COURT FILE NO.: 1876/16
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
James Clark, for the Crown
- and -
GREG MCLAREN GUTHRIE and
Paul M. Cooper and Lalitha Ramachandran for Greg Guthrie
DELON TERRY GRIFFITH
Steven Stauffer for Delon Griffith
HEARD: April 10, 11, 12, 13, 18, 19, 20, 24, 25, 26, 27, 28 May 1, 2, 3, 4, 5, 8,9,10,11,12 June 1, 12, 20, 21 August 10 September 7, 8, December 8, 2017
REASONS FOR JUDGMENT
Fragomeni J.
The Indictment
[1] Greg McLaren Guthrie (Guthrie) and Delon Terry Griffith (Griffith) are charged with the following counts:
That Greg Guthrie, on our about the 6th day of March in the year 2014, at the City of Mississauga, in the Province of Ontario, did import into Canada a substance included in Schedule 1 of the Controlled Drugs and Substances Act to wit: cocaine, contrary to Section 6(1) of the said Act.
And further that Greg Guthrie and Delon Griffith, on our about the 25th day of May in the year 2014, at the City of Mississauga, in the Province of Ontario, did import into Canada a substance included in Schedule I of the Controlled Drugs and Substances Act to wit: cocaine, contrary to Section 6(1) of the said Act.
And further that Greg Guthrie and Delon Griffith between May 1, 2014 and May 25, 2014, at the City of Mississauga and elsewhere in the Province of Ontario, and in the country of Trinidad and Tobago, did conspire together to commit an indictable offence, namely, importing into Canada a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to section 6(1) of the said Act, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code.
And further that Greg Guthrie, on or about the 27th day of October in the year 2014, at the City of Mississauga, in the Province of Ontario, did import into Canada a substance included in Schedule 1 of the Controlled Drugs and Substances Act to wit: cocaine, contrary to Section 6(1) of the said Act.
Overview
[2] It is useful and informative to set out a brief overview of the Crown’s theory of the case as it provides a context for the review of the trial evidence and discussion that follows in the analysis of the issues to be determined by the court.
Count 1: March 6, 2014
[3] Annecia Morris, travelling with her children, imported 40 kilograms of cocaine into Canada. Annecia Morris identified Guthrie as the person who arranged her travel. While in Trinidad, Guthrie took her bags away and returned them to her containing the cocaine.
[4] Two fingerprints matching Guthrie were found within Morris’ bags, on panels facing the cocaine.
[5] Morris identified a “Melissa” as Guthrie’s driver. On a Blackberry device seized from Guthrie’s home there was a conversation with a “Mel4”. This conversation took place on March 6 and 7, 2014, shortly after Morris and her children arrived in Toronto.
Counts 2 and 3: May 25, 2014
[6] Mr. James Gibb provides the primary evidence on these counts. Gibb identified both Guthrie and Griffith as the persons responsible for the cocaine found in his bags. On May 25, 2014 while returning to Canada, Gibb and his girlfriend, Jennifer Lucchetti, transported 20 kilograms of cocaine into Canada.
[7] According to Gibb, Guthrie was in Port of Spain at the relevant time. Guthrie was the person who removed his bags from the hotel in Trinidad and returned them with noticeable bulges.
[8] Gibb had contacts in his phone under the names “Terri” and “Big Mac”, who were people he said organized the shipments. The Crown’s theory is that Guthrie is Big Mac and Griffith is Terri.
Count 4: October 27, 2014
[9] Thirty kilograms of cocaine were seized from the bags of Pamela Grey and her travelling companions, spread throughout eight bags.
[10] The bags containing the cocaine had ten separate fingerprints that all matched Guthrie. These fingerprints were primarily on the panels facing the cocaine.
[11] Guthrie was at Pearson when Pamela Grey arrived. He has search information on his phone about her arrival.
[12] A search relating to Grey’s stay in Grenada at the Rex resort was found on Guthrie’s computer.
Trial Evidence
[13] With this brief overview of the Crown’s theory, I will review some of the trial evidence with respect to each count.
Count 1 – Importing March 6, 2014
[14] On March 6, 2014 at about 9:00 p.m., Canadian Border Services Agency (“CBSA”) Officer Kevin Dixon noticed a bulge on a suitcase being taken off a flight from Port of Spain, Trinidad.
[15] Officer Dixon and Officer Biloski identified this bag and several more bags that were all brought into Canada by Annecia Morris and her children. The bags contained cocaine and Ms. Morris was arrested accordingly.
[16] A total of eight bags were seized. At 12:05 a.m. on March 7, 2014 Officer Dixon turned the bags over to RCMP Cst. Hugues Dionne. Dionne transferred the bags to the RCMP Airport Detachment.
[17] On March 17 and 18 Cst. Dionne and Marta Hyrciuk processed the bags and the cocaine located in the bags.
[18] Each of the bags had a black package concealed within the lining. The cocaine was held in clear food saver bags and wrapped in carbon paper.
[19] Each of the eight bags contained four to five kilograms of cocaine for a total of 40.683 kilograms.
[20] While Marta Hyrciuk processed the bags for fingerprints, she maintained the bags secured within her own temporary lockers.
[21] Hyrciuk located an impression that she marked as impression R1 in suitcase #1 on a layer of plastic immediately facing a package with 5.459 kilograms of cocaine. Impression R6 in suitcase #4, was found immediately facing a package of 4.402 kilograms of cocaine.
[22] Hyrciuk photographed and enhanced the impressions before providing them to RCMP Officer Sgt. Tom Scarlett.
[23] Sgt. Scarlett compared those prints to a C216 fingerprint form with the name Greg Malcolm Guthrie: He also used the ACE-V method to conduct a ridge to ridge comparison. Sgt. Scarlett set out the following conclusion:
I concluded that fingerprint impressions that Marta Hryciuk located, there was two of them. One was labelled as R1 fingerprint impression and I concluded it was made by the same finger that made the impressions on that fingerprint form, specifically the left ring finger. And the other fingerprint impression labelled R6 was made by the same finger, that left the impression on that fingerprint form and specifically, the left middle finger.
The ACE-V method consists of the following:
A - Analysis of the unknown friction ridge
C - Comparison of the unknown friction ridge print to the known control inked friction ridge
E - Evaluation as to the sufficiency of detail present to establish individualization
V – Verification occurs when another qualified examiner verifies the process used, inspects the observations made and validates the conclusions reached.
[24] After Guthrie was arrested and fingerprinted following the October 2014 importation by Pamela Grey, Sgt. Scarlett retrieved the C 216 form produced by Border Services Officer Elliot when he fingerprinted Guthrie. Sgt. Scarlett again concluded that this updated C 216 matched R1 and R6.
[25] The police executed a search warrant at Guthrie’s residence after his arrest on October 29, 2014 at 202-123 Twenty-Fourth Street, Toronto, Ontario. One of the items located was a Blackberry Bold. Corporal Chris Lonnee, a technical expert with the RCMP, examined this device and located a text message between the user of this device and 1-868-314-4721 assigned to “Mel4”. The following conversation took place on March 6 and 7, 2014 shortly after Annecia Morris and her children arrived in Toronto:
Sender
Message
Blackberry
We need to av a serious meeting I don’t like wats going on if things don’t change we cud go back to wen u guys drive my people or myself anywhere ill pay u on da spot too much missap n I don’t like
wat time was da last last girl flight
Mel4
At 2:00pm she checked in at 12:00 pm
Did u hear from any of Dem?
Y aren’t u saying anything is everything ok?
Blackberry
Ill link u later
Mel4
OK
Morning did the women and children get in ok?
Blackberry
I don’t know
Mel4
Wdf, can u call and find out or something
Sorry for being so concern
Blackberry
Don’t be concrn n don’t worry abt it leave it alone if everything good ill let you know so don’t ask over da phone anymore thanks
[26] Annecia Morris testified at the trial of this matter. She stated that the trip to Port of Spain was arranged and set up by Guthrie. She testified that Guthrie provided her with the suitcases in Canada. Guthrie told her something might be in two of the bags while the other six were camouflage.
[27] Ms. Morris testified that while she was in Trinidad she met Guthrie’s driver, Melissa. Also while in Trinidad, Guthrie came and retrieved all of her suitcases. He later returned all eight suitcases to her and these were the suitcases she returned to Canada with.
[28] Ms. Morris confirmed in cross-examination that:
“it was Greg Guthrie who sent me to Trinidad, it was Greg Guthrie who bought my ticket and it was Greg Guthrie that let me know that it was him that put drugs in my bag.”
[29] Ms. Morris testified that she knew Guthrie as “bull” or “bulldog”. A photograph of Guthrie found on his computer shows a tattoo, “Bulldog”, on Guthrie.
[30] In cross-examination by the defence, the evidence supporting this count was seriously challenged.
[31] Guthrie points to numerous areas in the evidence that he says undermines the strength of the Crown’s case on this count. The defence position is that Guthrie was not involved in this importation on March 6, 2014, did not arrange for Morris to be a courier, and did not meet her in Port of Spain.
[32] The defence submits that Ms. Morris’ testimony is not credible nor is it reliable. Ms. Morris has a motive to fabricate her evidence with a view to protecting the Brissett family, to whom she is related. The trial testimony clearly establishes that the Brissetts were involved in the drug trade. Ms. Morris herself has charges before the court and has testified in the manner she did to gain favourable treatment by the police, Crown, and eventually the court.
Continuity of Exhibits
[33] Cst. Dionne seized the suitcases from Ms. Morris at the airport on March 6, 2014. On March 15, 2014 he placed the suitcases into temporary lockers (TL) 93, 98 and 126. On March 17, 2014 he took suitcases out of TLs 93, 98 and 129 to process them. Cst. Dionne could not provide an explanation for the discrepancy in locker numbers from 126 to 129.
[34] The defence submits that this loss of continuity compromises the integrity of the fingerprint evidence found.
[35] The Crown argues that this minor misprint in Cst. Dionne’s notes is not significant. Cst. Dionne stated that bag #8 was placed in TL 126 but retrieved from TL 129. The Crown suggests this is just a misprint.
[36] The Crown also points out that the testimony of Cst. Dionne confirms that the fingerprints were not located in bag #8. The fingerprinted bags were taken from and returned to the same TL.
Brissett Connection
[37] Ms. Morris confirmed that she is directly related to the Brissett family. Bernard and Everald Brissett were targets of surveillance during the course of the police investigation relating to the drug trade.
[38] Bernard Brissett is the owner of 72 Montebello Avenue. A video surveillance camera was set up to capture the movements at the house on a 24 hour cycle. Ms. Morris’ friend, Renee, is intimately involved with Everald Brissett.
[39] Ms. Morris testified about the purpose of her trip and who was initially involved in that process. It is informative to set out some of the details of her testimony in that regard. The following exchange is relevant:
Q. And you said that he was the one who paid for your trip. How did the idea of this trip start?
A. It started with Carnival, I believe it was in September. Other friends, as well as Greg Guthrie and myself, we were planning on going for Carnival.
Q. And that was in – in Trinidad?
A. Yes.
Q. And so the original that – the purpose of the trip was – was to go to Carnival. Did the purpose of the trip ever change?
A. Yes, it did.
Q. When – when was that?
A. I believe it was after I came back from Jamaica, sometime in January of 2014 or prior to that, yes, prior to that.
Q. And what changed?
A. Most of the people that was supposed to go on the trip had got into a bit of problem on their own, so I guess they won’t be able to travel. And that’s when I met with Greg Guthrie a few times. Actually, he called me before we had met. And I remember when we meet, I didn’t really want to go on the trip anymore, because everybody that I knew wasn’t going anymore.
Q. Okay. So you said that they got into trouble. What kind of – what do you mean by that?
A. I guess their house had got the door kicked in or raided or something of that sort.
Q. And who were these people?
A. It would have been Bernard Brissett.
MR. COOPER: I couldn’t hear her. Sorry, Your Honour.
THE COURT: Okay. Could you just speak up a bit? That was Bernard Brissett?
A. Yes. Bernard Brissett. And I remember Renee was supposed to also go. A few other girls, I’m not quite sure what their name was at the time was supposed to go. I just know their first name that was supposed to go, but they didn’t end up going.
MR. CLARK: Q. Okay. So you indicated that Mr. Guthrie called you?
A. Yes, he did. He called me, I believe it was in January some time, I’m not quite sure of the date itself that he had called. And he wanted to know if I was still going to Trinidad. But I figure because everybody had got in trouble, that it would have been off.
[40] It is important to note that Bernard and Everald Brissett were arrested on January 24, 2014.
[41] The defence suggests, therefore, that it was after the people she was supposed to go with got into trouble that she met Guthrie. This would put the meeting with Guthrie after January 24, 2014. With respect to when she received the suitcases from Guthrie she stated the following:
Q. Okay. I want to ask about – about questions about the – the suitcases. How many did you take with you?
A. I take eight suitcases.
Q. And where did you get them from?
A. Greg Guthrie had got them for me.
Q. Was that to your home?
A. Yes.
Q. Do you remember when that was?
A. It was sometime in January, a little bit in, I believe no, I can’t specify on exactly the…
Q. Okay.
A. But it was before I – I left.
[42] The information recorded on Guthrie’s passport and PAXIS traveller query has him in Bermuda from January 21, 2014 to January 30, 2014.
Ms. Morris Testimony re: suitcases while in Trinidad
[43] Ms. Morris testified that while in Trinidad Guthrie took her suitcases on the second day of her trip and he returned them to her the night before she left Trinidad, that is March 5, 2014. The following exchange is relevant on this point:
MR. COOPER: Q. And with respect, you look at Greg eye to eye?
A. Eye to eye, yes I did.
Q. At Sam’s…
A. At Sam’s Guest House, I looked Greg Guthrie eye to eye when he give me back the bags, just like I’m looking at you now, so does my kids saw him too. All my kids saw when he brought the bags back, they saw when he took the bags and they asked him, where are you going with our luggage. He said to fix the wheel.
Q. Right. And he brings them back and you look at him eye to eye like we are…
A. Yes.
Q. …we’re two and a half feet away…
A. Yes, I did.
Q. ...and you’re having a conversation with him…
A. Yes, I did. And he asked me for a knife and he went down to like, the room and then they were talking and then he came back, he gave me the knife and left yes, sir.
Q. And like you associate Boxing Day to a date you return from Jamaica, correct?
A. I did got back in Boxing Day, the 26th of December, I did got back.
Q. Similarly, you associate the day before you leave at night time with this conversation eye to eye with Greg, correct?
A. Yes, sir. I saw Greg the night before I left Trinidad, yes, I did.
[44] The travel records associated with Guthrie indicate that Guthrie was already in Toronto on March 5, 2014. The PAXIS traveller query shows that he arrived in Toronto on March 5, 2014 at 11:55 a.m.
[45] The Crown argues that Ms. Morris apparently erred as to the March 5, 2014 night that Guthrie returned the bags to her in Trinidad, the night before she returned to Canada. The Crown asks the court to find that this was not a deliberate lie but rather an honest error attributed to her memory after three years had passed.
Ms. Morris’ Statement to Police on March 6, 2014 after her arrest
[46] Exhibit 90 is an Agreed Statement of Facts regarding Detective Cst. Smith. It sets out the following:
Detective Constable (D/C) Smith is a member of the YYZ Airport Intelligence Unit.
On March 6, 2014, Annecia Morris was arrested at Toronto Pearson International Airport for importation. She was taken to Terminal 3 cells.
At 21:36 D/C Smith entered Morris’ cell with D/C Henderson. Morris was cautioned. Morris advised that she had travelled to Trinidad with her friends. She mentioned the names Renee, Melissa, Lexi and Kenny. D/C Smith noted, “Morris very scared, didn’t want to talk about Kenny, upset/crying.”
At 22:45, D/C Smith returned to Morris’ cell to speak to her. Morris mentioned Renee and Kenny again. D/C Smith left the cells at 23:06.
D/C Smith returned to cells to speak to Morris again. Morris spoke about Renee’s involvement in the importation. D/C Smith left the cells at 23:35.
At 23:50, Morris requested to speak to D/C Smith. They discussed her options. D/C Smith indicated that Children’s Aid Society (CAS) was now involved.
At 00:50 D/C Smith spoke to Morris’ mother, Yvonne Chisholm. D/C Smith noted, “She advised she would get answers. Bulldog-Greg. That her daughter wasn’t going to jail, also advised Kenny was from here and arranged luggages”. CAS had made the decision to leave Morris’ children in the care of Chisholm.
At 01:00, D/C Smith returned to cells to speak with Morris. D/C Smith noted, “Advised her that her mother was here. Bulldog-Greg. Also advised that mom told us Kenny was from here, made arrangement baggage”. Morris replied, “My mom told you? I’m ready to talk.”
At 01:19, D/C Smith returned to Morris’ cell with Intelligence Officer Luthra. Morris advised that Bulldog orchestrated the whole thing. Morris claimed that Bulldog paid for the plane tickets, sent her the suitcases and arranged accommodation in Trinidad. Morris mentioned the names Renee, Kenny, Melissa again as people also involved in the importation. Lexi was suggested to be another drug mule.
At no point prior to 01:19 did Morris mention the names Greg or Bulldog.
At 02:00, the Royal Canadian Mounted Police arrived and the interview was interrupted. Arrangements were made to take a formal video statement from Morris
The defence points out that at no time prior to 1:19 did Morris mention the names Greg or Bulldog. At 21:36 she talked about Renee, Melissa, Lexi and Kenny. She was scared and didn’t want to talk about Kenny.
Fingerprint Evidence
[47] The defence submits that Marta Hyrciuk’s evidence regarding the AFIS results cannot be relied on for the truth of their contents. It could only be used by the court as part of her narrative. Hryciuk sent the fingerprint impression to AFIS and received back a report. The Crown did not tender the AFIS reports into evidence.
[48] The defence also argues that Hryciuk testified that she was unaware of whether the extra piece of plastic, that is the false bottom, was part of the original suitcase.
[49] The Crown submits that Sgt. Scarlett’s expert evidence should be accepted. He has extensive experience. He manages the Forensic Identification Services section and has been comparing prints since 2008. He has conducted thousands of comparisons. At the RCMP making an error with respect to a single fingerprint could cause an examiner to lose his job. He explained why the apparent scar on Guthrie’s finger was not used in his analysis: that part of the finger was not in the latent print left on the suitcase.
[50] The defence, on the other hand, submits the following with respect to Sgt. Scarlett’s findings:
Confirmation bias should be a serious concern to the court. Sgt. Scarlett was advised of the AFIS match prior to doing his analysis and this knowledge may have shaped and influenced his own conclusions.
Sgt. Scarlett testified that the C216 form to be used to perform his comparison contained the name Greg Malcolm Guthrie. Guthrie’s middle name is McLaren not Malcolm.
The fingerprint may have been on the suitcases as a result of innocent reasons, through the manufacturing process or at retail stores where multiple people handle the material. Fingerprints cannot be dated.
In total, 14 fingerprints were located on the suitcases and, of these prints, only two may have originated from Guthrie. The remaining 12 prints were search negative or were outstanding. The defence points to this evidence to argue that there is no way of knowing when or how many people handled the material.
[51] With those positions set out by the Crown and Guthrie it is important to set out in some detail the trial testimony of Sgt. Scarlett.
The C216 form
Q. Okay. The – the C 216 fingerprint form, what – what information is contained on the – on the copy of that form that you receive?
A. The original one that Ottawa emailed me is – is very generic. The only information on the form is a name and a date of birth.
Q. And what was the name and the date of birth on that form?
A. The surname is Guthrie, given one was Greg and given two was Malcolm. The date of birth was 1973, January 30th.
Q. And you indicated that you were asked to do a comparison between the latent fingerprints and the prints on that 216 form?
A. Yes, I was.
Q. And what conclusion did you reach?
A. After I completed the comparison process, I concluded that fingerprint impressions that Marta Hryciuk located, there was two of them. One was labelled as R1 fingerprint impression and I concluded it was made by the same finger that made the impressions on that fingerprint form, specifically, the left ring finger. And the other fingerprint impression labelled R6 was made by the same finger, that left the impression on that fingerprint form and specifically, the left middle finger.
Q. And I understand that you prepared a report to – to illustrate the process of how you came to that conclusion?
A. Yes, I did.
The Standard re: the Analysis:
Q. And how many – you’ve told us before during the voir dire, which is now evidence on this trial, that there’s no standard as to how many there has to be before you can make a match, correct?
A. That’s correct.
Q. And here, out of all of them, you have two circled, correct? You see bifurcations or spurs?
A. And ridge endings.
Q. And ridge endings, so three out of six?
A. That’s correct.
Q. Fifty percent.
THE COURT: Sorry. You’re looking at something. Do I have that in front of me?
MR. COOPER: No, you don’t, Your Honour.
THE COURT: Okay.
MR. COOPER: Q. So, of the six things you’re looking for, you get fifty percent, correct?
There’s…
Q. You get half of them?
A. There’s those types of major ridge path deviations present, yes.
Q. Well you get – you get three out of six. You don’t get all six?
A. That’s correct.
Q. …we’ve established that? And then with respect to clarity at level three, you’re looking for pores, ridge units, scars, correct?
A. That’s correct.
Q. Do you get any of them?
A. There’s very little, no.
Q. Well, do you get any of them?
A. I – I didn’t’.
Q. ‘Cause I see you’ve circled none.
A. I didn’t mark down any, no.
Q. Okay. So you got none…
A. That’s correct.
Q. ...right? And what’s – again, there’s no standard, that you should have a certain amount of clarity in level three, correct?
A. That’s correct.
Q. Okay. There’s movement always in fingerprints, you indicated?
A. Most – the majority of the time, yes.
Q. Okay. So from R6, what you’re dealing with, you believe that you find a match to a person named Greg Malcolm Guthrie, correct, yes?
A. That’s correct.
Q. Okay. And then somebody else goes to do the verification, correct?
A. That’s correct.
Q. And the person that goes – does the verification is told that you’ve made a match, correct?
A. That is correct.
Q. They’ve told which finger you’ve matched, correct?
A. That is correct.
Q. So it’s not as if they’re doing a blind study at all, in a blind study manner, correct?
A. That is correct.
The AFIS Match:
Q. Okay. And of all the prints that you were given, only R1 and R6 are you here to opine on, right, give an opinion on?
A. That is correct.
Q. Okay. When AFIS indicates that there’s a potential match, I understand that it can indicate that its more than one individual. Fair to say?
A. In some cases, it could.
Q. Okay. Do you know if that was the case here?
A. I do not.
Q. So I understand that you may have done some verification as well on a different file. Is that correct?
A. I have, yes.
Q. But you haven’t testified to that today, or have you?
A. I have not yet, no.
Re: The fingerprint
Q. I’m showing you Exhibit 73 where we have the unknown. Can you assist us with what percentage of the actual fingerprint is displayed on this – in this red square of the unknown?
A. I cannot, Your Honour.
Q. And so you’d agree with me, that in the portion of the fingerprint that you’re comparing, the unknown to the known, you don’t see any differences, right?
A. I don’t see any unexplainable differences.
Q. Right. But you can’t really assist us with what other part to the fingerprint the unknown – you don’t know what the proportion is of whether you’re saying its five percent or two percent of the actual fingerprint or a hundred percent, so you could actually be only seeing minuscule amount of the fingerprint in the unknown, which you’re comparing to the known, correct?
A. That’s correct. I cannot give you a percentage number of how much is present.
Q. Right. So it could be as little as one percent of the actual fingerprint we’re looking at here. Is that correct?
A. I would definitely not say its one percent. I can tell you that much from looking at it…
Q. All right.
A. …and from my experience.
Q. All right. So all you can tell us is that its more than one percent. Is that correct?
A. Yes. Its more than one percent.
Q. All right. And so when you’re looking for differences, you’re only dealing with a small proportion of the fingerprint, when you compare the known to the unknown, so there could be many differences that aren’t shown – or just that are present, but not shown, only because what we’re looking at is a very small percentage of the actual fingerprint, correct?
A. Yes, Your Honour. I cannot comment on what isn’t available to compare.
Q. Right. And what is available to compare, is a very small part of the actual fingerprint?
A. It’s a portion of the actual fingerprint, yes.
Q. We don’t know that the fingerprint on the unknown, from the far left to the far right, is the entire width of the fingerprint, correct?
A. No, I cannot.
Q. So again, there could be other differences between the unknown and the known, they’re just not shown, because the fingerprint in the unknown isn’t the entire width of the person’s actual finger, correct?
A. I cannot comment if there’s differences or not, it’s not there.
Q. And you agree with me, as you look at the unknown, you don’t’ see a scar, do you?
A. There’s no obvious scarring, no.
MR. STAUFFER: Your Honour, I’m going to ask that Sergeant Scarlett look at Mr. Guthrie’s fingers. Are you okay with doing that?
THE COURT: Sorry. Which fingers are you asking to look at?
MR. STAUFFER: The ring and middle of the left hand – his left hand.
THE COURT: Ring and middle of the left hand, okay.
A. May I grab that fingerprint, Your Honour, and magnifying glass?
THE COURT: If you wish.
COURTROOM RGISTRAR: Exhibit 33.
THE COURT: No. No, no.
A. No. I have a magnifying glass.
THE COURT: Okay. Any problems with that, Mr. Stauffer?
MR. STAUFFER: No, Your Honour.
THE COURT: Okay. No. I just don’t want any discussion between them…
MR. STAUFFER: Yes, Your Honour.
THE COURT: …so I’ll just ask you not to say anything, okay.
MR. STAUFFER: Q. Well I do have a question. Do you see a scar on either of those fingers?
A. I can visibly see a scar on the tip ridge of the middle finger.
Q. You can?
A. Yes. Which isn’t in the latent print.
THE COURT: I’m sorry, the finger again?
A. The middle finger.
THE COURT: The middle…
MR. STAUFFER: …of the left.
THE COURT: And where did you say you saw it, the tip?
A. At the very tip of the finger.
THE COURT: Okay.
MR. STAUFFER: Q. And the ring finger?
A. There appears to be a scar in the left portion of the ring finger.
THE COURT: Okay.
Q. Yeah. Maybe just because I didn’t understand. You indicated something about – was the scar – is the scar present on the 216 or any scar – is any scar present on the 216 forms?
A. The left ring finger scar was present.
Q. Okay.
A. However, the tip ridge scar on the left middle is not visible. Mostly likely because that part wasn’t duplicated, because it wasn’t scanned on the process of the finger – the fingerprint scarring.
Q. Okay.
A. It was right at the very tip ridge.
Counts 2 and 3 May 25, 2014 Importing and Conspiracy to Import
[52] On May 25, 2014 James Gibb and his girlfriend Jennifer Lucchetti arrived at Pearson Airport in Toronto on West Jet flight number 2773 from Port of Spain, Trinidad.
[53] The bags they had contained cocaine and they were subsequently arrested. Border Service Officers Schrock and Miller noticed bulges in their bags. After inspecting the bags, Gibb and Lucchetti were arrested for importing a controlled substance into Canada.
[54] The seized bags were turned over to RCMP Constables Panzer and Choudhary.
[55] The packages seized from the bags were in black wrapping paper which covered transparent plastic bags.
[56] The total weight of the cocaine seized was 18.002 kilograms.
Trial Testimony of Gibb
[57] Gibb testified that he believed his trip to Port of Spain was for the purpose of transporting money from Port of Spain. He was initially in contact with Webster, an acquaintance whom, he knew as De Marco or De Carlo.
[58] De Carlo found out that Gibb was not working so he told Gibb he had a job for him and set up a meeting with Terry. This meeting with De Carlo occurred in early April or just at the end of March 2014. De Carlo told Gibb there was a guy who had money that he needed to get to Canada and that Gibb should meet with him.
[59] Gibb did meet Terry and they spoke about Terry having $75,000 he had to get to Canada. Gibb would be paid $8,000. At this meeting Gibb did not agree to do the job.
[60] A second meeting took place with Terry about a week later. At this meeting Terry offered to pay Gibb $10,000. Gibb had still not agreed to do the job. He was not interested.
[61] Terry would continue to text or call Gibb again tempting him to go. Everything would be paid for and Gibb could bring his girlfriend. The offer was increased to $15,000.
[62] Gibb agreed to go after he met a second person known as Mac. Mac seemed to be the one in control. Gibb described Terry as a “goof”.
[63] Mac contacted Gibb and a meeting was arranged with Gibb at House of da Jerk restaurant on Rexdale Boulevard. Mac attempted to persuade Gibb to find friends to go with him. Mac said if four people could go, Gibb would receive $45,000. Gibb initially said no but then agreed to go.
[64] Gibb received money from Mac to pay for Lucchetti’s passport as she did not have one.
[65] Gibb was expected to be on vacation and bring money back to Canada for Mac. In all there were three meetings with Mac. The first meeting was at a Loblaw’s on Burnhamthorpe off the highway. The second meeting was at the House of da Jerk.
[66] Gibb testified that Terry booked the airline tickets. Gibb gave Terry the information and he received the tickets from him.
[67] The hotel was booked by Gibb and Lucchetti on line using her credit card. Terry provided the money for the hotel.
[68] The suitcases for their trip were provided by Terry at a McDonald’s off Queen and Highway 27. Gibb, Terry and Jennifer were all present.
[69] At no time during his meetings with Terry or Mac were drugs ever mentioned.
In Trinidad
[70] Gibb met Mac when he landed. Mac took Gibb and Jennifer to the hotel. Gibb stated in examination-in-chief:
Q. And what happened when you got there, at the hotel?
A. We went to the room. Mac and his driver brought the bags into the room, placed the bags in the room and then shortly thereafter, came back to pick up the bags – asked us to empty the bags, sorry. Shortly thereafter, he came to pick up the bags.
Q. So who was it exactly, that came back to pick up the bags?
A. Mac.
Q. Was he alone?
A. Yes. Yes.
Q. And so when he came back, did he get all of your bags?
A. Yes.
Q. And was that your understanding of – prior to him coming to get those bags was that your understanding of what was going to happen?
A. No.
Q. What was your understanding?
A. Understanding was that I would be the one that would carry the money.
Q. So were you surprised when he asked for…
A. Yeah.
Q. …came for all the bags?
A. …yeah, I was.
Q. And did you say anything about that?
A. No. At that point, I was in a foreign place and I didn’t have much that I could say or felt that I could say.
Q. And did the bags return at some point?
A. The bags were returned the same day, a few hours later.
Q. And who brought the bags back?
A. Mac, again.
[71] Mac always had a female driver with him by the name of Melissa.
[72] When the bags were returned to them they all had a bulge in the back. He assumed it was the money.
[73] Gibb testified that he and Jennifer had four bags. Two large suitcases were taken. The final time Mac saw Gibb, Mac gave him a few hundred dollars and said he was leaving to go to Grenada.
[74] Upon their return to Pearson, Mac was constantly calling Gibb’s phone. Gibb spoke to him once.
[75] After Gibb was arrested he made a statement to the police on May 25, 2014, the same day.
[76] Gibb was asked to do a photo line-up in relation to the person he knew as Mac. This was done on July 30, 2015. The features Gibb remembers are his eyes, his jaw line, his hair, his earrings, the basic expression he had on his face and just how big he was. Exhibit 13 is the photo line-up relating to Mac. Exhibit 14 is the photo line-up relating to Terry.
[77] Gibb testified that no one has promised him anything for his testimony and he has never sought anything in exchange for his testimony.
[78] The Crown submits that Gibb’s evidence ought to be accepted as it is corroborated by the following:
Contacts on Gibb’s phone. Gibb’s phone number at the time was 998-1189. Officer Lonnee who examined this phone located contacts with “Big Mac” and “Terry”.
Guthrie was in Trinidad at the relevant time
Gibb described Mac’s driver as Melissa
A text message found on Guthrie’s phone shows a conversation with Mel4.
Lucchetti also testified to meeting a Melissa in Trinidad
Mac told Gibb he was leaving for Grenada. In October 2014 a shipment of cocaine coming from Grenada is seized at Pearson with Guthrie’s fingerprints located on the suitcase
Drug related material was seized from Guthrie’s residence
Gibb picked both Guthrie and Griffith out of photo line-ups
Cross-examination by Guthrie
[79] Gibb described Mac, with reference to his May 28, 2014 statement to police, as follows:
Q. Okay. You agree with me, that notwithstanding you tell us under oath today, that you’d know everything and everything – anything and everything about Mac’s description, you never gave a detailed description to police, correct?
A. Correct.
Q. Do you have your statement of the 28th of May with you, 2014?
A. I do.
THE COURT: Sorry, 28th?
MR. COOPER: May 28th of 2014.
Q. Do you have it with you?
A. I do.
Q. Okay. Turn to page 21 and follow along as I read, sir, at line 901, what’s attributed to you is, “Um, the main guy um, then he seemed to be a goof and I – I was transferred to this smooth talking big Mac, um, Big Mac, large guy, easily a half a foot taller than myself, um very large and easily three – in a 300 pound range, many tattoos on arms, um, African American skin, short hair, um, he played the – he played the character of Mister Nice Guy, um. Mister, I’ll make you a millionaire.” Were you able to read along with me?
[80] Gibb stated he was five foot ten. Guthrie’s driver’s licence has his height listed at approximately five foot ten inches (178 cm).
[81] When pressed further about Big Mac’s height, Gibb stated this:
Q. You said easily a half foot taller than me, correct?
A. Correct.
Q. That’s at least six inches, isn’t it, sir?
A. It certainly is.
[82] On this point Lucchetti testified that this person was a lot taller than Gibb.
[83] Gibb made no mention of Guthrie’s large three inch scar on the left side of his cheek he has had since he was four years old.
[84] During the photo line-up, no mention is made of pock marks on Guthrie’s face.
[85] Gibb was inconsistent with who gave him the $1,400 to cover expenses. In his first May 25, 2014 statement he said they gave him the money. At the October 6, 2016 preliminary hearing he said Big Mac gave him the money.
[86] Gibb stated at trial he met Big Mac the first time at a Loblaw’s at Burnhamthorpe and Highway 427. At the Preliminary Hearing he said it was at Islington and Highway 400.
[87] While in Trinidad Guthrie checked in on Gibb and Lucchetti and went swimming in the pool. The following exchange is relevant on this point in cross-examination:
Q. During your statement, do you recall telling the investigator, that this Mac or Big Mac was – came to your hotel room and went swimming?
A. Yeah. No, I don’t recall saying that he went swimming or not. But I do recall telling them that he came to the hotel room.
Q. Yeah. Do you remember him going swimming?
A. Yeah – no, now that you bring it to my attention, yeah.
Q. Yeah. I guess he’d be wearing bathing trunks, right?
A. No. He just took his shirt off and jumped in with what he had.
Q. Okay. So that way, I guess, you could see his arms?
A. Yeah.
Q. And you could see the tattoos going up his arms, right?
A. I could see them coming out of his shirt before.
Q. Okay. So where did the tattoos go from like, his wrists?
A. No. They were tricep, bicep.
Q. Okay. You’ve got to – ‘cause you pointed, I have an obligation to…
A. It was…
Q. Stop for a second. Hold on please.
A. Yeah. Go ahead. Sorry.
MR. COOPER: I’m not sure if Mr. Clark saw it, but the witness pointed to his left arm, in the area of his mid-arm…
THE COURT: His right – his right…
MR. COOPER: His right arm, sorry.
THE COURT: Your left side, his right side.
MR. COOPER: It’s the dyslexia.
THE COURT: We’ll help you out.
MR. COOPER: Thank you. I appreciate that.
Q. With your left arm, you pointed to your right arm, in mid-arm, as well, up to the shoulder. Is that fair to say?
A. I never indicated the shoulder. I just pointed quickly at the tricep area.
Q. Okay. So is that where the tattoos were?
A. To my recollection, yeah. They were along his – not on this exact arm specifically. I don’t recall which arm…
Q. Okay.
A. …at this point.
Q. But I imagine when this Big Mac took off his shirt, you had an opportunity to see the tattoos, right?
A. No. I’d seen them, like I said, under a sleeve of his shirt.
Q. Okay. And the tattoos you were able to see were on his arms?
A. Yeah. To my recollection, yeah.
[88] Exhibit 65 is a photo of Guthrie depicting tattoos over a substantial portion of his entire upper body, his back, his chest and along both arms.
[89] Gibb testified that Big Mac only took two of the four suitcases from their hotel. Lucchetti testified that all four were taken.
[90] Gibb testified that Terry bought and gave him the plane tickets and it was impossible for Lucchetti to have purchased the tickets. Lucchetti testified that she paid for both plane tickets on her credit card. On this point the following exchange is relevant with respect to Lucchetti’s evidence:
Q. Okay. And I understand that you purchased the ticket to go to Port of Spain…
A. Yes.
Q. Is that right? You purchased it on-line on your computer? Is that right?
A. I purchased it on-line. I don’t remember if it was my computer or not…
Q. Right.
A. …but I purchased it on-line.
Q. All right. And you’re able to – obviously, since you purchased it on-line, you printed it off on-line?
A. Yes.
Q. By it, I mean the tickets…
A. Yes.
Q. …you printed the tickets off, that’s how you got them?
A. Yes.
Q. One for yourself and one for James. Is that right?
A. Yes.
Q. And you paid for both on your credit card. Is that right?
A. Yes.
Q. Okay. And it cost about $900?
A. Yes.
Q. And you’re sure of the number? It might be 910, 915, but around 900?
A. Definitely under 1,000, for sure.
Q. Okay. And you know that, because you’re the one that purchased them, right?
A. Yes.
Q. And you’re the one who printed the tickets off, correct?
A. Yes.
Q. And you’re the one who had them in your possession, you gave James hi – his…
A. Yes.
Q. …his ticket as well? And I understand at the time that you purchased the tickets and was planning to go to Port of Spain, you needed to renew your passport or update your passport…
A. Yes.
Q. Is that correct? And so you went down to the passport office to do that, right?
A. Yes, I did.
Q. Right downtown Toronto?
A. I was working downtown at the time, so it was off of Victoria, yes, downtown.
Q. Okay. And you paid for that too?
A. Yes, I did.
[91] Lucchetti also testified that she gave her credit card to reception when they booked into the hotel in Port of Spain.
[92] Although Gibb testified that Lucchetti was present when they met Terry to get the suitcases, Lucchetti testified that she had never seen Griffith prior to this litigation.
[93] Gibb claimed that he never at any point thought that his trip had anything to do with drugs. However, he admitted to being offered a “kilo” by Big Mac in exchange for going on the trip.
[94] Gibb claimed that he did not know that what he was doing was wrong, yet he also told the police “I was going to assume any and all risk.”
[95] Gibb said that he would not lie for any reason, not even for money – however, he soon had to backtrack on that statement when he was confronted with the lie he told to the Bank of Montreal regarding a business in his name that did not exist and also about an incident where he used someone else’s credit card information to book a flight for someone for $50 on behalf of Richards.
[96] Gibb claimed that he felt sick and a chair had to be brought over to him after the NIK test was done on his suitcase at Pearson. However, Border Services Officer Matthew Schrock, the individual who performed the NIK test, testified that Gibb seemed controlled and did not make any utterances. Officer Schrock did not mention a chair being required.
[97] Gibb stated the reason he went on a drive with Constable Waite and Corporal Rennie was because he was “asked to identify a street and a home.” Constable Waite testified that it was Gibb who offered to point out a residence to police.
[98] Gibb stated that he testified at trial and gave statements to police of his own volition, and not in order to work out a deal for himself. However, Constable Waite testified that on January 29, 2015, Gibb’s lawyer had a conversation with him about what Gibb would get in return for doing a photo line-up.
[99] The photo line-up was done over a year after Gibb’s arrest.
[100] Gibb’s in-dock identification occurred when the only black individuals in court were the two accused.
[101] Gibb acknowledged in cross-examination that his dealings with BMO were not truthful. The following exchange is relevant in cross-examination on this point:
Q. Right. And in fact, you had no business, correct?
A. Correct.
Q. And when you did that, you misrepresented yourself to the bank, correct?
A. Correct.
Q. And you knew that was not truthful, correct?
A. I knew – no, I did not. I did not know that was not truthful. Because you’re – you’re catching me up on everything now.
Q. Sir…
A. You’re telling me…
Q. …it wasn’t your – it wasn’t your business. There was no business, was there?
A. No, there was no business.
Q. And when you opened…
A. I didn’t create a business.
Q. Right. Because there was no business. You had no business?
A. Correct.
Q. And when you go to the bank and you represented, I’m going to open this account for my business, that’s a lie, correct?
A. Yes.
[102] Gibb gave the following testimony regarding the improper use of the credit card:
Q. You also called on behalf of De Marco to book a flight for somebody, correct?
A. Correct.
Q. And you used somebody else’s credit card, correct?
A. I used information that was handed to me, but yeah.
Q. Did you use…
A. It was some…
Q. …your credit card?
A. No, sir I did not.
Q. Why – why is it hard for you not to say I used somebody else’s credit card? Why is it hard for you to say that? What are you trying to avoid?
A. I’m trying to avoid – I want direct – I want you to ask me questions and I will give you direct answers.
Q. Sir, did you use somebody else’s credit card?
A. Yes.
Q. Okay. I asked you that three questions ago, did you use somebody else’s credit card. And your answer was well, information was passed to me. Do you remember you saying that?
A. I used information. I didn’t have a physical card.
Q. Okay. You knew you were using somebody else’s credit card, right?
A. Yes
Q. It wasn’t – or – let’s just go back to well, I know what I was doing, maybe it’s a misdemeanour, maybe I – I just didn’t comprehend what I was doing at the time. Is that what you’re trying to say, is it?
A. What do you want me to say?
Q. The truth, sir?
A. That’s not a question though, sir.
Q. You called an airline, correct?
A. Correct.
Q. You posed as a different individual, correct?
A. Correct.
Q. You used somebody else’s credit card, correct?
A. Correct.
Q. You made reservations for people you didn’t even know, correct?
A. Correct.
Q. And you did so for fifty bucks?
A. Correct.
Count 4: Importing on October 27, 2014
[103] On October 27, 2014 into October 28, 2014 CBSA Officers Rooney and Wentzell were at the secondary examination desk at Terminal 1 Pearson Airport, Toronto. At about 12:40 a.m., Pamela Grey was directed to Officer Rooney’s desk. Officer Wentzell was dealing with Anita Miller, Grey’s travelling companion. They were returning to Canada from Grenada.
[104] Examination of the bags revealed black paper that was around a white mass, ultimately determined to be cocaine. The women were arrested and the bags were turned over to RCMP Officer Sean Huskinson. Cst MacDougall processed six bags he had control over in temporary exhibit lockers and six bags were filed as Exhibits at trial.
[105] Officer MacDougall and Marta Hyrciuk dismantled the bags. All six bags contained cocaine.
[106] All the cocaine was wrapped in black carbon paper over clear food saver bags covering the cocaine. The total weight of the cocaine was 30.027 kilograms.
[107] Hyrciuk processed the bags for prints. She found impression R3 in Exhibit 34 A. It was on an interior panel that was immediately facing a bag containing 5.602 kilograms of cocaine. Impression R9 was located on Exhibit 36 A where the 4.463 kilograms of cocaine was located. Impressions R 10 to R 18 were located on Exhibit 37, on a panel facing the drugs in a packaging with 4.503 kilograms of cocaine.
[108] Andrea MacLeod compared 19 prints and made 10 matches. The following chart sets out her conclusions:
Latent Print
Guthrie C 216
R3
Left thumb
R9
Left thumb
R10
Left ring
R 11
Left ring
R12
Left palm
R13
Left ring
R14
Left middle
R16
Left middle
R17
Left middle
R18
Left thumb
[109] RCMP Officer Jennifer Oliveros was in charge of a team assigned to surveil Guthrie. She was familiar with his appearance. She observed him in a taxi leaving the Holiday Inn on Dixon Road. Officer Oliveros followed him to Terminal 1 shortly before midnight on October 27, 2014. She lost him briefly but later found him in the international area.
[110] Officer Dale observed a taxi arrive at the Perkins family restaurant beside the Dixon Road Holiday Inn. He observed Guthrie get out and get into a GMC Yukon Licence Plate BTLP975.
[111] Officer Saade also saw Guthrie, who was known to him, at the airport terminal. Guthrie was wearing all grey in the international area at about 12:35 a.m., five minutes before Grey met with Officer Rooney. Officer Saade also saw Guthrie’s GMC Yukon at the airport.
[112] Subsequent investigation of Guthrie’s phone revealed that Guthrie’s phone, which was password protected, was used to conduct a series of Google queries for flights from Trinidad generally and Grey’s flight, specifically.
[113] Ms. Grey testified at trial. She stated that while in Grenada she stayed at the Rex resort. Subsequent investigation by the police of Guthrie’s computer revealed user file names for Grey, Guthrie and Teisha, Guthrie’s wife. Corp. Hull, a computer expert called by the Crown, testified that on October 21, 2014 at 9:28 p.m., local Toronto time someone manually typed in a search for Rex Hotel Grenada on the computer. This search was conducted under Teisha’s user account which was password protected.
Search of Guthrie’s residence:
[114] Following Guthrie’s arrest a search was conducted of his home. Guthrie and his wife were present at the time. The search was videotaped and photos were taken. However, both the video of the search and photos taken were subsequently lost by the police. The following items were seized:
Officer Limsiaco located: carbon paper (similar to the kind of wrapping the drugs were in) cellophane bags, elastics, adhesive, a scale, and a vacuum sealer under the sink. All of these items were located together in a blue gym bag
Officer Gomes located a money counter
Officer Souvandy located a Blackberry, a computer and a note referencing the shipment of vacuum sealers to Trinidad
Officer MacDougall seized and counted $53,875.00 cash
The video of the search was lost as were the photos taken of the cash seized and as a result this missing evidence was not before the court.
[115] Detective Ross, an acknowledged expert in the distribution and sale of cocaine, testified that in his experience, these seized materials were associated to drug trafficking. Vacuum sealing is used for packaging and to reduce odour, and carbon paper is used due to a perception that it reduces the risk of identification. Adhesive is used to bind that carbon paper, and elastics are used for bundling money. Even in a domestic context, Ross stated that these items have their use: cocaine can be re-packaged after adding adulterants to look as if it was directly from the source country, so to increase profit margin. Ross also pointed out that, objectively, $50,000 is a significant quantity of cash to have sitting around. Drug distribution is a cash business and the quantity of cocaine involved, retailing at $35,000.00 to $40,000.00 per kilogram, would have produced significant profit.
[116] The defence highlights several issues that they say diminishes the strength of the Crown’s case with respect to this importing.
Testimony of Grey
[117] Pamela Grey testified that this was not her first trip to Grenada. She had travelled to Grenada in July 2014 and the same person who paid for her October trip paid for the July trip.
[118] Grey testified that she met a black male in Toronto a couple of times. At one of these meetings she obtained the suitcases from him. At one of the meetings she was given money to book her trip. The black male was in a vehicle, a big black SUV.
[119] After her first trip to Grenada she met this same person at a location near the airport and gave him the bag she had taken with her.
[120] The second trip she took to Grenada was the October 2014 trip. She again met the same person. In this case she would be travelling with two other women Grey met a few times with the same male.
[121] This male told her to take six suitcases, two for each of the women.
[122] This male met her at a parking lot and gave her all six bags.
[123] While in Grenada, she never saw the black male who had given her the bags and arranged for the trip.
[124] With this background regarding her several dealings and contact with the black male, the defence points out that during a photo line-up conducted on March 23, 2017, Grey excluded Guthrie as the black male she had met to arrange her trips to Grenada. It is important to note that as a result of a lost evidence application brought by Guthrie the Crown conceded the point.
[125] The photo line-up was conducted on March 23, 2017. During the course of the photo line-up, Cst. Gulaj went through the photo pack with Grey a total of four times. Grey was unable to identify anyone. The Crown agreed that she excluded Guthrie as the person she met with.
[126] In cross-examination, Grey stated further that she knew the person she had dealt with as Dave but thought his real name was Andrew.
Surveillance Testimony of Officer Oliveros and Officer Saade
[127] Officer Saade testified in cross-examination that he knew who he was looking for as he had seen a photo of Guthrie and had a description of Guthrie. Officer Saade did not recall whether Guthrie had a 3 inch scar on his left cheek.
[128] Although Officer Saade was provided with a photo of Guthrie to use during his surveillance, he no longer had that photo. It was not available for the court at trial. Officer Saade was told that Guthrie drove two vehicles, a Yukon and a Jaguar. However, he did not know the colour of either.
[129] Officer Saade could not recall getting any of the following descriptors of Guthrie: scar, dimples, facial hair, mustache, length of hair, size, and shape of face.
[130] Officer Oliveros was also part of the surveillance team on October 27 and 28, 2014. She observed Guthrie in the International area of Terminal 1 at arrivals by Column D. She made this observation at 11:57 p.m. She described Guthrie as a “big guy”, on his phone, wearing a grey hoodie.
[131] In cross-examination by the defence, Officer Oliveros stated that she also had seen a photo of Guthrie but no longer had it and could not therefore produce it at trial.
[132] Officer Oliveros made the following notes with respect to her observations of Guthrie:
U/M, that is an unknown male. She explained that this was an error on her part to describe Guthrie, who she knew to be Guthrie, as an U/M
Guthrie was 5 feet 10 inches or 5 feet 11 inches
He was over 250 pounds
He had dark shoes on and a grey hoodie and track pants
He was bald
[133] Constable Elliot fingerprinted Guthrie after his arrest. His photo was taken on October 30, 2014. Cst. Elliot confirmed that as of October 30, 2014, Guthrie was not bald.
[134] Cst. MacDougall confirmed that a Webster Richards is a bald man. (See Exhibit 59).
Computer Search
[135] The investigation of the computer seized from Guthrie’s residence indicated that on October 20, 2014, someone used the computer to search for the Rex hotel in Grenada. Guthrie’s PAXIS travel query confirms that Guthrie was in Trinidad on October 20, 2014. Thus, he could not have manually conducted that search on his computer in Canada.
Cst. MacLeod’s fingerprint testimony
[136] Cst. Macleod stated that fingerprint R9 matched Guthrie’s left thumbprint. However, the conclusion in her report stated that R9 matched his left middle finger.
Search Warrant Execution
[137] Guthrie points to numerous difficulties with the execution of the relevant search warrants in his closing submissions at pages 9 to 11 as follows:
A search warrant for Guthrie’s home was executed on October 29, 2014. No drugs, contraband or anything illegal was found. The items seized consisted of bank documents, travel documents, electronic devices such as cell phones and laptops, suitcases, currency, money counter, vacuum sealer, digital scale and cellophane rolls.
All of the search officers testified in court that the scene was videotaped prior to and following execution of the search warrant by Detective Constable Romano. Sergeant Brons also took photographs of the money seized. Without reasonable explanation, the videos and photos from the search warrant execution have been lost. Interestingly, Detective Constable Romano testified that the camera contained videos dating back to 2012, yet the videos from 2014 search of Mr. Guthrie’s home are missing. Without these videos and photos, the continuity of the seized items has not been established.
Mr. Guthrie’s testimony contradicts that of the search officers regarding the location of several significant items seized, specifically the “drug packaging equipment” found in an Adidas bag under the sink in the kitchen. Without the videos, there is no conclusive evidence of where the items were actually kept. For example, Mr. Guthrie testified that the vacuum sealer was on top of the kitchen counter. The video would definitely have caught that since Det. Cst. Romano agreed that he would pan the camera to the walls, furniture, ceiling and floor.
Constable MacDougall handled the exhibits seized from Mr. Guthrie’s home. Of significance is Toronto Police Services property bag No E190403, which contained the purported “drug packaging equipment” found by Officer Limsiaco. MacDougall testified that the property bag was sealed. Detective Constable Romano confirmed MacDougall’s testimony on this point and testified that the only exhibits that were not sealed were the suitcases. However, in the photos of the items seized from Mr. Guthrie’s home on page 7 of 9, the cellophane rolls are clearly outside of the sealed bags. Yet somehow, once again, the items from the blue Adidas bag are back in the same sealed property bag when brought to court. Romano had no explanation and could only confirm that the property bags were given to him already sealed. It is interesting to note that Sergeant Gomes, who testified after Romano, claimed that he did not recall whether the items he seized from the home were sealed into property bags on scene. Similarly, Sergeant Brons, who also testified after Romano, claimed that he would sometimes seal property bags and he sometimes would not and he did not recollect what he did on this specific occasion. It was only when he was confronted with the information that Romano would only accept sealed bags that he said the bag must have been sealed.
MacDougall counted the currency seized from Mr. Guthrie’s home and vehicles. On November 14, 2014, the money seized from the Yukon vehicle totaled $1440. On November 21, 2014, the money seized from the house totaled $53,875. Mr. Guthrie testified that there had been $130,000 in his home at the time of the search warrant. This is a significant discrepancy. Without the photographs taken by Brons, we do not have conclusive evidence of the actual amount of money found in Mr. Guthrie’s home.
Sergeant Gomes was responsible for loading Mr. Guthrie’s vehicles onto the two trucks. In order to preserve the integrity of the vehicles, they either have to be sealed or followed to the police facility. Gomes testified that he did not see seals on the vehicles and he did not notice whether the two truck policy was followed. Constable Waite testified that he would be concerned if the vehicles were not followed. Once again, the continuity of these vehicles and the items found within them are therefore compromised.
Detective Ross, the Crown’s drug expert, testified about the significance of the items found during the search warrant execution. He stated that the items found together in the Adidas bag lead to an inference of drug trafficking. All of those items – carbon paper, adhesive, gloves, scale, vacuum sealer, ziplock bags, elastic bands, glue gun – are used in the drug trade. However, it is important to remember that Mr. Guthrie provided a reasonable and innocent explanation for each item and Mr. Guthrie also testified that those items were not placed together.
Surveillance re: Brissett
[138] Guthrie also sets out the evidentiary basis to suggest that Bernard Brissett is involved in the matters as follows:
Bernard and Everald Brissett were targets of police surveillance. In fact, 72 Montebello Avenue, Brissett’s residence, was the target of a 24-hour video surveillance camera. Throughout the surveillance, various people were seen going in and out of the Brissett residence. By contrast, Mr. Guthrie’s residence did not see the same level of activity.
A Jaguar suitcase was seen leaving the Brissett residence. It was located and processed by police on September 30, 2014. It tested positive for cocaine. This suitcase was tagged “Gibb/Lucchetti 14-0596570”. No explanation was given as to why the suitcase was tagged in this manner. The only reasonable inference is that the Gibb/Lucchetti import is connected to Brissett.
A search warrant was conducted on 72 Montebello on October 29, 2014. Multiple cell phones and laptops, travel documents, bank documents, cash, vacuum sealer bags and six suitcases were seized from that residence. These six suitcases were brought to court. Constable MacDougall testified that those suitcases appear similar to suitcases used in importations in that they all had an extra piece of plastic inside. Two of the suitcases had screws loose inside. One suitcase had two screwdrivers, three screws, a utility knife and four vacuum sealer bags inside it. These items were first discovered by counsel at the trial itself on May 1, 2017. Somehow, they were not discovered by the processing officers. One suitcase even had a toothbrush located inside the suitcase that was first discovered by counsel at the trial itself on May 1, 2017. Once again, it was not discovered by the processing officers.
One of the cell phones located at the Brissett residence during the search warrant execution contained photos and videos of child pornography and bestiality. However, charges were not laid against Brissett.
Testimony of Greg Guthrie
[139] Guthrie denied that he was involved in any importation of drugs or was involved with anyone else in the importation of drugs. He also denied being involved in any conspiracy to import cocaine.
[140] Guthrie acknowledged the following criminal record:
December 6, 1993 Assault
Suspended sentence and probation
Guthrie was subsequently pardoned
February 22, 1995 Assault $350 fine
February 26, 2013 Flight while pursued by Police s. 249.1(1)
Assault Peace Officer
Sentence 6 months on each concurrent
August 8, 2013 Possession of Schedule 2 Substance for Purpose of Trafficking 30 days in jail
[141] Guthrie testified he was married on August 3, 2013 to Teisha Nicole Smith Guthrie. They have a two-year-old child together.
[142] With respect to Annecia Morris, Guthrie stated that he knows her because their families live close together in Jamaica. Guthrie only knew of her here, not in Jamaica.
[143] Guthrie denied he ever discussed a trip with Morris to Trinidad and did not pay for her trip to Trinidad. He essentially denied any involvement in her going to Trinidad and bringing back drugs.
[144] Guthrie acknowledged that he did travel to Trinidad. In 2014, he travelled there for Carnival and had been to Carnival twice before.
[145] His wedding took place in Barbados with guests from Canada and elsewhere.
[146] Guthrie acknowledged that he knows a person named Bernard Brissett associated with a 72 Montabello address. Guthrie went to school with Brissett as a child in Jamaica. Guthrie left Jamaica in 1988 and next saw Brissett in 2010. Guthrie has attended Brissett’s residence. Brissett lives with a couple of brothers and a couple of friends.
[147] Guthrie does not know James Gibb and had never seen him before the day of the preliminary hearing. Guthrie denied any involvement with Gibb in relation to the importation of drugs into Canada.
[148] With respect to the October 27, 2014 surveillance, Guthrie stated he did not know he was being surveilled but he knew he was being followed. He stated this in-chief:
A. It was weird at first, so I stay on the main street mostly.
Q. Okay did you go in different directions?
A. All over. I – I- I turn around. I went down one way street. I – I – I did illegal turns, go as far – I go – I went as far as Kitchener.
[149] When the search warrant was executed at his home, he was at home with his wife, who was eight, almost nine months pregnant. The baby was born on November 28, 2014, about a month later.
[150] Guthrie acknowledged he had zip lock bags and they were in the kitchen drawer. They had a vacuum food cover as well. He took a photograph which was marked as Exhibit 81. The photo depicts the following:
Can of liquid glue
A vacuum sealer
A glue gun
Carbon paper
Those items were left in the home after the police left the residence.
[151] His in-chief testimony explained these items:
Q. And you had that adhesive, which is a 3M and its got a brand 77 on it?
A. Yeah.
Q. Did the police take that?
A. No.
Q. Was it in your home back in October of 2014?
A. It was six can of them.
Q. Okay. And the vacuum sealer bags?
A. No. There was – can I elaborate on that?
Q. Sure, please.
A. A police officer was on the stand and he – and he mentioned that there was…
Q. …many.
A. …thousand, he was right. They – they were all packed up to go away for the chicken farm in – in Trinidad and they were all in the corner. And they took – as far as they took, whatever they took it out of the box, the – the vacuum bags all was there, they took it out and – and took it out of the box and took it in their hand, open it, see what it was and the carbon paper, the whole thing. There was seven – seven – seven package of carbon paper and six glues and – and – and two vacuum seal. The first one that they brought here, they – they don’t work, so this was there and they took that. And they left all these stuff, so I didn’t understand, so they put all of those in my gym bag…
Q. Okay.
A. …from the closet with my soccer shoes and all that.
Q. Okay. So I’m going to stop…
A. Yeah.
Q. …and ask you some questions. First of all, the vacuum sealer, what was the purpose of the vacuum sealer?
A. It was there to – when I prepare food for Teisha and leave in the morning, I would vacuum seal – vacuum seal to – and put it in the freezer. They – they went in the freezer and they cut all those open and leave – and leave them on – on – on the – on the counter when they left.
Q. Okay. How do you know they were on the counter? Did you see them?
A. Yeah. When I come home Teisha was telling me that all the food spoil. I was back home three days later.
Q. Okay. The spray glue…
A. Yeah.
Q. ...what was the purpose of the number of cans that you had of spray glue?
A. Teisha was – Teisha on her – on her bridesmaid, they were making the – I’ll call it the red carpet that they walked on when – when she was getting married, she walked on this day. This veil thing all the way from the front of the church to the altar and – and – the theme was a peacock colour and we couldn’t get a colour that matches the – the silver, so – so she went and get like a wet glue that’s supposed to stick. The other glues couldn’t – wouldn’t stay. It would bulked up, so she went and get a wet glue and spray it onto a mug and use a brush and – and trace with the glue, trace the line.
Q. I – I just gotta stop you, ‘cause you used the hand…
A. Oh, oh…
Q. …gesture. Just stop please. With the – with Mr. Guthrie’s hand, he used his index finger from a motion, extended far away from him, to close to him on the witness stand as if he was using a – akin to using a paintbrush or a painter’s brush. I don’t’ mean a – I mean an artist’s painter’s brush. I don’t’ mean a – I mean an artist’s painter’s brush. Okay. Now you can continue.
A. Yeah. They were just tracing with the – with the – with the – with the – the wet glue ‘cause it was thin and – and go down the middle…
Q. Okay.
A. …with – with the glue and then pour the – the spark or this silver and gold, sparkly and then shake it off and it would stick wherever – wherever the – the spot hit the glue, it would stick to create that. And they bought a lot of them, because they thought it would take a lot more…
Q. Okay.
A. …but it didn’t.
Q. Okay. Let me ask you a question.
A. Yeah.
Q. Where – ‘cause this is a liner…
A. Um-hmm.
Q. …for the – for the ground…
A. Yeah.
Q. …of the floor, right? And I know you described it like a red carpet. Let me finish please, sir. What colour was it?
A. It was white.
Q. Okay. And where was that – where was that done? Where did she do it?
A. It was done in the living – in our – on the kitchen table. It rolled out and as they go along, they pull it, so it was on the kitchen table.
Q. Okay. I’m going to show you a picture and ask if you recognize it, because I understand you took a picture of this yesterday. And this is – see that photo that I’ve shown you.
A. Yeah.
MR. COOPER: And I’m going to give a copy to the court and a copy to my friend.
A. This wasn’t’ taken yesterday.
Q. Okay. You’re going to…
THE COURT: Is that – that’ll be marked…
COURT REGISTRAR: Do you have one for His Honour?
MR. COOPER: That’ll be marked as 82.
THE COURT: Yeah. That’ll be 80 – that’ll be 82.
MR. COOPER: Q. Now I’m showing you Exhibit 82.
A. Okay.
Q. Now that a photo of a photo?
A. Yes.
Q. Okay. But contained as the contents of that photo, is that the runner from your wedding?
A. Yes. That’s the name of it.
Q. Okay. And that was made in Canada by your wife?
A. Yes.
Q. And…
A. And her bridesmaid.
Q. Okay. And that was used when you were down for your wedding…
A. Yeah.
Q. …which was in…
A. …Barbados.
Q. Thank you. And you were married in August…
A. …the 3rd…
Q. …3rd…
A. …2013.
Q. Okay.
THE COURT: That’s Exhibit…
COURTROOM REGISTRAR: …82, Your Honour.
THE COURT: …82.
EXHIBIT NUMBER 82 – Photograph of Runner – produced and Marked.
COURTROOM REGISTRAR: Its called the runner from the wedding.
THE COURT: That’ll be – yes, the runner from…
COURTROOM REGISTRAR: Photo of the runner.
THE COURT: …the wedding.
MR. COOPER: Q. I’m going to show you another picture and its close to the same as Exhibit 82.
A. Um-hmm.
Q. But – and I’m going to ask you if you recognize that and you tell us what’s different from 82 with the picture I’m – that I showed you and I’m about to ask that the exhibit be marked 83. First tell me if you recognize it?
A. Yes, I recognize it.
Q. And what is that?
A. That’s her bridesmaid Tasha who – who was tracing the – the glue.
MR. COOPER: I have a copy for my friend. Before – I’m going to ask you that this photo just shown to you identified with the Exhibit Number 83 could be described as bridesmaid…
MADAM REGISTRAR: Photo of bridesmaid.
MR. COOPER: …working on runner.
THE COURT: Bridesmaid tracing the glue, okay. That’s Exhibit 83.
EXHIBIT NUMBER 83 – Bridesmaid Tracking Glue – Produced and Marked.
[152] Guthrie explained that the computer was used by his wife for her business called FIT BAR. She teaches dance and dance fitness. She was also creating a company called Travel Health and Fitness. In addition to these businesses, Guthrie and his wife own a chicken farm in Trinidad with premises holding 9,000 chickens. They had three chicken coops at 100 metres by 50 metres each. He described the business as follows:
Q. And so tell me how the business worked?
A. Business worked by – which we go up and get contracts from – for instance, if it’s Canada, from Kentucky or wherever, but we – we don’t do any – any- any, I’m going to use the word butchering. We don’t do any butchering. We would – they would purchase the – the chicken as a baby and we just provide the place for them for four weeks and they provide the food, so we only - in fact, I rented it for – for four weeks, so they would bring the babies and they feed – it’s ready in four weeks. They would come back and pick it up and that’ show – when they finish, we would put a price and whatever chickens survive through that. Sometimes a thousand died out of it, sometime, so we – we would – on a full – I’ll give you an example. On a full – on a full coop would get in each coop about four to six hundred thousand Trinidad Money, which is six to – six to one Canadian.
[153] Guthrie explained what the items depicted in the photo at Exhibit 81 were used for.
Glue gun – to put the pearl on the top of the peacock feather.
A. In – in – in – in Trinidad, they don’t have like carbon paper like this. They have a small one for a receipt. We don’t give a receipt with the chicken, ‘cause – so we use a page like a – like a – like your – your regular page leaf, so we put the carbon paper on top of that page, ‘cause the size of it. And we write on top of the carbon paper and then give that piece, because it’s so much information, it’s not a receipt. In Trinidad, it’s about the size of this, which is only a receipt, so whenever you write with a Trinidad carbon, you have to rip a little piece off and give it to whoever come by with – with the drawing of what’s going on, we have to wrote the whole thing. Instead of writing it twice, we just did it one time with the carbon paper, so that’s what that was there for. That’s why there was so much in volume.
[154] Guthrie had not seen his blue Adidas gym bag since the search of his home.
[155] Guthrie acknowledged he had a money counter. It was brand new and he was planning to send it to Trinidad.
[156] Guthrie testified that Teisha’s father is wealthy and her parents live in Barbados. They received significant gifts for their wedding. Teisha received a car from her father. Her parents also gave them $140,000. Guests also gave them money.
[157] Guthrie testified that the police seized significantly more money than the $53,310 they said they took. Guthrie testified it was closer to $130,000. Guthrie told the Officer who was holding the camera to make sure he videotaped everything, including the money.
[158] Guthrie stated that the items the police stated were in the blue Adidas bag were not in that bag. The scale, for example, was beside the microwave. The purpose of the scale was for Teisha to weigh her food as she was pregnant and had to be careful as a result of an earlier miscarriage.
[159] Guthrie testified that he is not known as Dave or Andy. He does not know a Kenny or a Kenny Langhorn. His nickname is Bulldog and he has a tattoo of that nickname on his body.
[160] Guthrie confirmed his height at about 5 feet 10 and a half inches. He is not bald and never shaved his head in 2013.
Cross-examination of Guthrie
[161] Guthrie acknowledged that his passport sets out the following travel stamps:
Stamp from Trinidad – February 26, 2014 Back in Toronto March 5, 2014
May 17 2014 arrived in Port of Spain – back in Toronto May 21, 2014
Back from Port of Spain October 23, 2014
[162] Prior to his arrest, Guthrie knew Mr. Griffith. Griffith was at Guthrie’s wedding. Guthrie stated that Griffith brought a prostitute to his wedding as his date, which ended their friendship.
[163] Bernard Brissett was also at Guthrie’s wedding. Brissett is a close friend. Guthrie knew Brissett was involved in the drug business.
[164] Guthrie explained his attendance at the Holiday Inn as follows:
Q. What were you doing at the Holiday Inn on Airport Road?
A. I left from the – I left from the party coming down and I got off at Martingrove and I noticed people following me, so I start circling around, turn – stayed in the left land and make a right turn, just to see if it was people really following me and I turned into the Holiday Inn. Holiday Inn, its somewhere I stay, ‘cause I couldn’t sleep in the same house with Teisha, which is my wife.
Q. Right. And why not?
A. ‘Cause she was so – she was pregnant and she couldn’t – anything smell like, my – my odour, anything, even if its certain cologne, it would make her throw up.
Q. Okay. So this is a place that you…
A. Yes.
Q. I don’t want to cut you off…
A. Yes.
Q. …but this is a place you’ve been before?
A. Yes.
Q. Okay.
A. Police officers come there and ask the front desk. They call me and told me that police is looking for me there and that was the end of that, so I never…
Q. Do you remember when that was?
A. Close to – probably the – the following day after I know – I noticed they were following me.
Q. Okay. So you weren’t at the – just to be clear, you weren’t at the airport on…
A. No.
Q. …the night of October…
A. No.
[165] Guthrie stated he never touched any of the suitcases filed as Exhibits at trial.
[166] Guthrie confirmed he received $140,000 from Teisha’s parents at the wedding and another $120,000 from other guests.
[167] Guthrie described what he did with the funds as follows:
Q. Some of that, you left in the bank?
A. Some of – the cheques and stuff like that, I don’t know what Teisha did with it, but the cash that her dad give us up here, we invest it in different things, so.
Q. You invested the cash?
A. In different things.
Q. Okay. All of it?
A. Some of it.
Q. How much?
A. I don’t know roughly. We put down – we put down on a condo and a – and a – and a house, that you guys called the bank and told them that I’m a drug dealer, so we lost that. We bought – I bought a couple cars for – from – from Stocks and – and start a – stuff in Jamaica. And – and – and didn’t take much for the – for our farm, because – down in – down in Trinidad, it didn’t take much, so I couldn’t tell you the – the amount, because you guys have all the documents. You guys took all my paperwork, so I have no recollection of anything. I don’t see you guys have anything on the table where I could get into, ‘cause you guys took everything out of my house, paperwork-wise, everything, everything.
Q. You said you had $130,000 in the house, right?
A. Yeah, when the police get there, yeah.
Q. Yeah. When – how long had that $130,000 been in your house?
A. That’s what we’ve been living off of. There was more – that’s what we’ve been living off of, but we know that was – that was there.
Q. So did you count it regularly?
A. No, ‘cause we took the rent out of it. The rent was coming up, so we took the rent cheque. And that’s how we known that – that was left.
Q. When was that?
A. It was coming to the end of the month, so we always take the rent in case, put it in the – in the envelope and put it – put it in – and put it in the box.
Q. So you paid your rent in cash?
A. Yeah.
Q. And – but at the time, you had bank accounts, correct?
A. Yeah.
Q. And you didn’t – but you didn’t feel like you should put the cash in the bank account?
A. I don’t have to. I don’t have to put money. Maybe you do, but we don’t have to. We don’t have to put money in the bank. Why do you have to put money in the bank? Is there a reason why you gotta put money in the bank?
[168] Guthrie alleged that the police stole a large amount of this money and that was why he asked them to videotape the search.
[169] Guthrie explained why he had ready cash in the house: he was regularly buying and selling cars, he had a taxi business in Jamaica, and he would use it for daily living expenses.
[170] The Crown asked Guthrie about the Affidavit he swore in his application to access the seized cash. Guthrie swore in that Affidavit that he had “sole ownership of and access to $55,315.” Guthrie explained that he used the term “sole ownership” because he and his wife are one entity.
[171] Guthrie also swore that “the funds seized from my residence are my life savings.” Guthrie denied that this was a misleading statement.
Position of the Parties
Count 1 – March 6 2014 Importing
Position of the Crown
[172] The Crown submits that Morris’ evidence should be accepted. There is no evidence to suggest she had a reason to implicate Guthrie and shield the real culprit. When asked about Brissett she stated, “I don’t know what his involvement is.”
[173] Morris’ testimony that Guthrie dropped off the bags for her in Trinidad on March 5, 2014 was clearly an error on her part and not a deliberate lie. She was obviously mistaken about the March 5 date.
[174] The Crown argues that Morris’ evidence is corroborated by the following other evidence:
Guthrie admitted being in Trinidad
Morris knew Guthrie as bull or bulldog and Guthrie admitted that was his nickname
The drug related material located in Guthrie’s apartment
The text message conversation with Mel4
Two fingerprints identified by Officer Scarlett
[175] The Crown submits that in order for there to be any doubt of Guthrie’s guilt all of the following factors would have to be reasonably possible:
Morris is lying
The fingerprints in her bag were planted or wrongly identified
The text message was planted by the police
[176] The Crown submits that none of these are possible.
Position of the Defence
[177] The defence submits that Guthrie was not involved in this matter. Morris is not credible or reliable. She is related to the Brissett family and has a motive to protect them. The Brissetts are involved in the drug trade.
[178] Further, Morris has charges pending and is testifying to gain favour in how the Crown and police will deal with her charges.
[179] Guthrie also points to the following factors to support his position that Guthrie is not involved:
The loss of continuity with respect to the suitcases and their processing through the temporary lockers. This loss of continuity undermines the integrity of the fingerprint evidence found inside the suitcases
Guthrie could not have given the suitcases to Morris when she stated he did as the PAXIS traveller query showed he was in Bermuda from January 21 to January 30, 2014
Morris stated Guthrie returned the bags to her in Trinidad on March 5, 2014, the night before she flew back to Toronto, but the PAXIS travel query showed that Guthrie was already in Toronto on March 5, 2014 at 11:55 a.m. He could not have been the person who met with her on March 5, 2014.
After her arrest, Morris gave a statement to the police at 21:36. She made no mention of Guthrie until 1:19 a.m., which was after her mom had spoken to DC Smith.
The Crown did not tender the AFIS reports into evidence and as such the results obtained by AFIS are hearsay. The AFIS matches cannot be relied upon for the truth of their contents
The fingerprint evidence is not reliable and prone to confirmation bias. The court should look at such evidence with caution as it is inherently frail
Sgt. Scarlett testified that the C-216 form used contained the name Greg Malcolm Guthrie, whereas Guthrie’s middle name is McLaren, not Malcolm. There is no evidence tying Guthrie to the C-216 form.
Of the 14 prints located only two may have originated from Guthrie. Since fingerprints cannot be dated there is no method of determining when the fingerprints get onto a surface. There may be innocent explanations for how the prints got there and when.
[180] In summary, the defence submits that with all of the inconsistencies in relation to Morris’ testimony, the loss of continuity with the suitcases, and the frailties relating to fingerprint evidence, the court should have a reasonable doubt on this count.
[181] In addition to all of this, Mr. Guthrie testified on his own behalf.
[182] In assessing his evidence in accordance with W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742, even if the court does not accept his evidence or is not left in reasonable doubt by it, the balance of the evidence that the court can accept cannot anchor a finding of guilt.
Counts 2 and 3 May 2014 Importing/Conspiracy to Import
Position of the Crown
[183] The Crown acknowledges that Gibb was not a perfect witness and that the court should treat his evidence with skepticism. The Crown also acknowledges that Gibb’s claim to have believed he was transporting money is, in particular, worthy of suspicion.
[184] However, the Crown submits that Gibb was credible and reliable on the significant points implicating Guthrie and much of his evidence is corroborated. The Crown points to the following evidence in support of its position:
The contacts in Gibb’s phone with “Big Mac” and “Terry”. These contacts were not found by manual examination and appeared to have been deleted so they were not created by Gibb in order to be found by police
Guthrie was in Trinidad during the relevant time
Gibb described Guthrie’s driver as Melissa and there is a text message conversation with a Mel4(on Guthrie’s phone)
Lucchetti testified about meeting a Melissa in Trinidad
Guthrie offered him a “Key of coke”.
He identified both Guthrie and Griffith. He had met both several times in close quarters. He picked both out of photo line-ups
Guthrie testified he knew Griffith and both were connected to 72 Montebello
[185] The Crown submits that both Guthrie and Griffith were parties to the importing. Griffith conducted the initial negotiations and provided the bags. Guthrie finalized the arrangement and organized the bags in Trinidad.
[186] Finally, in May 2014, Guthrie and Griffith agreed to import cocaine from Trinidad.
Position of the Defence
[187] The defence submits that Gibb is a liar and his testimony is not reliable. Gibb and Lucchetti contradict each other on significant details. The defence points to the following testimony that diminishes the strength of the Crown’s case and submits that a reasonable doubt must follow:
Gibb’s description of Big Mac, “large guy, easily a half foot taller than myself, very large – in a 300 pound range, many tattoos on arms”. Guthrie is 5 foot 10 inches, not 6 foot 4 inches. Lucchetti also testified that the person was a lot taller than Gibb. Gibb is 5 foot 10 inches
No mention by Gibb of a 3 inch scar on Guthrie’s left side of his cheek
Pock marks on Guthrie’s face not mentioned by Gibb during the photo line-up
Gibb was inconsistent as to who gave him the $1,400
Gibb was inconsistent regarding the location about his first meeting with Big Mac
Guthrie went swimming in the pool in Trinidad. Gibb stated Guthrie had tattoos on his arms. Exhibit 65 a photo of Guthrie’s upper body both shows he is tattooed over his entire upper body, back, chest and arms.
Gibb testified Guthrie took two suitcases, Lucchetti said he took all four
Inconsistencies regarding who paid for the flight and hotel
Gibb admitted to being dishonest in relation to opening up a business account and booking a flight
The photo line-up is conducted a year after Gibb’s arrest
Gibb has a motive to implicate Guthrie, namely, to avoid his own criminal culpability
The claim that he was transporting large sums of cash makes no sense. Gibb and Lucchetti were not provided with any instructions on what to do with the cash upon their return to Canada. Why would someone hand over a large amount of cash on the first day of a seven day trip to be left in a hotel room instead of a secure location?
Lucchetti has never seen Griffith before these proceedings commenced
[188] The defence submits that there is no evidence to establish any conspiracy between Guthrie and Griffith.
[189] Griffith adopts the submissions of Guthrie and summarizes his position as follows at paragraphs 16 to 19 of his written submissions:
- Gibb is without a doubt a suspect witness:
a) He is involved in the illegal activity. In fact he is at the centre of it.
b) He has a motive to lie, and even the Crown has invited the court to reject his testimony regarding his own involvement in the importation:
It does not make sense that he would leave money in the suitcase in the hotel room for a week;
It does not make sense that anyone would let him leave a suitcase full of money in the hotel room for a week;
It does not make sense that they would be given the money with no instructions as to what to do with it upon their return;
Further, Gibb confirmed that he was given very little instruction about his participation in the enterprise. His evidence is consistent with him being in charge of the importation and not as a dupe as he alleges.
c) His sworn testimony is internally inconsistent.
d) He was inconsistent as to how he received the alleged $1400.00. first he said he received it from Griffith and then he said he received it from Guthrie;
e) He stated several times that Griffith gave him the airplane tickets and then later stated that he could not remember when he got the tickets. Lucchetti stated that she paid for them and printed them off and gave them to Gibb.
f) He testified that he would not lie for any reason and then admitted that he lied for $50. and that he was the front man in an attempted bank fraud.
g) His story of previously going to Trinidad at the behest of Webster Riccardo Richards and not committing any criminal offences is a lie because it makes no sense that someone who purchased only small amounts of marijuana from a dealer would be sent to Trinidad for no discernable purpose. It also does not make sense since he told Lucchetti that he “had done this before”.
h) He stated that he received the suitcases from Griffith at the McDonalds when Lucchetti stated that she observed the person who provided the suitcases and this person was not Griffith.
The second issue to be determined is whether or not the witness is central to the Crown’s case against the accused. Here, as has been stated many times, Gibb is the only witness against Griffith.
The third issue is the caution that it is dangerous to convict in the absence of any independent and material evidence supporting Gibb’s allegations against Griffith. Griffith submits that it is dangerous to convict on Gibb’s evidence.
The fourth issue is what independent and material evidence exists to support Gibb’s allegations against Griffith. The short, yet complete answer to this question is that there is no material and independent evidence supporting Gibb with respect to his allegations against Griffith.
a) Gibb’s allegations as against Griffith are that he provided $1400.00 to Gibb. As stated above, Gibb also testified that he received the money from Guthrie, and
b) Gibb stated that he received the plane tickets from Griffith and later, when confronted with the anticipated contradictory evidence from Lucchetti, he stated that he forgot who gave him the tickets. Lucchetti of course stated that she purchased the tickets.
Count 4 October 27, 2014 Importing
Position of the Crown
[190] The Crown sets out the following evidence to support its position on this count:
The fingerprint evidence
Any suggestion that McLeod misidentified 10 separate fingerprints should be rejected
The surveillance evidence of Officer Oliveros, Dale and Saade
Google inquires about flights from Trinidad generally, and Grey’s flight specifically. This phone was password protected
Grey testified she stayed at the Rex resort in Grenada. A computer search for Rex Hotel Grenada was conducted on the computer seized by the police
Drug paraphernalia seized at Guthrie’s residence pursuant to the execution of a search warrant
[191] With respect to this count and all of the others the Crown submits that Guthrie’s testimony should be rejected for the following reasons:
He made false statements in his affidavit in support of his application to access seized funds
He was inconsistent with respect to his evidence that he and Teisha were a single entity
He mischaracterized the significant amount of cash he had as his “life savings”.
He gave misleading statements in his affidavit that he was trying to sell his car
Guthrie was evasive. The Crown points to the following to support this position:
He could not provide a coherent explanation for why he kept between $140,000 and $260,000 in a closet at home for over 1 year when he maintained multiple bank accounts, and became increasingly evasive in regard to attempts to get that explanation. Simple questions about this were invariably met with obfuscation and argument rather than simple answers;
He claimed to have specific recollection of facts that supported his version of events, such as the exact number of vacuum sealers (two), carbon paper rolls (seven plastic bags (thousands – confirming police evidence on that point), and spray glue cans (six) in his apartment in 2014, and the exact amount of cash in his closet. But when pressed for details that challenged his account, he would not say how much money was actually provided at the wedding in the Caribbean, how much was in cash, how much everyone gave, or what was done with the money once in Canada. In short, he claimed a complete inability to recall any details about his finances.
Despite his insistence that he and his wife were one unit financially, he first admitted she had a student loan, but then claimed no knowledge as to whether she had a student loan. The only possible conclusion is that he was seeking to avoid being confronted with an apparent contradiction between the existence of a student loan his insistence that his wife’s family was wealthy and that her father would do anything to help his daughter;
He denied having ever even taken an airplane through Grenada, despite being presented with Exhibit 85, a travel history report that showed him travel through “GND”,
On the last two occasions, rather than answer straightforward questions, he gave rambling, largely incoherent speeches that can only have been intended to avoid answering the question.
[192] In summary the Crown submits that Guthrie’s denial of involvement in any of these importations is contradicted by the compelling physical and electronic evidence, along with the testimony of each of the couriers.
[193] The Crown submits further that there is no evidence the police planted evidence or fabricated evidence in order to secure a conviction.
[194] Finally, the Crown argues that there is no air of reality to any alternate suspects.
[195] A reasonable doubt cannot arise from speculation or conjecture. The Crown submits that there is no other available inference other than guilt.
Position of the Defence
[196] The defence sets out a series of significant deficits in the Crown’s case that lead to the conclusion that the Crown has not established Guthrie’s involvement in the October 2014 importation beyond a reasonable doubt. The following evidence, the defence submits, supports that proposition:
There is compelling evidence that Guthrie was not the person who met with Grey nor was he the person who arranged for her to travel to Grenada. In the photo line-up conducted with Grey, she excluded Guthrie as that person
Grey still has charges pending before the court
Surveillance Officer Oliveros describes the black male she sees at the airport as bald. Guthrie is not bald. Webster Richards, who Gibb dealt with at one point, is a bald man
The Grey importation involved six bags. Officer Huskinson testified that on October 27, 2014 he seized only four bags from CBSA Officers. As such, there is no way of knowing for certain which suitcases were actually seized or whether these suitcases contained the allegedly identifying prints
Cst MacLeod’s fingerprint analysis is flawed
Guthrie could not have conducted the Rex Hotel search as he was in Trinidad at the relevant time.
Testimony of Guthrie
[197] The defence submits that Guthrie’s evidence ought to be accepted and if it is not accepted, at the very least it raises a reasonable doubt.
[198] Guthrie made several admissions against his interests. For example, he admitted being in the area of the airport on October 27, 2014, but denied being inside the terminal. He explained why he stayed at a hotel during his wife’s pregnancy.
[199] With respect to the alleged drug paraphernalia and packaging equipment found at his home, he gave a reasonable explanation for each of the items.
[200] With respect to the large amount of cash he had, again he explained the source of the cash. He insisted that the money be videotaped. Keeping money at one’s home is not a crime nor is it indicative of any crime.
[201] Guthrie testified he had not used the Blackberry for a long time and only his laptop and Samsung phone had passwords. The text messages relating to Count 1 were located on the Blackberry.
[202] With respect to Guthrie’s testimony, the Crown submits Guthrie’s denials with respect to the electronic evidence are particularly damaging to his version of events. He denies having used his phone to search for Pamela Grey’s flight. But those searches were conducted on a device he also claimed was password protected, for which he did not give the police the password, which was seized from his residence. Since there is no basis to believe the police played any part in the creation of those records on his phone, his denial of performing those searches is simply unbelievable. Similarly, his denial of possession of the phone containing the text conversation with “Mel4” is also unbelievable. Again, the phone was seized from his residence, and it is contrary to all the evidence and to common sense to suggest the police planed it there. Those messages were entirely consistent with Annecia Morris’ testimony. Guthrie’s claims in that regard should be rejected.
Analysis
Governing Legal Principles
It is important to set out the most fundamental principles that apply in criminal cases.
Presumption of Innocence
[203] Every person charged with an offence is presumed to be innocent, unless and until Crown counsel proves his or her guilt beyond a reasonable doubt. This presumption is only defeated if and when Crown counsel satisfies the court that the accused is guilty.
Burden of Proof
[204] It is also important to keep in mind that the obligation to prove an accused’s guilt rests with the Crown from start to finish and that obligation never shifts. An accused does not have to prove anything.
W.D.
[205] In this case Guthrie testified on his own behalf. In those circumstances a W.D. instruction is necessary. The W.D. instruction sets out the following:
[1] If I believe Guthrie’s evidence that he did not commit the offence(s) charged, I must find him not guilty.
[2] If, after a careful consideration of all the evidence, I am unable to decide whom to believe, I must find him not guilty because Crown counsel would have failed to prove his guilt beyond a reasonable doubt.
[3] Even if I do not believe Guthrie’s evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.
[4] Even if his evidence does not leave me with a reasonable doubt of his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
Reasonable Doubt
[206] The standard of proof beyond a reasonable doubt only applies to the court’s final evaluation of guilt or innocence. It is not to be applied piecemeal to individual items or categories of evidence: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345
[207] A reasonable doubt is not an imaginary doubt, far-fetched or frivolous. It is not a doubt based on sympathy or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence. Probable or likely guilt is insufficient: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320.
[208] If at the end of the case, based on all of the evidence or the absence of evidence, or the credibility of one or more of the witnesses or the reliability of his or her evidence, I am not sure that the accused committed an offence, then I should find him not guilty.
[209] All of these very basic and important fundamental principles guide the court in its consideration and assessment of the totality of the evidence to decide whether the Crown has met the onus to establish the guilt of both accused beyond a reasonable doubt.
Counts 1, 2 & 4 Importing a Controlled Substance:
Essential elements
The accused imported a substance into Canada.
The substance was a controlled substance
The accused knew that the substance was a controlled substance and
The importing was intentional.
Count 3 Conspiracy to Import Cocaine:
Essential Elements:
There was a conspiracy between two or more persons
The conspiracy was to import cocaine into Canada and
The accused was a member of that conspiracy.
[210] It is important to set out that where the case for the Crown is based on circumstantial evidence, in order to find the accused guilty, his guilt must be the only rational conclusion that can be drawn from the whole of the evidence.
[211] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, Cromwell J. reviewed the legal principles relevant to the court’s assessment of circumstantial evidence and the relationship between circumstantial evidence and proof beyond a reasonable doubt. Cromwell J. sets out the following at paras. 35 to 43:
At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
I have found two particularly useful statements of this principle.
The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.
The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.
[212] In R. v. Morris, 2017 ONSC 835, 137 W.C.B. (2d) 41, Code J. also dealt with the law relating to circumstantial evidence at paras. 103 to 106 as follows:
To satisfy the Crown’s burden of proof in a circumstantial case, the inference of guilt must be the only reasonable inference arising from the evidence. Therefore, in the context of the knowledge and control issues in the case at bar, the Crown cannot succeed unless the only reasonable inference is that a particular accused had knowledge and control in relation to a particular seizure. See: R. v. Cooper (1978), 1977 11 (SCC), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), 1985 3545 (ON CA), 23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 303 (S.C.C.); R. v. Villaroman (2016), 2016 SCC 33, 338 C.C.C. (3d) 1 at paras. 28-30 (S.C.C.).
The first step in a circumstantial case, is to determine what primary facts have been proved. The second step is to determine what reasonable and non-speculative inferences flow from the primary facts. See: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 at 31-2 (S.C.C.); R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 at paras. 33-5 and 42 (Ont. C.A.); R. v. Alexander (2006), 70 W.C.B. (2d) 321 (Ont. S.C.J.).
As in most circumstantial cases, some of the primary facts in this case do not support an inference of guilt or they are open to innocent explanations, when viewed in isolation. The proper way to assess the cogency of any suggested rational inference, or any suggested innocent explanation, is not by analyzing the primary facts piecemeal. As Taschereau J. put it, speaking for six members of the Court in R. v. Coté (1941), 1938 44 (SCC), 71 C.C.C. 75 at 76 (S.C.C.):
It may be and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value, but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for conviction. [Emphasis added.]
Also see: R. v. Morin (1988), 1988 8 (SCC), 44 C.C.C. (3d) 193 at 205-211 (S.C.C.); R. v. Bouvier (1984), 1984 3453 (ON CA), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d. 1985 17 (SCC), 22 C.C.C. (3d) 576 n (S.C.C.); R. v. J.M.H., 2011 SCC 45, 2011 S.C.C. 45; R. v. Morin (1992), 1992 40 (SCC), 76 C.C.C. (3d) 193 at 200 (S.C.C.); R. v. Lynch, Malone and King (1978), 1978 2347 (ON CA), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.).
Finally, it must be remembered that a potential inference of guilt will only satisfy the Crown’s burden of proof if it is the only reasonable inference arising from the evidence. However, inferences consistent with innocence do not have to arise from proven facts and they do not have to be the only reasonable inferences. Inferences consistent with innocence can arise from a lack of evidence and they may simply be reasonable possibilities, provided they are based on logic, common sense, and experience and not on speculation. See: R. v. Villaroman, supra at paras. 35-43; R. v. Finlay and Grellette (1985), 1985 117 (ON CA), 23 C.C.C. (3d) 48 at 58 (Ont. C.A.); R. v. Figueroa, supra.
[213] In R. v. Buttazzoni, 127 W.C.B. (2d) 37, Daley RSJ, thoroughly reviews the principles relevant to conspiracy to import at paras. 41 to 56 as follows:
Proof of a criminal conspiracy requires evidence of an agreement involving two or more persons to complete an illegal act, or to commit a lawful act, but through unlawful means. The essential elements of the offence of conspiracy are:
(1) that there was an agreement between two or more persons;
(2) that the agreement was to commit an indictable offence; and
(3) that the accused was a party to that agreement: R v. Carter 1982 35 (SCC), [1982] 1 S.C.R. 938; United States Of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462 at para. 86.
It is not necessary that it be demonstrated that each co-conspirator was aware of all of the details of the common scheme, but simply that each had knowledge of its general nature.
It is well-established that the parties to such an agreement need not have all been charged or on trial at the same time; or that the agreement include terms as to the duration of the agreement or the roles of those who are parties to the agreement; or that all participants have to join the agreement at the same time and stay involved in the agreement for the same period or leave the agreement at the same time.
Although a meeting of the minds between the conspirators, with respect to the object of their agreement, must be established, the Crown need not prove that each conspirator was aware of or communicated with, all other conspirators: R. v. Longworth et al. (1982), 1982 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.).
In determining whether the requisite actus reus of the offence of criminal conspiracy is present, the inquiry is whether an agreement was reached by the conspirators and not what each conspirator may have done in their efforts to realize their common goal. The fact that one or more parties to a conspiracy agreement is kept in the dark as to the relationship with and as between other parties to the agreement, and the fact that one or more parties to the agreement has no contact with other parties to the agreement, are strategies that may be expected to characterize a conspiracy to import drugs: R. v. Nieme, (2006) 2006 13949 (ON CA), 208 C.C.C. (3d) 119 at paras. 65 – 66. (Ont. C.A.).
In considering whether the required actus reus exists, the focus of the examination is on whether an agreement was reached by the conspirators and not as to what each conspirator may have done in their efforts to realize their common goal. The acts of the co-conspirators in carrying out the planned illegal act are not necessarily irrelevant , as the acts carried out by the co-conspirators can often furnish evidence of the existence of an agreement: R. v. Gassyt, 1998 5976 (ON CA) at para. 17. The offence of conspiracy is more likely to be proven by evidence of overt acts by the conspirators, from which the prior agreement can logically be inferred.
In its decision in R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938 the Supreme Court of Canada established a process for the consideration of evidence in respect of a charge of criminal conspiracy and for the purpose of guiding the determination as to whether or not the co-conspirator’s exception to the hearsay rule is engaged.
McLachlin C. J. in R. v. Mapara 2005 SCC 23, [2005] 1 S.C.R. 358 summarized the co-conspirator’s exception to the hearsay rule in Carter at para. 8 as follows:
The co-conspirators’ exception to the hearsay rule may be stated as follows: “Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object” (J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 303). Following Carter, co-conspirators’ statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy.
A co-conspirator’s guilty plea or statement to the police is not admissible as against other co-conspirators as these are after-the-fact statements or confessions and were not made in furtherance of the conspiracy alleged.
The trier of fact, whether a judge or jury, must be instructed to follow these steps:
(1) The trier of fact is to consider whether on all the evidence he is satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed. If he is not so satisfied, then the accused must be acquitted;
(2) If the trier finds that a conspiracy, as alleged, did exist, then he must review all of the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he is a member of the conspiracy;
(3) If satisfied on the balance of probabilities that the accused is a member of conspiracy alleged, the trier is then entitled to apply the hearsay exception and consider the acts and declarations made by the co-conspirators in furtherance of the conspiracy, as evidence against the accused on the issue of his guilt beyond a reasonable doubt;
(4) If the trier of fact determines that there is sufficient evidence directly admissible against the accused, making his participation in the conspiracy probable and thereafter applying the hearsay exception, the trier must still be satisfied beyond a reasonable doubt as to the existence of the conspiracy and the accused’s membership in it: The Law of Evidence, Fifth Edition, Paciocco and Stuesser, Irwin Law, 2008.
Thus, steps one and three in the Carter process must not be conflated.
The co-conspirator’s exception to the hearsay rule applies not only to a conspiracy charge but to acts done or words spoken in furtherance of a common unlawful design: R v. Koufis 1941 55 (SCC), [1941] S.C.R. 481; R. v. Baron 1976 775 (ON CA), [1976] O.J. No. 2304 (Ont. C.A.).
As to the first part of the three part Carter process, namely the determination as to whether or not a conspiracy truly exists, that is did two or more persons agree to commit the common crime, in considering this the court must examine “all of the evidence”: Carter – which has been held to mean as referring to both the evidence otherwise admissible against the alleged co-conspirators and the evidence contingently admissible under the co-conspirators exception: R. v. Smith [2007] NSCA 19 at paras. 225-233; R. v. Wu, [2010] A.J. No. 1327 (C. A.) at paras. 40 – 41; R. v. Puddicombe , 2013 ONCA 506 at paras. 111-112.
After the trier of fact determines beyond a reasonable doubt that a conspiracy did exist, the second part of the Carter process requires a determination as to whether or not the accused was a member of the conspiracy. In this part of the process, the trier must only consider evidence that is admissible as against each accused, and where there is more than one accused, the analysis must be performed for each accused: R. v Gagnon , 2000 16863 (ON CA), [2000] O.J. No. 3410 (C.A.) at paras. 61 – 62.
The Crown’s burden in this second part of the Carter process is to prove on a balance of probabilities that an accused was a member of the conspiracy. The trier of fact is not to consider the evidence against the particular accused in isolation. The acts and utterances of the particular accused under consideration must be examined in the context of the actions and declarations of co-conspirators, for the limited purpose of establishing the context within which the accused’s own acts and statements are to be understood. Thus, the actions of possible co-conspirators and the fact of certain conversations having taken place would provide a context in which the words and actions of the accused are to be evaluated: R v. Filiault, 1981 3165 (ON CA), [1981] O.J. No. 132 (C.A.) at paras. 14 and 17, aff’d R. v. Kane , 1984 72 (SCC), [1984] 1 S.C.R. 387; R. v. Gagnon supra at para. 51.
As to the third and final step in the Carter process, having decided that the accused being considered was, on the balance of probabilities, a member of the conspiracy, the trier of fact would then be entitled to apply the hearsay exception and consider the acts and declarations made by co-conspirators, in furtherance of the conspiracy, as evidence against the accused under consideration, on the issue of his guilt beyond a reasonable doubt.
Fingerprint Evidence:
[214] In R. v. D.D.T. (a young person), 2009 ONCA 918, 257 O.A.C. 258, Epstein J.A. dealt with the issue of fingerprint evidence at paras. 13 and 14 as follows:
Here, since the evidence linking the appellant to the crime is entirely circumstantial, the question is whether the trier-of-fact, acting judicially, could be satisfied that the appellant's guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, at para. 13.
While fingerprint evidence is powerful evidence that the person whose print is on the object touched that object, the connection with the crime will depend on the existence of other evidence capable of establishing that the accused touched the object at the relevant time and place: R. v. Mars (2006), 2006 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 19.
At paras. 22 and 23 Epstein J.A. states:
The Crown submits that this case is similar, in that the officer’s evidence that the fingerprints looked new and that they were taken from the edges of the glass where a person would have grasped the pane to remove it from its clips, was sufficient to connect the owner of the prints to the break and enter, and by further inference, to the theft.
The appellant, for his part, urged an analogy between this case and Mars, in which Mars was also convicted of offences arising out of a home invasion. The only evidence connecting him to the crimes was a fingerprint found on a pizza box used as a ruse to gain entry into the victims’ apartment. The Crown’s fingerprint expert could neither date the fingerprint nor offer an opinion about when the fingerprint was placed on the box. He acknowledged that a fingerprint could remain on a surface like the pizza box for years.
Finally at para 26:
The existence and reliability of other evidence capable of establishing that the appellant touched the window panes at the relevant time forms the crux of this case. As I have said, the fingerprint evidence clearly established that the appellant, at some point in time, had touched the windows. However, the probative value of this evidence depended on whether the entirety of the evidence reasonably permitted the inference that the appellant touched the windows in connection with the August 2006 break-in and not at some other time. The fingerprint evidence by itself did not permit any such inference. The reasonableness of the inference that the appellant touched the windows in connection with the break-in depends, therefore, on whether it could reasonably be drawn from the evidence other than the fingerprints themselves.
[215] In R. v. Mars (2006), 2006 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. CA. .), Doherty J.A. sets out the following at paras. 18 to 24:
With respect to the trial judge, I think he made two errors. First, in referring to fingerprint evidence he said:
Fingerprint evidence, because each person’s prints are unique, found at a crime scene is highly inculpatory evidence.
The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object. However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime.
In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time. However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonably permitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box. The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection with the robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself.
The evidence does not reasonably permit the conclusion that the appellant placed his fingerprint on the pizza box at the time of the robbery. Quite simply, there is no evidence that assists as to when the fingerprint was placed on the pizza box. Put somewhat differently, the Crown cannot point to any evidence that makes the inference that the appellant touched the pizza box in connection with the robbery a more likely inference than the inference that he touched the pizza box at some other time.
Crown counsel submits that the trial judge was entitled to draw the inference that the fingerprint was placed on the pizza box in connection with the robbery because there was no other reasonable explanation proffered by the defence. Counsel relies on R. v. McFadden (1981), 1981 342 (BC CA), 60 C.C.C. (2d) 305 at 307 (B.C.C.A.). The trial judge also placed considerable reliance on this authority.
The Crown’s submission would appear to track the reasoning in McFadden, supra. I cannot, however, subscribe to that analysis. The Crown bore the burden of proof throughout the trial. If the Crown’s evidence was capable of supporting the conclusion that the print was put on the box in connection with the robbery, the absence of any innocent explanation could well have made it easier for the trial judge to draw the inference of guilt. If, however, as I would hold, the Crown’s case could not reasonably support the conclusion that the print was placed on the pizza box in connection with the robbery, the failure of the appellant to offer any other explanation by way of testimony or through some other evidence is of no consequence. An appellant’s failure to testify or otherwise advance an “innocent” explanation cannot add weight to the Crown’s case so as to justify drawing what would otherwise be an unreasonable inference of guilt: R. v. LePage (1995), 1995 123 (SCC), 95 C.C.C. (3d) 385 at 396-97 (S.C.C.).
The trial judge’s finding that the fingerprint evidence could bear the full weight of the Crown’s burden flowed at least in part from his erroneous premise that fingerprint evidence was “highly inculpatory evidence”. The trial judge should have started from the premise that the probative value of the fingerprint evidence depended upon whether there was other evidence capable of permitting a reasonable inference as to when the fingerprint was placed on the pizza box.
Count 1:
[216] As Epstein J.A. noted in D.D.T., while fingerprint evidence is powerful evidence that the person whose print is on the object touched that object, the connection with the crime will depend on the existence of other evidence that the accused touched the object at the relevant time and place. Epstein J.A. references the decision of Doherty J.A., in Mars, at para. 19.
[217] In Mars Doherty J.A. sets out that the probative value of fingerprint evidence depends on the totality of the evidence. Is there other evidence capable of permitting a reasonable inference as to when the fingerprints were placed on the object – in this case, the suitcases?
[218] On this count, the strength of the fingerprint evidence must be considered within the context of the evidence on Count 1 in its totality. When the evidence is considered as a whole, the strength and reliability of the fingerprint evidence is diminished to such a degree that it raises a reasonable doubt about the guilt of Guthrie on this count. The evidence that supports this conclusion consists of the following:
Ms. Morris testified that Guthrie contacted her sometime in January about her trip to Carnival in Trinidad after Bernard and Everett Brissett were arrested. The Brissetts were arrested on January 24, 2014. This would, therefore, place the time of her meeting with Guthrie after January 24, 2014. The information recorded on Guthrie’s passport and PAXIS traveller query has Guthrie in Bermuda from January 21, 2014 to January 30, 2014.
Ms. Morris testified that she believed it was sometime in January but she could not specify the exact date. She said it was sometime before she left. The testimony of Ms. Morris is unreliable on this point and is not supported by the passport and PAXIS information.
Ms. Morris testified that while she was in Trinidad, Guthrie returned the bags containing the cocaine to her on March 5, 2014, the night before she left to fly back to Canada. In cross-examination by Mr. Cooper for Guthrie, she was very direct and clear that it was March 5, 2014 when Guthrie brought her the bags. As I set out earlier in my review of the exchange with Mr. Cooper, Ms. Morris testified she looked at Guthrie “eye to eye” two and a half feet away from each other. Ms. Morris was definite, “I saw Greg the night before I left Trinidad, yes, I did.”
I cannot and do not accept Ms. Morris’ testimony that she met with Guthrie on March 5, 2014. The travel records associated with Guthrie confirm that Guthrie was already in Toronto on March 5, 2014. The PAXIS traveller query shows that he arrived in Toronto on March 5, 2014 at 11:55 a.m. He was not in Trinidad on the night of March 5, 2014.
I do not accept the Crown’s position that Ms. Morris made an honest mistake on the March 5 date. The transcript clearly establishes that she was definite and unshaken about the March 5 night before she left meeting with Guthrie. That testimony is not credible. Guthrie was not and could not have been the person she met with the night of March 5, 2014 in Trinidad.
In her statement to the police on March 6, 2014, after her arrest, (Exhibit 90), at no time prior to 1:19 a.m. does she mention the involvement of Guthrie, either by his name, Guthrie, or by his nickname, “Bulldog”.
If, as she testified, it was Guthrie who gave her the bags in January and then met with her on March 5, 2014, the night before she left Trinidad, it would have been important and reasonable to have mentioned his name at the outset of her interview on March 6. After all, according to Ms. Morris, she had met with Guthrie the night before.
During her statement on March 6, 2014, she mentions the names Renee, Melissa, Lexi and Kenny at 21:36. At 22:45, she mentions Renee and Kenny again. She speaks about Renee’s involvement in the importation. She is very scared and did not want to talk about Kenny. She was upset and crying.
It is important to note that Renee is intimately involved with Everald Brissett.
It is only after Ms. Morris’ mother attends at the police station and spoke to D/C Smith that the name Bulldog is even mentioned. At no time does Ms. Morris tell D/C Smith, that as recently as the night before, Guthrie was in Trinidad with her bringing her bags filled with cocaine.
The continuity of the exhibits and the Temporary Locker (TL) numbers is problematic as well. Cst. Dionne confirmed that there was a discrepancy regarding the TL’s in his notebook, but could not provide an explanation for the discrepancy. The Crown submits that this discrepancy in his notes was just a misprint. Cst. Dionne did not testify that it was a misprint. He could not provide any explanation for the discrepancy.
The AFIS report was never filed as evidence at trial. Sgt. Scarlett’s testimony has to be considered carefully. I reviewed extensively some of the testimony of Sgt. Scarlett. Sgt. Scarlett acknowledged the following:
He was advised of the AFI’s match prior to doing his analysis. There is some concern, in my view, that confirmation bias could have played a role in influencing Sgt. Scarlett’s final conclusions.
The C216 form used in his comparison contained the name Greg Malcolm Guthrie. Guthrie’s middle name is McLaren, not Malcolm
Fingerprints cannot be dated so there is an evidentiary gap as to when the prints would have been placed on the bags.
Sgt. Scarlett acknowledged he only compared a portion of the actual fingerprint. He could not say the fingerprint represents (or “shows”) the entire width of the fingerprint.
With respect to the unknown fingerprint, there was no obvious scarring. When asked in court to look at Guthrie’s finger, Sgt. Scarlett confirmed that there appeared to be a scar in the left portion of the ring finger at the very tip of the finger. On the C216 form only the left ring finger scar was present.
[219] In addition to this troubling evidence I have just reviewed and that causes the court considerable concern, I also have to consider Guthrie’s testimony itself. In essence, Guthrie denied any involvement in this importation. He acknowledged in a forthright manner that he knew Ms. Morris because their families live close together in Jamaica. He did not try to distance himself from knowing her. He also acknowledged travelling to Trinidad in 2014 for Carnival and had been to the Carnival twice before.
[220] The items seized during the search of Guthrie’s residence after the October 24, 2014 importing are pieces of evidence applicable to all four counts. As such, I will deal with the search warrant at this time. The items seized included the following:
Officer Limsiaco located under the sink carbon paper (similar to that kind of wrapping the drugs were in), cellophane bags, adhesive, a scale, and a vacuum sealer. All of these items were located together in a blue gym bag
Officer Gomes located a money counter
Officer Souvandy located a Blackberry, a computer and a note referencing the shipment of vacuum sealers to Trinidad
Officer MacDougall seized $53,875.00 in cash.
[221] It is important to note that the video of the search and the photos taken during the search were lost by the police.
[222] In a separate ruling, I dismissed Guthrie’s application for a stay of proceedings and exclusion of the evidence seized during the execution of the search warrant. I concluded that the significance of the lost evidence will be considered by the court within the context of the trial proper and considering the total body of evidence called at trial.
[223] Guthrie testified about the items found in his residence and I have set out in significant detail the transcript of his explanations. Guthrie’s testimony in that regard has to be considered within the context of Det. Ross’ testimony and considering the absence of evidence of the video of the search and the lost photos.
[224] I agree with Guthrie’s position that there are numerous difficulties with the execution of the relevant search warrants as set out by Guthrie in his closing written submissions at pages 9 to 11. It is useful to reproduce these again:
A search warrant for Guthrie’s home was executed on October 29, 2014. No drugs, contraband or anything illegal was found. The items seized consisted of bank documents, travel documents, electronic devices such as cell phones and laptops, suitcases, currency, money counter, vacuum sealer, digital scale and cellophane rolls.
All of the search officers testified in court that the scene was videotaped prior to and following execution of the search warrant by Detective Constable Romano. Sergeant Brons also took photographs of the money seized. Without reasonable explanation, the videos and photos from the search warrant execution have been lost. Interestingly, Detective Constable Romano testified that the camera contained videos dating back to 2012, yet the videos from 2014 search of Mr. Guthrie’s home are missing. Without these videos and photos, the continuity of the seized items has not been established.
Mr. Guthrie’s testimony contradicts that of the search officers regarding the location of several significant items seized, specifically the “drug packaging equipment” found in an Adidas bag under the sink in the kitchen. Without the videos, there is no conclusive evidence of where the items were actually kept. For example, Mr. Guthrie testified that the vacuum sealer was on top of the kitchen counter. The video would definitely have caught that since Det. Cst. Romano agreed that he would pan the camera to the walls, furniture, ceiling and floor.
Constable MacDougall handled the exhibits seized from Mr. Guthrie’s home. Of significance is Toronto Police Services property bag No E190403, which contained the purported “drug packaging equipment” found by Officer Limsiaco. MacDougall testified that the property bag was sealed. Detective Constable Romano confirmed MacDougall and testified that the only exhibits that were not sealed were the suitcases. However, in the photos of the items seized from Mr. Guthrie’s home on page 7 of 9, the cellophane rolls are clearly outside of the sealed bags. Yet somehow, once again, the items from the blue Adidas bag are back in the same sealed property bag when brought to court. Romano had no explanation and could only confirm that the property bags were given to him already sealed. It is interesting to note that Sergeant Gomes, who testified after Romano, claimed that he did not recall whether the items he seized from the home were sealed into property bags on scene. Similarly, Sergeant Brons, who also testified after Romano, claimed that he would sometimes seal property bags and he sometimes would not and he did not recollect what he did on this specific occasion. It was only when he was confronted with the information that Romano would only accept sealed bags that he said the bag must have been sealed.
MacDougall counted the currency seized from Mr. Guthrie’s home and vehicles. On November 14, 2014, the money seized from the Yukon vehicle totaled $1440. On November 21, 2014, the money seized from the house totaled $53,875. Mr. Guthrie testified that there had been $130,000 in his home at the time of the search warrant. This is a significant discrepancy. Without the photographs taken by Brons, we do not have conclusive evidence of the actual amount of money found in Mr. Guthrie’s home.
Sergeant Gomes was responsible for loading Mr. Guthrie’s vehicles onto the two truck. In order to preserve the integrity of the vehicles, they either have to be sealed or followed to the police facility. Gomes testified that he did not see seals on the vehicles and he did not notice whether the two trucks were followed. Constable Waite testified that he would be concerned if the vehicles were not followed. Once again, the continuity of these vehicles and the items found within are therefore compromised.
Detective Ross, the Crown’s drug expert, testified about the significance of the items found during the search warrant execution. He stated that the items found together in the Adidas bag lead to an inference of drug trafficking. All of those items – carbon paper, adhesive, gloves, scale, vacuum sealer, ziplock bags, elastic bands, glue gun – are used in the drug trade. However, it is important to remember that Mr. Guthrie provided a reasonable and innocent explanation for each item and Mr. Guthrie also testified that those items were not placed together.
In these reasons I will not engage in any analysis with respect to the cash seized at the home. Guthrie submits that funds were taken by the police. I cannot make any findings or conclusions on this issue, nor is it necessary for me to do so.
Conclusion on Count 1
[225] I am not satisfied that the Crown has proven this count beyond a reasonable doubt. I have considered all of the evidence, including Guthrie’s testimony. It is not necessary that I accept all of Guthrie’s testimony. At the very least it leaves me with a reasonable doubt. Further, the absence of evidence relating to the video of the search and photos factors in to my assessment of Guthrie’s testimony. The blue Adidas bag was never produced at trial. Guthrie provided an explanation for the items located at his residence by the police. Clearly, the video of the search would have or should have captured the location of these items in his residence. The location of the blue Adidas gym bag containing the items found would have or should have been evident in the video. Det. Ross relied on the fact that the items were found together and this fact anchored his conclusion that an inference could be drawn that those items, all found together, were tools of the drug trade.
[226] As I indicated at the outset, and as set out in D.D.T and Mars, while fingerprint evidence can be powerful and compelling evidence, the probative value of fingerprint evidence depends on the totality of the evidence called at trial relevant to this count. In Villaroman, Cromwell J clearly stated that “a reasonable doubt or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added).”
[227] Cromwell, J goes on to say that “of course the line between a “plausible theory” and “speculation” is not always easy to draw. But the question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.”
[228] Considering the evidence in its totality, the Crown has failed to meet its onus to establish beyond a reasonable doubt that Guthrie was responsible for or one of the persons responsible for the importation of cocaine into Canada on March 6, 2014.
[229] Accordingly, there will be a finding of not guilty on Count 1.
Ruling Re: Stay Application on Count 1
[230] Despite the fact that I have found Guthrie not guilty on Count 1 on the Indictment, it is my view that it is necessary to deal with a related Stay Application. Guthrie seeks an Order granting a Stay of Count 1 relating to the March 6, 2014 importation on the basis of late disclosure.
[231] In order to place the significance of the late disclosure in context, it is necessary to review the chronology of how the disclosure was made along with the details of the late disclosure provided.
[232] The late disclosure relates to Annecia Morris. Her evidence was reviewed in my reasons for judgment on this count. Ms. Morris testified at the preliminary inquiry on July 7, 2016. Ms. Morris testified at the trial of this matter on April 24, 2017.
[233] The trial with respect to Guthrie and Griffith took place from April 10, 2017 to May 12, 2017. A lost evidence application was heard on June 1, 2017. Closing submissions were completed on September 7 and 8, 2017.
[234] During an email exchange on October 4, 2017 between Mr. Cooper, counsel for Guthrie, and the trial Crown, James Clark, Mr. Cooper was advised that the Crown had not provided the following disclosure:
March 24, 2016 notes of the Officer in Charge, Constable Waite.
April 18, 2016 Notes of Cst. Waite.
April 20, 2017 Notes of Cst. Waite.
[235] The three dates of notes set out the following:
2016-03-24
09:45 -Attended Crt. For GUTHRIE + GRIFFITH Prelim. CROWN facilitating adjournment as per defence.
Did not see Grey in attendance.
SOVEY waiting outside Crt RM.
Asked by Crown to attend CRT Rm 201 interview room because MORRIS was upset and being looked after by CRI security.
Found MORRIS with Peel Officers CST. CAMBOT CLARKE. MORRIS was crying and upset as she described her interactions with GUTHRIE, BRISSETT + FAMILY.
11:23 - I relieved the Peel Officers, CROWN, Chris WALSH was in/out of room. Door was ajar and equipped with a window. Asked MORRIS to reiterate her details concerning any threats.
- MORRIS → GUTHRIE
(1 week after MORRIS release) GUTHRIE told Morris she was set up.
- GUTHRIE would no longer take MORRIS’ calls.
- BRISSETT → MORRIS
Brissett told MORRIS he didn’t know what happened (concerning her arrest) BRISSETT made arrangements to replace MORRIS’ kids clothing.
(HALLOWEEN 2014) MORRIS realizes that it was GUTHRIE that was responsible for her arrest.
BRISSETT stopped taking her calls and she became concerned for her safety. (Summer 2015).
DECEMBER 2015
(1964-12-12 54 years old)
MORRIS → Uncle DONOVAN GRANT. Just released from prison in Jamaica. Asked MORRIS (over phone from Jamaica) how her case was going.
Told MORRIS that he was starting a business with GUTHRIE so it would be good to keep him out of jail. He suggested to MORRIS to testify for Guthrie rather than against him.
When MORRIS disagreed, he used a different cousin as an eg. Of someone just doing their time. The cousin did 6-8 yrs in London ENG. For the same offence.
When MORRIS got angry @ her uncle he said that this was a good way to end up in a body bag.
MORRIS hung up.
- 10 mins later GUTHRIE → MORRIS
MORRIS described GUTHRIE as smooth talking “sweet as sugar”
MORRIS said her lawyer told her the police were tapping her phone line. So MORRIS accused GUTHRIE of organizing the cocaine, but he wouldn’t talk about it. He offered her money for her lawyer. MORRIS refused. GUTHRIE said he would call back.
- MORRIS said on a day after, she came home to 30 missed calls from GUTHRIE.BRISSETT – MORRIS Brissett →”greg just called” Brissett played a recording of GUTHRIE leaving an angry message for BRISSETT. MORRIS did not recognize the #.
GUTHRIE →BRISSETT (From MORRIS’ memory) “You’re always to quick to believe what other people tell you. I tried to delay MORRIS’S case to avoid you getting called back up.
Guthrie threatened BRISSETT and then told BRISSETT to remind “the bitch” (MORRIS) about how he shot someone @ the PARADISE Club (about 15 years ago). MORRIS witnessed the shooting.
MORRIS changed her phone # in Jan 2016. No one has called since.
MORRIS has 4 kids.
Safety Plan
She was hiring a new lawyer, and once she speaks with him/her would let me know if she would give another official statement.
RTP
2016-04-18
GUTHRIE/GRIFFITH prelim. Contesting committal
GRIFFITH NO SHOW. ADJOURNMENT TO TOMORROW.
2017-04-20
09:15@Brampton Crt to escort a witness. Project OFOCUS/witness MORRIS.
12:00 RTO
ADMIN
16:00 off duty
[236] Guthrie relies on the following grounds to justify his position that in these circumstances a stay is warranted:
If he had been in possession of this disclosure prior to Morris testifying he would have asked her additional questions to demonstrate her lack of credibility.
Guthrie was denied the opportunity to obtain independent evidence to establish that Morris is a liar. One example of this relates to obtaining police file with respect to the alleged shooting 15 years ago that Morris attributes to Guthrie.
Guthrie was deprived of the knowledge that Cst. Waite wanted to take a second statement from Morris. Cst. Waite wanted to commit Morris to a sworn statement signifying the importance of this new information. Morris refused to confirm this new information under oath. Guthrie was deprived the opportunity to explore all of this in his cross-examination of Morris.
Morris told Cst. Waite on March 24, 2016 that her lawyer told her that her phone was being wiretapped. Upon learning this Morris called Guthrie and accused him of organizing this importation. According to Morris, Guthrie did not make any admissions about the importation but offered to pay for her legal defence. Guthrie argues that this is an area of cross-examination that would have been important. [Morris was arrested on March 6, 2014. At trial her testimony was that on March 5, 2014 Guthrie had been in Port of Spain with her and provided to her the suitcases containing the cocaine. Either Morris lied to police at the time of her arrest about her direct experience with Guthrie or she lied about calling him to confront him about his involvement.]
Further, on this point, the notes set out that it was Halloween 2014 that Morris realizes that Guthrie was responsible for her arrest. This would have been an area of important cross-examination. If she testified at trial he was with her on March 5, 2014, giving her the suitcases filled with cocaine how could it even be possible that she only realizes Guthrie’s responsibility for this “during” or “on” Halloween 2014, almost eight months later?
If Cst. Waite received Morris’ information about a phone call with Guthrie and decided not to obtain those phone records to confirm the alleged call between Morris and Guthrie, Cst. Waite would have been cross-examined on why he did not pursue that part of the investigation. If Cst. Waite did obtain the records and there was no confirmation that Morris called Guthrie that would have been significant to further impeach Morris’ credibility.
Morris testified that she feared Guthrie. Guthrie submits that if that was true the fact that she saw Guthrie shoot someone 15 years ago is something she would have told the court about. Guthrie was denied the opportunity of demonstrating that the shooting incident is a fabrication.
Guthrie would have established that Morris is a liar and that in doing so a Vetrovec Warning would have been required for her testimony.
Guthrie submits that he has been denied a fair trial and his ability to make full answer and defence has been compromised.
Guthrie submits further that the prejudice cannot be remedied by recalling Morris or calling other witnesses for additional questioning. Guthrie testified at trial. Counsel’s tactical choices may have been different had this disclosure been available prior to trial. Those decisions cannot be revisited as the trial is over. Guthrie challenged the evidence on this count based on the disclosure he had.
[237] Guthrie argues that in all of these circumstances the only appropriate remedy is a stay of proceedings.
Position of the Crown:
[238] The Crown submits that the additional disclosure set out in the notes of Cst. Waite add nothing new about the allegations relating to this charge. The Crown argues that nothing in the notes nor any cross-examination on them could have any possible bearing on the outcome.
[239] The Crown submits that a finding that the right to disclosure has been breached does not, on its own, result in a remedy. In R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244 the Court set out the following at paras 22 to 24:
The obligation resting upon the Crown to disclose material gives rise to a corresponding constitutional right of the accused to the disclosure of all material which meets the Stinchcombe threshold. As Sopinka J. recently wrote for the majority of this Court in R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, at p. 106:
The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice.
Thus, where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter right to disclosure.
However, a finding that an accused’s right to disclosure has been violated does not end the analysis. As Sopinka J. wisely observed in Carosella, supra, at p. 100, an appellate court must be careful not to “confus[e] the obligation to establish a breach of the right [to full answer and defence] with the burden resting on the appellant in seeking a stay”. Similarly, the initial test which must be met in order to establish a breach of the right to disclosure is analytically distinct from the burden to be discharged to merit the remedy of a new trial. The right to disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial. It follows that the Crown may fail to disclose information which meets the Stinchcombe threshold, but which could not possibly affect the reliability of the result reached or the overall fairness of the trial process. In those circumstances there would be no basis for granting the remedy of a new trial under s. 24(1) of the Charter, since no harm has been suffered by the accused.
It will be necessary later to explore in greater depth the nature of the burden to be discharged to merit a new trial. Now it will suffice to observe that for the purposes of this first stage of the analysis, an appellate court may well find that an accused’s Charter right to disclosure has been breached, and yet deny the remedy of a new trial if it is found that the trial process was fundamentally fair and that there was no reasonable possibility the result at trial might have been different had the undisclosed material been produced. The right to full disclosure is just one component of the right to make full answer and defence. It does not automatically follow that solely because the right to disclosure was violated, the Charter right to make full answer and defence was impaired.
[240] In R. v. Spackman 2012 ONCA 905, 295 C.C.C. (3d) 177, the Ontario Court of Appeal noted the following at para. 137:
First, a failure to disclose, as well delayed or late disclosure, without more, does not violate the right of an accused to a fair trial. As a general rule, an accused must go further to show actual prejudice to his or her right to make full answer and defence: Bjelland, at para. 21; O’Connor, at para. 74. Absent an infringement of the right to make full answer and defence, no infringement of either s. 7 or s. 11(d) of the Charter has occurred, thus the critical condition precedent to the operation of s. 24(1) as an exclusionary mechanism remains unsatisfied and access to the remedy s. 24(1) provides is unavailable.
[241] The Crown submits that only if the court finds that there was a reasonable possibility that undisclosed material could affect the overall fairness of the trial would the court then consider the appropriate remedy. The question is whether the defence has established on a balance of probabilities that his right to make full answer and defence has been irreparably prejudiced.
[242] The Crown submits that when these nine pages of notes are considered, the Court should have no difficulty in concluding that the notes’ contents could not possibly affect the overall fairness of the trial process. The Crown points to the following factors in support of his position:
Possible Future Statement
- Any suggestion that Morris’ failed to give Cst. Waite a further sworn statement has no probative value. She has a right to remain silent having been charged with the serious offence of importing. In addition to that, Cst. Waite’s opinion of Morris’ truthfulness is irrelevant.
The Threat and Allegation of Shooting by Guthrie 15 Years Ago
The Crown argues that Morris’ evidence on this point would have been inadmissible. The Crown would not have been able to lead that evidence. It is bad character evidence prejudicial to Guthrie.
Also on this point, the Crown submits that Guthrie would not have been able to pursue the police file on this allegation and would have been prohibited from calling the evidence as it offends the collateral fact rule.
Telephone Contact with Guthrie
- The Crown submits that this evidence is also collateral. The police did not seek any phone records to confirm Morris’ account. Morris was under no obligation to provide her phone number to the police and she no longer had that number as set out in the notes. Even if the police had the number it is not clear whether the police could have obtained a warrant by establishing that the records were relevant to the commission of an offence.
No Impact on Trial Strategy
Guthrie’s strategy was to call Morris a liar and he was able to do so in cross-examination and his closing submissions. Nothing in the late disclosure notes could possibly have changed that approach.
The threats received by Morris were dealt with at the preliminary inquiry. Guthrie did not pursue this line of inquiry at trial, which was the right approach for Guthrie to take.
Further, the issue of when Morris came to believe Guthrie was involved was fully explored at the preliminary inquiry. Guthrie was well aware that Morris testified that she did not know Guthrie was behind the cocaine until he was arrested in October. Guthrie chose not to cross-examine Morris at trial on this area. Nor did counsel pursue after the fact discussions.
[243] In its Factum, the Crown submits that should the court find that Guthrie has been prejudiced, there are multiple other remedies short of a stay. The court could permit Guthrie to call back Morris and other witnesses for further examination. The court could also order a mistrial and subsequently order a new trial on Count 1.
[244] At the hearing of the application, the issue of lesser remedies was put to the Crown. The court inquired about the impact of s. 11(b) of the Charter if a mis-trial was granted and a new trial ordered or if Morris and others were recalled to testify. The court questioned when that could take place, again within the s. 11(b) time line, under the new Jordan 2016 SCC 27, [2016] 1 S.C.R. 631, framework. Further, as Guthrie had already testified at his trial, the court asked what the impact of these lesser remedies would be on that decision and whether it would be necessary for him to testify again and be subjected to further cross-examination by the Crown.
[245] The Crown acknowledged, and rightfully so, that a consideration of any lesser remedy would be, to use his words, “a can of worms”.
[246] It became clear that the Crown’s position is, it is either a stay or it is not. There really is no halfway house on remedy. The defence agreed with that assessment.
Analysis and Conclusion
[247] In R. v. M.G.T. 2017 ONCA 736, 141 W.C.B. (2d) 715, Watt, J.A. reviewed the issue of late disclosure and trial fairness at paras. 120 to 125 as follows:
Where evidence proposed for admission on appeal has to do with information that was not disclosed prior to trial, an appellant must first establish that the undisclosed information meets the Stinchcombe standard and thus amounts to a breach of the appellant’s constitutional right to disclosure: R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at para. 22; R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 61; T.S., at para. 123.
Provided the undisclosed information satisfies the Stinchcombe threshold, thus the failure to disclose it establishes a breach of the appellant’s constitutional right to disclosure, the appellant must next establish, on a balance of probabilities, that the disclosure failure impaired the appellant’s right to make full answer and defence: Dixon, at para. 33; T.S., at para. 124.
To establish on a balance of probabilities that the failure to disclose impaired their right to make full answer and defence, an appellant must demonstrate that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process: Dixon, at para. 34; R. v. C.(M.H.), 1991 94 (SCC), [1991] 1 S.C.R. 763, at p. 776.
To appraise the impact of the disclosure failure on the reliability of the trial result, we must consider whether there is a reasonable possibility that the undisclosed evidence, when considered in the context of the trial as a whole, could have had an impact on the verdict rendered: Taillefer, at para. 82; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 65; Dixon, at para. 36.
To evaluate the impact of the disclosure failure on the overall fairness of the trial process, we must assess, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if timely disclosure had been made: Dixon, at para. 36; Illes, at para. 65; Taillefer, at paras. 83-84.
An important factor in considering the impact of a disclosure failure on the overall fairness of the trial process is the diligence of defence counsel in pursuing disclosure from the Crown. A lack of due diligence in pursuing disclosure is a significant factor in determining whether the Crown’s non-disclosure affected the overall fairness of the trial process: Dixon, at para. 37. Indeed, where defence counsel knew or ought to have known of a disclosure failure or deficiency on the basis of other disclosures, yet remained passive as a result of a tactical decision or lack of due diligence, it is difficult to accede to a submission that the disclosure default affected the overall fairness of the trial: Dixon, at para. 38; R. v. McAnespie, 1993 50 (SCC), [1993] 4 S.C.R. 501, at pp. 502-503.
[248] M.G.T. deals with a different factual matrix then the case at bar. Watt J.A. concluded that trial fairness had not been compromised and set out his conclusion at para. 155 as follows:
Assessing the potential impact of the non-disclosure on the overall fairness of the trial proceedings involves a process of weighing and balancing. In this case, there can be no doubt that defence counsel knew of the 911 call. He also knew the identity of the caller. A police officer who responded to the home testified that he did so in answer to a 911 call. The officer had included this event in his notes disclosed to defence counsel in advance of trial. K.C. testified that he made the 911 call. Yet, despite knowledge of the existence of the call, defence counsel, who is not said to have provided ineffective assistance, did not seek disclosure of the call or complain that it had not been disclosed. In these circumstances, especially in the absence of any explanation from trial counsel, I simply cannot accede to a submission that the failure to disclose affected the fairness of the appellant’s trial.
[249] I start my analysis with reference to Morris’ trial testimony relating to her contact with Guthrie on March 5, 2014. As I set out earlier in my reasons for judgment on this count, Morris was clear that while she was in Trinidad Guthrie took her suitcases on the second day of her trip and he returned them to her the night before she left Trinidad, that is March 5, 2014. She was very certain of this timeline.
[250] In her statement to the police on March 6, 2014 (the very next day), she states at 1:19 p.m. that Bulldog orchestrated the whole thing. It makes no sense in those circumstances that it only became clear to her on Halloween 2014 that she “realizes that it was Guthrie that was responsible for her arrest”. Why would she have to wait until October 2014, Halloween, after Guthrie is arrested to make that determination if, as she testified at trial, Guthrie gave her the bags with the cocaine on the night of March 5?
[251] I do not agree with the Crown’s position that cross-examination on this aspect of her testimony as disclosed in the notes would not be relevant or probative. There would have been a reasonable possibility that further cross-examination would have resulted in further impeachment of Morris’ credibility on Guthrie’s involvement.
[252] The Crown points to the preliminary inquiry testimony to suggest that Guthrie already knew this timeline. In her preliminary inquiry, Morris testified as follows:
A. …but when I got, uh, released from jail and I call Guthrie, I ask him, “What just happened?”
Q. Right.
A. “What happened?” Why am I in this trouble?” He said, “Somebody hate you, set you up