Court File and Parties

COURT FILE NO.: CRIMJ(F) 1602/16 DATE: 20190502

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN D. Quayat and R. Tremblay, for the Crown

- and -

NATALIA GISELLE SMITH T. Kirichenko, for the Accused

HEARD: March 26, 27, 28, 29, 2019

REASONS FOR JUDGMENT

BARNES J.

Introduction

[1] Natalia Giselle Smith and Charita Maryah Johnson are jointly charged with one count of importing approximately 3 kilograms of cocaine into Canada on August 2, 2015 and a second count of conspiracy to import cocaine. The case against Ms. Johnson was severed and she was convicted of all charges after a judge alone trial. She has been sentenced to seven years. Ms. Smith’s trial has proceeded before me as a judge alone trial. I have previously found Ms. Smith not guilty. These are my reasons.

Matters Not In Dispute

[2] On August 2, 2015, at approximately 3:08 p.m., Ms. Johnson and Ms. Smith arrived at Toronto Pearson International Airport, Terminal 1 from Montego Bay, Jamaica, on board Sunwing Flight WG759. Ms. Smith is Ms. Johnson’s aunt. They were travelling together. Both Ms. Smith and Ms. Johnson were referred to secondary for further examination by the Canada Border Services Agency. (CBSA)

[3] Ms. Johnson brought two pieces of checked luggage to the secondary examination counter. During the secondary search, approximately 2999.1 grams of cocaine was seized from one of Ms. Johnson’s suitcases by the CBSA and the Royal Canadian Mounted Police. There were no drugs found in Ms. Johnson’s second suitcase.

[4] At 6:50 p.m. on August 2, 2015, Officer Joe Gidari of Toronto Police seized a third suitcase from the Athletes’ Village during the Pan Am games in Toronto. He had been tipped off by CBSA at 6:30 p.m. that the suitcase contained cocaine and had been taken, together with other luggage, by members of the Nicaraguan Para Olympics team from the Toronto Pearson International Airport. He was given the suitcase tag number, corresponding flight number and the name Natalia Smith.

[5] Officer Gidari gave the suitcase to Border Services Officer Paul Sakamoto. A search of the suitcase revealed 997.3 grams of cocaine concealed in the suitcase.

[6] The wholesale price for a kilogram of cocaine in Jamaica is between $9,500 and $13,000. The potential sale price of 2999.1 grams of cocaine, if sold at the gram level, is approximately between $239,920 and $359,880. The potential sale price of 997.3 grams of cocaine, if sold at the gram level, is approximately between $79,784 and $119,676.

ISSUE

[7] There is no issue that Ms. Johnson and Ms. Smith imported cocaine into Canada. Bag and ticket tags link one suitcase containing 2999.1 grams of cocaine to Ms. Johnson. Bag and ticket tags link another suitcase containing 997.3 grams of cocaine to Ms. Smith. The Crown relies on actual knowledge to fix Ms. Smith with liability. Therefore, the Crown must prove beyond a reasonable doubt that Ms. Smith had actual knowledge that she was importing a substance that is prohibited by the CBSA into Canada: R. v. Sandhu (1989) , 73 C.R. (3d) 162, 50 C.C.C. (3d) 492 (Ont. C.A.), R. v. Duffy (1973) , 11 C.C.C. (2d) 519 (Ont. C.A.).

Ms. Johnson’s Videotaped Statement

[8] Ms. Johnson was called as a Crown witness. She was the first witness. Ms. Johnson said she did not recall the trip; she did not recall bringing cocaine into Canada and she did not recall being interviewed by the RCMP in January 2018. She said she travelled to Jamaica but did not recall when. She said reviewing her statement to the police would not permit her to refresh her memory. This evidence was contrary to facts not in dispute, i.e. her travel to Jamaica; that her travelling companion was Ms. Smith and that she was serving a sentence for importing cocaine into Canada. On this basis, the Crown’s application for a declaration that she was a hostile witness was granted on consent.

[9] In cross-examination, Ms. Johnson agreed that Ms. Smith was her aunt. She said she did not recall travelling with her aunt to Jamaica and insisted that she travelled alone on the trip. She said she did not remember telling the RCMP that the plan to import cocaine into Canada was Ms. Smith’s.

[10] The Crown sought an order to admit Ms. Johnson’s statement to the police under the principled exception to the hearsay rule. Ms. Smith opposed the application. A voir dire to determine admissibility was held.

[11] Hearsay evidence can be admitted for substantive use where the evidence is necessary and reliable. A statement is necessary when the declarant is unavailable for cross-examination and reliable because there is not a concern about the truthfulness of the statement because of the circumstances under which the statement was made or because its truth and accuracy can be tested by other means than contemporaneous cross- examination: R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787, 42 C.R. 6 th 1, 215 C.C.C. (35) 161. The presence or absence of evidence that corroborates or conflicts with a statement is one way of assessing the substantive reliability of the statement: R. v. Bradshaw 249 C.C.C. (3d) 429.

[12] As previously noted, Ms. Johnson was convicted of this offence after a judge alone trial. While serving her sentence, RCMP officers, Trudy Leung and Ezekeil Maracha interviewed her on video. They both testified that the interview was audio and video recorded. No oath was administered. Ms. Johnson was given primary and secondary cautions. No rights to counsel were given.

[13] Ms. Johnson made it clear to the officers that she did not want to have anything to do with the investigation. At one point, she incriminated Ms. Smith when she said “We knew what we were doing. It wasn’t like, oh it’s a surprise” When asked to elaborate she said “I just knew what I was going to do. I was to bring drugs back to Canada”.

[14] Ms. Johnson told the officers that she was not going to get a reward for cooperating; she had already been sentenced to six years and the matter was irrelevant to her. She was asked if she wanted to leave and she said yes, but her body language indicated otherwise. She reiterated that the matter was irrelevant to her and she was not going to get a break in her sentence by providing a statement so there was no point in doing so.

[15] The officers told Ms. Johnson she could leave at any time, even “right now”. They then proceeded to ask her to elaborate on her previous statement that she and Ms. Smith knew what they were doing. Ms. Johnson responded “We made a plan, we did it, and we failed”. She was asked “who came up with the plan?” to which she responded “My aunt did”. Ms. Johnson refused to provide further information and she stood up to leave. With that, the interview ended. Ms. Johnson had to wait for correctional officers to escort her out of the interview room.

[16] Ms. Smith submits that the statement is unreliable because it was not given under oath. Ms. Johnson was not warned about the consequences of giving a false statement. Ms. Johnson is in custody and her movements were completely controlled, thus she was not free to leave. The police continued to question her after she first stated that she wanted to leave. Her answer implicating Ms. Smith was induced because it was given after she had already told police she wanted to leave and the police only let her leave after she had incriminated Ms. Smith.

[17] Ms. Johnson was under the control of the correctional authorities, not the police. A review of her statement and her body language during the interview indicates that her first assertion of a desire to leave was not a genuine one. Indeed, it was made in the context of determining if there was any benefit to her in making a statement. She said she did not want to provide a statement and noted that there was no benefit to her to do so. She had already incriminated Ms. Smith before she said she wanted to leave. The police informed her that she was free to leave and then asked her about the offence. She further incriminated Ms. Smith and stood up to leave. Police questioning ceased at that point. Ms. Johnson had to sit and wait for correctional authorities to come and escort her out of the interview room.

[18] Ms. Johnson was not detained by the police. She ended the interview once it was apparent that cooperation would not improve her circumstance. There were no inducements, threats, promises or any other circumstance affecting the voluntariness of her statement. I am satisfied beyond a reasonable doubt that her statement was provided voluntarily.

[19] The statement is necessary because Ms. Johnson is a hostile witness. She hijacked her testimony. Her answers were unresponsive, thus her evidence was unavailable to the Crown.

[20] The statement was video and audio taped. Ms. Johnson has already been sentenced and had nothing to gain from providing the statement. She would be available for cross-examination. There is corroborating evidence: − It is undisputed that she and Ms. Smith travelled together; − Cocaine was found in one suitcase linked to Ms. Johnson and in another suitcase linked to Ms. Smith; − Ms. Smith had all the tags for all the luggage in her possession; − Ms. Smith paid for any weight overages for the luggage.

[21] Therefore, there are other ways of assessing the reliability of the statement other than by contemporaneous cross-examination. The necessity and reliability criterion under the principled exception to the hearsay rule has been satisfied. The probative value of admission outweighs any prejudicial effect as there are other viable avenues for testing Ms. Johnson’s testimony.

[22] In addition, Ms. Johnson will be available for cross-examination by the defence. She is a Crown witness. Should she frustrate the ability of the defence to cross-examine her, one would expect such a circumstance to fall to the benefit of the defence. Ms. Johnson’s statement is admissible under the principled exception to the hearsay rule.

[23] Border Services Officer Paul Sakamoto and Sunwing manager of Airport Services Karim Malik, testified on behalf of the Crown. There is no basis to reject their evidence. I accept their evidence and conclude that Ms. Smith had the tags that matched the tags on all the luggage. Each passenger can check in two pieces of luggage, each weighing a maximum of 23 kilograms, without charge. One of the suitcases exceeded the 23 kilogram limit and Ms. Smith paid the excess luggage charge.

[24] Ms. Johnson testified on behalf of the Crown. She was recalled after the voluntariness voir dire . This time she recalled the trip to Jamaica. She could not recall it previously. She insists that she travelled alone, despite undisputed evidence that she travelled with Ms. Smith. She said she never saw Ms. Smith in Jamaica. She did not recall implicating Ms. Smith either at her trial or during her statement to the police. She said she falsely implicated her aunt to save herself. I caution myself that Ms. Johnson is a vetrovec witness. She provided false testimony in the face of undisputed evidence that her travel companion was Ms. Smith. I do not accept any aspect of her testimony unless corroborated by other evidence.

[25] Ms. Smith travelled with Ms. Johnson. She was in possession of the tags for all of her luggage. She paid an excess luggage charge for one of the suitcases. Two of the suitcases were in Ms. Smith’s name and two of the suitcases were in Ms. Johnson’s name. Cocaine was found in one suitcase in Ms. Smith’s name and one suitcase in Ms. Johnson’s name. Ms. Smith left her suitcase containing the cocaine on the luggage carousel and did not seek to retrieve it. Why did she not seek to retrieve it? Could it be because she knew its contents and had cold feet? All of these factors cumulatively support Ms. Johnson’s statement to the police that Ms. Smith was part of the plan to import cocaine into Canada.

[26] Karim Malik testified that it is not uncommon for travellers to share luggage among themselves in order to avoid paying excess luggage charges. Such sharing can occur to comply with the two checked luggage policy, each weighing 23 kilograms or less. Passengers complying with the rule do not have to pay excess luggage charges. This fact, together with Ms. Johnson’s denials, create a reasonable doubt. Ms. Smith is probably guilty, however, the combination of these two pieces of evidence makes me slightly unsure. Since the burden of proof lies with the Crown, this circumstance benefits Ms. Smith. Therefore, the Crown has failed to discharge its onus of proof beyond a reasonable doubt and Ms. Smith is found not guilty of all charges.

Released: May 2, 2019 Barnes J.