COURT FILE NO.: 1352/15
DATE: 20180524
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANNECIA MORRIS
Counsel:
A. Wiese, for the Crown
M. Chernovsky, for the Defendant
HEARD: May 23, 2018
BEFORE: MILLER J.
[1] Annecia Morris is charged with Importing Cocaine into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act.
[2] The admitted facts are:
On March 6, 2014 Annecia MORRIS arrived at Pearson International Airport from Port of Spain, Trinidad. She had been in Trinidad for one week.
Annecia Morris was travelling with her four children – Elijah, Miriam, David and Noah – aged 10, seven, five and three-years old, respectively. Morris had eight pieces of luggage with her. All eight suitcases were found to contain cocaine, which was seized by officers from the Canada Border Services Agency, and then by the Royal Canadian Mounted Police. The following chart sets out the details regarding each piece of luggage.
| Number | Bag Description | Quantity of Cocaine |
|---|---|---|
| 1 | Brown “MORANO” suitcase Baggage tag name MORRIS/MIRIAM, and number 0106 BW 399898 |
5459 grams |
| 2 | Brown “ARKADIAN” suitcase Baggage Tag name “MORRIS/ANNECIA” and number 0106 BW 399884 |
4274 grams |
| 3 | Black “MORANO” suitcase Baggage Tag name “MORRIS/MIRIAM” and number 0106 BW 399916 |
5345 grams |
| 4 | Black “MORANO” suitcase Baggage Tag name “MORRIS/ELIJAH” and number 0106 BW 399889 |
4402 grams |
| 5 | Blue “ARKADIAN” Suitcase Baggage Tag name “MORRIS/DAVID” and number 0106 BW 399925 |
5601 grams |
| 6 | Black “MORANO” suitcase Baggage Tag name “MORRIS/ANNECIA” and number 0106 BW 399896 |
5248 grams |
| 7 | Black “MORANO” suitcase Baggage Tag name “MORRIS/ELIJAH” and number 0106BW 399872 |
5205.5 grams |
| 8 | Black “MORANO” suitcase Baggage Tag name “MORRIS/DAVID” and number 0106 BW 399914 |
5148.5 grams |
The total weight of the cocaine was 40.683 kilograms
The price for a kilogram of cocaine in the Greater Toronto Area in 2014 ranged, on average, between $35,000 and $45,000. The potential sale price of the cocaine was between approximately $1,423,905 and $1,830,735 if sold by the kilogram.
Bag numbers 1, 4, and 8, as noted in the chart above, were found to contain fingerprints. Fingerprints on suitcase numbers 1 and 4 matched the fingerprints of Greg Guthrie. The fingerprint in bag 1 matched Greg Guthrie’s left ring finger, while the fingerprint in bag 4 matched Greg Guthrie’s left middle finger. None of Annecia Morris’ fingerprints were located within the baggage.
Canada Border Services Agency records show that Greg Guthrie returned to Toronto from Port of Spain on March 5, 2014.
On the night of her arrest, Annecia Morris identified Guthrie as the individual who provided the luggage to her. This was before she knew of the fingerprint evidence. She testified against Guthrie at his preliminary hearing and trial.
[3] CBSA Officer Kevin Dixon testified that on March 6, 2014 at approximately 7:50 p.m. he was observing baggage coming down a conveyor belt from the hold of an airplane that had just arrived at Pearson Airport in Mississauga. He was feeling several of the bags looking for abnormalities that might indicate hidden narcotics.
[4] On one bag he felt that it was unusually hard for soft-sided luggage. He separated this bag from other luggage, opened it and felt the back from the inside, concluding that it was unusually thick. The bag had an airline tag attached in the name of Miriam Morris. He notified other CBSA officers who then located seven other pieces of luggage with airline tags in the name Morris.
[5] Officer Dixon had a canine unit attend and the dog positively identified the first bag as containing narcotics. All eight bags were placed in the public baggage retrieval area and when Ms Morris approached with her four children, Officer Dixon, in uniform, asked her if they were her bags, if she had packed them herself and if she knew what was inside. Ms Morris replied “Yes” to each of these questions.
[6] Each of the bags was found to contain clothing and other articles. The cocaine in each was contained in a plastic bag and concealed between two pieces of plastic at the back of each suitcase beneath the cloth lining of the interior of the suitcase. The cocaine in each case accounted for roughly 25% of the total weight of each bag when it contained the clothing. The total weight of each bag was close to but not over the baggage limits as permitted by the airline.
[7] Annecia Morris testified that she had gone to Trinidad with her children at the invitation of her “cousin” Greg Guthrie, a distant relative about ten years older than her who she had known most of her life and saw regularly at family functions. Ms Morris described Mr. Guthrie as someone who was kind to her and had helped her out once or twice to cover her rent and to buy food when she had asked. She described him as someone she trusted.
[8] Ms Morris testified that Mr. Guthrie had contacted her some months before to invite her and her children to attend his wedding shower in Trinidad which would be happening at the same time as Carnaval. She testified that he said he would pay for the trip and that they would be staying at a villa with a pool together with other friends and family. Ms Morris testified that Mr. Guthrie told her that he was getting a group discount on the tickets and she did not think anything of his offer to pay because that was his style.
[9] Sometime in January 2014 Ms Morris heard that some of her other cousins had been raided by police for illegal drugs. When Mr. Guthrie subsequently contacted her to ask if she was still going to make the trip to Trinidad she told him that she thought the trip was off because the cousins could not go. Mr. Guthrie assured her that the trip was still on although the three cousins would not be able to attend but that other people would be there as he did not want to waste the money he had spent on tickets. Ms Morris agreed to go.
[10] Ms Morris told Mr. Guthrie that her luggage had been destroyed on her last trip and he told her not to buy any as he had a friend with a luggage store and he would make sure that she had luggage for the trip to Trinidad. She testified that she was surprised when he showed up with ten suitcases. She said that she did not need so many but Mr. Guthrie told her that she and each of her four children were entitled to have two bags each and reminded her that her bags had been overweight on her last trip. She agreed to take eight bags on the trip to Trinidad.
[11] Ms Morris testified that she was able to fill eight bags because she had not visited Trinidad before and so took many things for herself and for the children as she wanted to be prepared for anything. She was also excited about attending Carnaval and brought many pretty dresses to wear. She was concerned about travelling with the four young children on her own and so ensured that each bag was light enough for her to manage on her own. Ms Morris testified that she packed each of the bags herself and carried them, packed, down to the first floor of the house where she was living and out to the car to go to the airport. She testified that her mother drove her to the airport and that a separate taxi took the bags because they would not fit in her mother’s car.
[12] Ms Morris testified that Mr. Guthrie had promised that someone would pick her up from the airport in Trinidad and she was annoyed with him when no one was there when she and the children arrived. Mr. Guthrie did eventually arrive at the airport together with a man named Kenny. They took her to a guesthouse which was under construction and had open sewage nearby. Ms Morris was not impressed and asked Mr. Guthrie about the villa with the pool. He told her that because fewer people were coming he had had to make other arrangements. Ms Morris testified that she was quite rude to Mr. Guthrie about the accommodations and so when he told her to unpack the bags and that he would be taking them, she thought he was doing that because she had been rude.
[13] Ms Morris testified that she overheard Mr. Guthrie telling her son that he was taking the bags in order to fix the wheels and did not respond when her son told him that the wheels were not broken. She knew herself that there was nothing wrong with the wheels on the luggage.
[14] Ms Morris testified that no one she knew was at the guesthouse although Mr. Guthrie introduced her the first day to another woman down the hall. None of the friends and family she expected to be on the trip arrived other than one friend, Renee, who stayed with Mr. Guthrie. There never was a wedding shower and they did not attend Carnaval. Ms Morris testified that she did not have enough money to return to Canada before her scheduled return flight, and she thought of calling her mother but decided to stick out the week.
[15] Ms Morris testified that she did not see Mr. Guthrie again during the week she was there until the second last day. That day Renee came with Kenny to take Ms Morris and the children to the beach. Ms Morris testified that it was a three hour drive to the beach – on the way they passed the carnival celebrations – and when they got to the beach the water was dirty so she asked to return.
[16] When Ms Morris returned to the guesthouse Mr. Guthrie brought back the empty suitcases. When he left the room she began inspecting them – both the wheels of the bags which she knew had not needed repair and also the interior of the suitcases. She testified that she unzipped the lining of each bag. Mr. Guthrie caught her doing this and told her there was nothing in the bags and that she should repack her stuff. When he left, she continued her inspection of each bag. She testified that there was nothing in any of the bags and she noticed nothing unusual about any of them.
[17] Ms Morris testified that she did repack the clothing into the bags, and left the next morning. A woman named Melissa took them to the airport in Trinidad. Ms Morris testified that she did not notice anything different about the bags from when she had brought them. She did not notice anything unusual about the back of the bags and did not notice any bulging. She testified that in handling the bags she did not notice anything different about their weight. At the airport she was not told that any of the bags was overweight.
[18] Ms Morris testified that until this incident she trusted Mr. Guthrie and would not have believed that he would have used her in that way. She testified that she was threatened before and after testifying at Mr. Guthrie’s preliminary hearing and trial but testified anyway.
Analysis
[19] The Court must determine as to whether the charge has been proven beyond a reasonable doubt by assessing the evidence of Annecia Morris in accordance with the direction given by the Supreme Court of Canada in R. v. W. (D.) 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26.
[20] That decision indicates at paragraph 28:
First, if I believe the evidence of the accused, I must acquit
Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit
Third, even if I am not left in doubt by the evidence of the accused, I must be satisfied beyond a reasonable doubt on the basis of the evidence which I do accept, of the guilt of the accused.
[21] The Crown submits there is evidence upon which I could find that Annecia Morris was complicit with Greg Guthrie in bringing the cocaine into Canada. While not his strongest argument, the Crown submits that it would be unlikely that anyone would entrust such a significant amount of cocaine, with such a significant monetary value, to anyone who was not aware of its presence in the bags.
[22] Counsel for Ms Morris submits it is much more likely that Mr. Guthrie did not tell Ms Morris of the presence of the cocaine as she would be less likely to display nervousness when passing through customs if she was unaware.
[23] To accept the Crown’s position in this regard I would have to reject Ms Morris’ testimony in it’s entirely. I do not.
[24] In the alternative, the Crown submits that I should find Annecia Morris was wilfully blind as to the presence of the drugs in the suitcases, and did not take sufficient reasonable steps to assure herself that they were not there.
[25] In this the Crown relies on the statements of law on wilful blindness in the Ontario Court of Appeal decisions in R. v. Lagace 2003 CanLII 30886 (ON CA), [2003] O.J. No. 4328 and in R. v. Rashidi-Alavije [2007] O.J. No. 4005.
[26] In Lagace at paragraph 28, Doherty J.A. indicated:
Culpability on the basis of wilful blindness rests on a finding of deliberate ignorance. An accused who suspects that property is stolen but declines to make the inquiries that will confirm that suspicion, preferring instead to remain ignorant is culpable. Where an accused makes some inquiry, the question remains whether that accused harboured real suspicions after that inquiry and refrained from making further inquiries because she preferred to remain ignorant of the truth. Where some inquiry is made, the nature of that inquiry will be an important consideration in determining whether the accused remained suspicious and chose to refrain from further inquiry because she preferred to remain deliberately ignorant of the truth. For example, a finding that an accused took all reasonable steps to determine the truth would be inconsistent with the conclusion that the accused was wilfully blind: R. v. Mara, 1997 CanLII 363 (SCC), [1997] 2 S.C.R. 630 at para. 51.
[27] In Rashidi-Alavije the Court of Appeal approved the jury instructions as follows:
What is "wilful blindness" in this context? Where a person has become aware of the need for some inquiry about whether there was a prohibited drug in the suitcase or the item, in this case a suitcase, but declines to make the inquiry because he does not wish to know the truth, or would prefer to remain ignorant, in other words, is "wilfully blind" to the facts, the law still holds that person criminally responsible, as if he had actually knowledge. Wilful blindness is the state of mind of someone who is aware of the need to make an inquiry and deliberately fails to do so. It is imputed knowledge.
However, mere negligence or recklessness is not enough. Wilful blindness is a higher standard than either negligence or recklessness. The person must be aware of the need to make an inquiry about whether prohibited drugs were concealed in the suitcase, but decided not to because they did not wish to know the truth and preferred to remain ignorant. You may ask: "Did the accused shut his eyes because he knew or strongly suspected that asking would fix him with knowledge?" Wilful blindness is the state of mind of someone who is well aware of the need to make an inquiry and then deliberately fails to do so because they do not want to know the truth. They prefer to remain ignorant. As I stated a minute ago, wilful blindness is equivalent to actual knowledge; it is imputed knowledge.
In summary, the real issue to be decided on all of the evidence is whether Mr. Rashidi actually knew or was wilfully blind to the fact that he was carrying an illegal drug. You and I have no way of opening up a person's head and looking into their mind and reading what is going on. As a result, you determine a person's knowledge on the basis of an inference you draw from the conduct, statements and activities of the accused viewed in the context of all of the surrounding circumstances.
[28] The Court held that Mr. Rashidi-Alvije was properly found guilty at paragraph 24:
While the appellant made some inquiries, it was open to the jury to find that he still harboured suspicions. For example, there is no explanation for why the appellant failed to inquire about the smell of glue in the suitcase which must have been evident to him when he examined its contents nor why he failed to inquire about the suitcase's abnormal weight. Given these facts, and the warning from his friend that the appellant admits he received, there was ample evidence on which the jury could find that the appellant still harboured suspicions even if a basic inquiry had been conducted.
[29] There are some aspects of Annecia Morris’ testimony that are troubling. The extra cost and trouble of having to hire a taxi to take the eight bags to the airport in Canada does not seem to balance with the convenience of having eight bags. Similarly, it does not make much sense that Ms Morris would choose to have to manage eight bags of luggage in addition to four young children while travelling without any other adult assistance.
[30] On the other hand, Ms Morris’ testimony was given in a compelling manner and she volunteered information during her testimony that was not particularly helpful to her, for example that she herself had lifted each suitcase onto the weigh scales at the airport both at Pearson and in Trinidad.
[31] It is clear that Annecia Morris had significant suspicions, especially when the trip promised by Mr. Guthrie turned out to be significantly substandard to what was billed. She reasonably disbelieved the explanation given by Mr. Guthrie for the removal of the bags from the guesthouse in Trinidad. I find however that she took reasonable steps by thoroughly inspecting each bag when they were returned to her. As even the Crown concedes, the concealment of the drugs within the suitcases was “well done”. There was no evidence that anything other than the bulge in the back of the bag observed by Officer Dixon would have been apparent to anyone looking at the bags from the outside.
[32] Similarly, a visual inspection below the unzipped lining of the suitcases would also have revealed nothing unusual to an observer. This case lacks the “strong smell of glue” or anything similar that was a significant factor in the case of Mr. Rashidi-Alavije.
[33] I accept Officer Dixon’s testimony that both the solidness of the back of the suitcase, its “empty” weight and the thickness of the lining were strong indicators to him that something was hidden inside. I have a reasonable doubt, however, that those things would have been apparent to Ms Morris, as she put it, not knowing what to look for.
[34] I take into account all of the circumstances, including the fact that Ms Morris was likely distracted to some degree in her handling of the suitcases by her responsibilities to her children. In all I conclude that Ms Morris took reasonable steps to allay her suspicions, and the Crown has not proven Annecia Morris was wilfully blind beyond a reasonable doubt.
[35] Annecia Morris will be found not guilty of Importing Cocaine into Canada.
MILLER J.
Released: May 24, 2018
COURT FILE NO.: 1352/15
DATE: 20180524
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANNECIA MORRIS
REASONS FOR JUDGMENT
MILLER J.
Released: May 24, 2018