Court File and Parties

COURT FILE NO.: 17-777 DATE: 2018 12 03

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN N. Cooper, for the Crown

- and -

KEISHA COX Self-represented

HEARD: October 15, 16, 17, 18, 25, 2018

REASONS FOR JUDGMENT

TRIMBLE J.

[1] This trial is about one thing – knowledge: did Ms. Cox know (or was she willfully blind to the fact) that, when she returned from Jamaica on 23 May 2016, her bag contained cocaine?

[2] Ms. Cox exercised her constitutional right to remain silent. She called no other evidence. She took the position that the Crown had not met its burden.

Facts

[3] On 23 May 2016, Ms. Cox returned to Toronto from Jamaica on Air Canada flight 1803, landing at about 10:00 p.m. Like all other airline passengers, she filled out a blue customs declaration card. When she entered the baggage hall she put her customs declaration card into the automated border clearance machine. Ms. Cox indicated on her card that she was bringing back with her meat, fish, fruit, vegetables, etc. The machine stamped her card with the number 56 and a large A.

[4] Ms. Cox presented her card to Canadian Border Service Agent Mahil, who, on seeing the "A" on the declarations card, asked Ms. Cox what foodstuffs she was carrying. Ms. Cox said she had brought back some candies and powdered milk or baby formula for a friend. CBSO Mahil referred Ms. Cox to secondary inspection.

[5] Ms. Cox arrived in secondary inspection and presented herself to the desk manned by CBSO LeBlanc. She presented one large brown suitcase and one smaller blue or green suitcase, both of which were checked luggage on the airplane. She was asked if the suitcases were hers, if she was aware of their contents, and if she packed her own bags. She replied yes to each of these questions. She told CBSO LeBlanc that she was returning from Jamaica after visiting family and friends for a month.

[6] CBSO LeBlanc asked Ms. Cox if he could see the food items she brought back. She indicated they were her suitcase. CBSO LeBlanc examined the large bag first. In it were several prepackaged food items mixed in with Ms. Cox’s clothing. The food items comprised:

• Three soft, plastic, vacuum-sealed packages of Nestlé brand Nestum baby cereal, with a stated weight of 450 g per bag.
• One soft, plastic, vacuum-sealed package of Grace Salt Fish Fritters, with a stated weight of 270 g.
• One can of Lasco instant chocolate mix, with a stated weight of 367 g.
• One can of Caribbean dream instant chocolate, with a stated weight of 340 g.
• Two soft, plastic, vacuum-sealed packages of Choco Listo chocolate drink powder, with a stated weight of 180 g per bag.
• One soft, plastic, vacuum-sealed package of Horlick’s Original Malt, with a stated weight of 400 g.
• One Campari alcohol bottle filled with honey, and sealed with black tape.
• Seven bottles of un-opened alcohol.
• Assorted other candy.

[7] CBSO LeBlanc was concerned, initially, with the Campari liquor bottle full of honey. He decided to ask somebody if there was a test he could run on the contents of the bottle. He told Ms. Cox to await his return. CBSO LeBlanc bumped into CBSO Sakamoto, a more experienced officer, and asked if there was a test that could be used to test the honey. CBSO Sakamoto escorted LeBlanc back to the inspection bench indicating that he did not think the honey was suspicious. When they got back to the inspection bench, Sakamoto noticed the can of Lasco instant chocolate mix sitting on the counter and suggested that the can be tested.

[8] The top of the can was punctured near its rim with a utility knife. The can must have been under slight positive pressure because a small puff of white powder came out upon puncture. The white powder was tested for possible narcotics. The test returned a positive result. All of this occurred in front of Ms. Cox.

[9] After the positive test result, CBSO LeBlanc began to walk around the 7 foot long inspection bench towards Ms. Cox. As he did so he told Ms. Cox that she was under arrest for importing cocaine. CBSO LeBlanc testified that on hearing she was to be arrested, Ms. Cox blurted out words to the effect that she didn’t know what was in the can, that she bought the can that day from a store, and that she had the receipt for it. CBSO LeBlanc told her to say nothing further until he had cautioned her and provided her with her right to counsel.

[10] Ms. Cox was then taken and searched by female border guards. She was placed in their CBS cells until the RCMP arrived at which point she was transferred to the RCMP. CBSO LeBlanc advised the RCMP what had transpired, and provided them with the suitcase and its contents, including the foodstuffs and cocaine.

[11] The RCMP examined the packages containing foodstuffs. All of the foodstuffs looked un-tampered with, as though they had come from the grocery store shelf. On inspection, however, many of the foodstuff packages contained cocaine. Those packages containing the cocaine were quite sophisticated and professionally done.

[12] The packages and the cocaine they contained were:

• Choco Listo soft, plastic, vacuum-sealed package #1– 136.5 g, wrapped in double, food saver, heat sealed bags.
• Choco Listo soft, plastic, vacuum-sealed package #2 –139 g, wrapped in double, food saver, heat sealed bags.
• Grace Fish Cakes soft, plastic, vacuum-sealed package – 372.5 g, wrapped in double, food saver, heat sealed bags.
• Horlick’s Original Malt soft, plastic, vacuum-sealed package – 240 g, wrapped in double, food saver, heat sealed bags
• Lasco Chocolate Mix tin – 603.5 g.
• Caribbean Dreams Chocolate Mix tin – 303.5 g.

[13] The total weight of cocaine was 1.801 kg.

[14] The RCMP and CBSO found a receipt among Ms. Cox’s effects for the Nestlé baby food. They found no receipts for any other foodstuffs.

[15] All of the suspected cocaine was tested to identify its nature. It all tested positive for cocaine. The cocaine from the containers that was tested for purity showed that the cocaine was between 72 and 82% pure.

[16] At the close of the Crown’s case, I provided Ms. Cox with her options about testifying and leading evidence in defence. The next morning, Ms. Cox advised that she was not going to give evidence herself, nor did she intend to lead any other evidence. I, therefore, asked both parties to address in their final submissions two questions: A) what I could do legally with what CBSO LeBlanc reported that Ms. Cox after the Lasco can was punctured, and B) what they think I should do with what CBSO LeBlanc reported Ms. Cox took said. The next day in addressing this question, I asked Ms. Cox if it was her position that any statement she may have said to CBSO LeBlanc was voluntary. She said that the statements she made to CBSO LeBlanc were voluntary.

The Law

A Circumstantial Case

[17] The case against Ms. Cox with respect to what she knew about what was in her bag, with one exception, is entirely circumstantial.

[18] The Crown has put forth evidence of certain facts from which I am asked to draw an inference that Ms. Cox knew what was in her luggage. That evidence is:

1. Ms. Cox returned from Jamaica, a known transit country for drugs.
2. She had two checked pieces of luggage suitcases which she confirmed were hers, which she packed herself before leaving Jamaica, and the contents of which she was familiar with.
3. The suitcase contained a number of prepackaged foodstuffs which contained cocaine in the aggregate weighing 1.8 kg.
4. The cost of a kilo of cocaine in 2016 in Jamaica was approximately $11,000-$15,000. The cost to purchase the kilo in Canada was between $76,000 and $80,000. The street value of the 1.8 kg of cocaine in Ms. Cox’s bag, when sold at a-per ounce price of $13-$16 is approximately $144,000-$198,000.
5. The foodstuffs packages in Ms. Cox’s bag were expertly prepared. The two tins and the several soft, plastic, vacuum-sealed packages all looked as though they were taken from a store shelf. They did not appear to be tampered with. They appeared to be expertly prepared. The soft, plastic, vacuum-sealed, commercial foodstuffs packages contained cocaine which was wrapped in a food saver, heat-sealed bag placed inside a second, heat-sealed, food-saver bag, then placed inside the commercial foodstuff packaging. Someone took a great deal of time and trouble to package the cocaine.
6. After the Lasco tin was punctured releasing a small puff of white powder which tested positive for possible narcotics, CBSO LeBlanc said that he was going to arrest Mr. Cox for importing suspected narcotics, LeBlanc reported that Ms. Cox said words to the effect that she didn’t know what was in that can, she purchased it that morning from a store, and she had a receipt for it.

Ms. Cox’s Spontaneous Utterance

[19] The one exception to the circumstantial case is Ms. Cox’s spontaneous utterance to CBSO LeBlanc about not knowing what was in the can, saying that she purchased it at a store, and saying that she had a receipt for the purchase.

[20] In this case, Ms. Cox’s statement was made to a person in authority; namely, CBSO LeBlanc. Ms. Cox conceded that her statement was voluntary. This statement is an admission against Ms. Cox’s interest. Before I can find that it is admissible as an exception to the hearsay rule, I must conclude that the statement was made, that it was accurately recorded, and reported accurately at trial. See: R. v. T. (S.G.), 2010 SCC 20, [2010] 1 SCR 688. Because Ms. Cox’s statement is exculpatory in that it may help her in her defence, I must consider those remarks along with all of the other evidence even if I do not believe those remarks. See: R. v. Bucik (2011), 2011 ONCA 546, 274 CCC (3d) 421 (Ont. C.A.), at paras. 33 to 34.

[21] In this case, I accept that Ms. Cox’s spontaneous statement was made, was accurately recorded, and accurately reported. CBSO LeBlanc is required to keep notes and was not cross-examined upon their accuracy in this respect.

[22] I do not accept what Ms. Cox said to CBSO LeBlanc was true or that she believed it to be true. It defies logic that somebody would put 306 g of cocaine in a professionally sealed tin of instant chocolate mix can with a nominal weight of 367 g, and place it on a grocery store shelf where it could be purchased by anyone other than the intended purchaser. Cocaine is simply too valuable a commodity to risk that it might be picked up by a stranger. Further, Ms. Cox reported, and I believe, that she said to officer LeBlanc that there was a receipt for the purchase of the Lasco chocolate mix. I reject her statement about not knowing what was in the can based on the fact that there was no receipt for the chocolate mix found in her possession.

The Inference of Knowledge

[23] The Crown invites me to consider all of the circumstantial evidence and reach the inference that Ms. Cox knew, or was willfully blind to what was in her suitcase. That inference would lead to a finding that Ms. Cox was guilty.

[24] Ms. Cox’s submissions, as a self-represented litigant, were less clear. For the most part, she argued that the Crown had not done its job. Implicitly, some of her cross-examination and her closing arguments were aimed at the theory that she purchased all of the foodstuffs at her a store, innocently believing that they were what they purported to be. She made other arguments based on evidence that was never put in a trial, for instance that her economic circumstances were such that she did not need the money that importing and selling the cocaine would bring. I advised her that she could not make this argument absent evidence.

[25] Drug import cases are frequently based, in whole or in part, on circumstantial evidence. However, I must instruct myself about the use of circumstantial evidence, particularly where that is the only type of evidence against the accused.

[26] In R. v Griffin, 2009 SCC 28 at para. 33, [2009] 2 SCR 42, Justice Charron said:

… The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. …

[27] As well, the trial judge must take care to not draw inferences from conjecture or speculation, or to create a false or hypothetical narrative that could possibly link the primary facts to the inference the Crown wishes to be drawn by the trial judge. See R. v Aden, 2015 SKCA 59 at para. 92, 460 Sask R 98; R. v Nguyen, 2015 SKQB 387 at para. 46.

[28] Inferences consistent with innocence do not have to arise from proven facts. They can arise from common sense. See: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 35. Further, even if there is no reliable evidence to support the accused’s theory or defence offered, it can be rejected as defying common sense or reason. Circumstantial evidence need not totally exclude alternative conceivable inferences, and a verdict is not unreasonable simply because the alternatives do not raise a reasonable doubt in the mind of the trier of fact. See: Villaroman, at para. 56.

[29] Ultimately, in a circumstantial case, the evidence must be looked at in its entirety, with inferences drawn through probability. The judge must use logic, common sense, and experience to assess the inherent probabilities and improbabilities in order to determine the unlikelihood of coincidence. The accused has no obligation to demonstrate an exculpatory theory or rational explanation that should be inferred from the evidence. That would reverse the burden of proof. The burden remains on the Crown to show that any other theory or inference to be drawn from the evidence is mere speculation, conjecture or not a rational inference. See: R. v. Ukuwaba, 2015 ONSC 2953, at para. 98 to 100; R. v. Villaroman, 2016 SCC 33, at para 35 to 37; R. v. Cornick, 2016 ONSC 7941, at para. 48.

W. (D.) Analysis

[30] I must also consider the questions mandated by R. v. W.(D.), [1991] 1 SCR 742 and R. v McKenzie (1996), 141 Sask R 221 (CA); namely,

1. If I believe the accused (or in this case, the evidence favourable to the accused), I must acquit;
2. If, after carefully considering all of the evidence, I am unable to decide whom (or what evidence) to believe, I must acquit;
3. If I do not believe the evidence of the accused (or in this case, the evidence favourable to the accused), but am left in reasonable doubt, I must acquit;
4. Even if I am not left in doubt by the evidence of the accused (or in this case, the evidence favourable to the accused), I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[31] W.(D). is also a useful tool where the accused does not give evidence. It applies as long as there are credibility findings to be made between conflicting evidence called by the defence or out of evidence favourable to the accused called by the Crown. The question remains, is there reasonable doubt. See R. v. B.D., 2011 ONCA 51, at para. 114.

Credibility

[32] Credibility is a trial issue which, itself, is subject to reasonable doubt and an accused is entitled to the benefit of reasonable doubt regarding credibility: Schaff; also R. v Vuradin, 2013 SCC 38 at paras. 21 and 27, [2013] 2 SCR 639:

[21] The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8. However, trial judges are not required to explain in detail the process they followed to reach a verdict: see R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499 (S.C.C.), at para. 29.

[27] In the result, the trial judge rejected the appellant’s testimony. In Boucher, Charron J. (dissenting in part) stated that when a trial judge rejects an accused’s testimony, “it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind” (para. 59). Similarly, in R.E.M. 2008 SCC 51, [2008 SCC 51, [2008] 3 SCR 3], McLachlin C.J. stated that “the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt.” (para. 66).

[33] In this case, the Crown’s witnesses were all credible. They comprised CSBOs and RCMP Constables, all of whom gave their evidence well, relied on notes from time to time to refresh their memories about dates and other specific evidence, and were not shaken on cross-examination.

Analysis

[34] Crown counsel urges me to draw the inferences that Ms. Cox knew, or was wilfully blind to the fact that her suitcase contained cocaine. The inferences the Crown wishes me to draw are rational inferences.

[35] It appears that Ms. Cox wants me to draw the inference that she did not know what was in the can, or that I should have reasonable doubt with respect to what she knew. She advances in aid of this argument based on two lines of evidence. First, she argues that the cocaine was expertly concealed in packages of foodstuffs that looked as though they had come off the grocery store shelf. Implicitly, Ms. Cox asks ‘how was I to know or even suspect what was in those packages?’ Second, Ms. Cox argues that her demeanor throughout was pleasant and helpful, until the Lasco can was punctured, that puff of white powder came out and was identified as cocaine, and she was told she would be arrested. At that point, CBSO LeBlanc said that Ms. Cox’s demeanor changed to one of surprise. Implicitly, Ms. Cox asks ‘Are these not the reactions of someone who was genuinely surprised about what was in that can, and therefore, ignorant beforehand?’ She asks me to draw the inference that she was an unwitting dupe.

[36] It is open to me to draw reasonable inferences from the evidence. It is equally open to me to reject inferences that are not reasonable based on the evidence, and to reject the theory of the case that defies common sense and logic.

[37] I reject Ms. Cox’s suggestion that she bought the Lasco can or any of the other foodstuffs packages that contain cocaine at a store. This explanation defies logic and common sense. No one would produce 1.8 kg of cocaine, a valuable substance by any measure, go to great and sophisticated lengths to professionally conceal it in packages of foodstuffs that look as though they had been taken from the grocery store shelf, and allow them to be placed on a grocery store shelf where anybody could purchase them. The highly valuable content of those packages might end up in the hands of an innocent and unsuspecting third-party and, hence, out of the intended stream of commerce. It makes no sense. This risk is simply unacceptable for those who produce and sell the drugs.

[38] The only reasonable inference that can be drawn from the facts of this case is that Ms. Cox knew or was willfully blind to what was in her suitcase. She said that the bags were hers, that she packed them, and that she was aware of their contents. Any other theory explaining the presence of the drugs in her bags is pure speculation.

[39] I do not accept Ms. Cox’s statement to the CBSO, after she was told she was being arrested for cocaine importing, that she did not know what was in the can, and bought it recently at a store, is true. I accept that the statement was made, recorded accurately, and reported accurately. However, I conclude that the statement represents Ms. Cox’s attempt to escape liability.

[40] Evidence from others about Ms. Cox’s demeanor, likewise, raises no reasonable doubt. Her demeanor could be said to be equally consistent with guilt or innocence. However, cases addressing the use of demeanor in determining credibility have held that while demeanor is an important factor to consider, it is not the only factor. Further, it is dangerous to make a finding of credibility on demeanor, alone. People react differently in a strange environment, and to strange circumstances. Witnesses come from different cultural and social backgrounds. All of this means that the non-verbal cues may be difficult to assess. Findings of credibility should not be made on demeanour, alone. See: R. v. L.H., [2007] O.J. No. 1588 (S.C.J.), para. 83 to 86, R. v. K.A. (1999), 123 O.A.C. 161 (C.A.), para. 172.

[41] The same logic applies to the use of demeanor, alone, in these circumstances. I give her demeanour little weight. It does not raise a reasonable doubt.

Order

[42] Based on the foregoing I find that the Crown has met its burden of proof beyond a reasonable doubt that Ms. Cox knew, or was willfully blind to the contents of the foodstuff packages in her bag.

[43] A finding of guilt will be entered on the sole count on the indictment.

TRIMBLE J. Released: December 3, 2018