44It is doubtful that Ms. Bailey-Johnson would have responded in such a dismissive manner if she believed that the source of these messages was one of the “jet ski” males in light of her testimony that she was fearful that the men would harm her mother and friends if she did not carry out their instructions.
45For the above reasons, I do not believe Ms. Bailey-Johnson’s account of having imported cocaine into Canada under duress. I conclude that her evidence does not raise a reasonable doubt in the Crown’s case.
46If I had concluded that the males had indeed assaulted and threatened Ms. Bailey-Johnson and Ms. Vassell, I would have had to consider whether or not the accused had a safe means of escape but failed to avail themselves of it. I would have had to consider whether a reasonable person, who shared the personal characteristics of Ms. Bailey-Johnson and Ms. Vassell and who found themselves in a similar situation, would have reported the matter to the authorities.
47In April 2015, Ms. Bailey-Johnson was 22 years old and Ms. Vassell was 21 years old. Both are slightly built. They have been friends for a long time. Neither had been to St. Lucia before. Ms. Bailey-Johnson believed as did her father that the authorities in St. Lucia were corrupt.
48Arguably, a reasonable person, with similar personal characteristics as Ms. Bailey-Johnson, who strongly believes that the authorities in an area are corrupt, may not have reported the alleged sexual assault to those authorities. That said, a reasonable person nurtured in Canada and one who possessed the education and work experience of Ms. Bailey-Johnson, would have had no such difficulty reporting the assault to Canadian officials.
49Ms. Bailey-Johnson is a graduate of the University of Toronto. She did some training as a Canada Border Services Officer and worked at a private company. I find it unrealistic that Ms. Bailey-Johnson would have believed reporting the matter to the Canadian authorities would have resulted in harm to her mother.
50Ms. Bailey-Johnson did not seek any assistance from the crew of the airplane on which she travelled to Canada, from CBSA officers, or from the RCMP officers who re-arrested her. Neither did she call her father who testified that he spoke to his daughter every day and that he had a great relationship with her. Her father also testified in cross-examination that based on his strong relationship with his daughter he would have expected his daughter to contact him for help. She never did.
51I should note that there was no evidence from Ms. Vassell that she similarly feared for her life on account of what had allegedly happened to her. Even if I concluded that she similarly feared for the life of her boyfriend, I would have concluded that there was a safe avenue of escape which she failed to take advantage of.
CONCLUSION
52For the above reasons, I conclude that the Crown has proven beyond a reasonable doubt that Ms. Bailey-Johnson and Ms. Vassell did not act under duress when they imported cocaine into Canada on April 12, 2015. Accordingly, they are convicted of the offence charged.
André J.
Released: December 1, 2017
CITATION: R. v. Bailey-Johnson, 2017 ONSC 7199
COURT FILE NO.: CR 16-1620-00
DATE: 20171201
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ANNA-KAY BAILEY-JOHNSON and ROCHELLE VASSELL
REASONS FOR JUDGMENT
André J.
Released: December 1, 2017