COURT FILE NO.: CRIMJ (F) 1930/16
DATE: 2019 06 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Nicholas Cooper, Counsel for Her Majesty the Queen
- and -
Angella Marie Lewis
Ekaterina Perchenok, Counsel for Angella Marie Lewis
HEARD: April 23 and 24, 2019
RULING ON GARDINER HEARING
Bloom, J.
I. INTRODUCTION
[1] The Accused, Angella Marie Lewis, was found guilty by a jury in Orangeville on February 28, 2019 of one count of importing cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act.
[2] The position of the Crown put to the jury was that the Accused imported four containers of cocaine in her suitcase, and that she could be found guilty as long as the jury found that she had imported at least one of them.
[3] The position of the Defense at trial asserted that the Crown had not proven beyond a reasonable doubt that the containers of cocaine tendered in evidence by the Crown were seized from the Accused’s suitcase. Further, the Defense asserted that this proposition was supported by evidence that, simultaneous to the investigation of Ms. Lewis at Pearson International Airport and in close proximity to it, was another investigation of one Allen, in which four similar containers containing cocaine were seized, which could have been switched with those from the Lewis investigation.
[4] At this hearing the Crown seeks to prove the quantum of cocaine imported by Ms. Lewis.
II. GOVERNING LEGAL PRINCIPLES
[5] The hearing before me is what is know as a Gardiner Hearing.
[6] The governing statutory provision is s. 724 of the Criminal Code which provides:
s. 724 (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.
[7] In Plate v. Atlas Copco Canada Inc., 2019 ONCA 196 at para.15 A.C.J.O. Hoy for the Court stated:
15 In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 17-18, the Supreme Court summarized the applicable principles where a sentencing judge must make factual findings to facilitate sentencing following a jury trial:
Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict". The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2) (a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury.
Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts. In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3) (d) and 724(3)(e). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [Citations omitted.]
[8] Those principles guide me in my analysis of the matter before me.
III. ARGUMENTS OF THE PARTIES
[9] The primary submission of the Crown is that the amount of the cocaine imported by Ms. Lewis has been proven beyond a reasonable doubt; and that it is the amount of the cocaine contained in the four containers tendered at trial. The Crown’s alternative submission is that it has proven beyond a reasonable doubt the amount of the cocaine imported by Ms. Lewis; and that it is the amount of the cocaine contained in the container opened and resealed with tape by Office Kllapi of the Canada Border Services Agency, and tendered at trial, together with the amounts of cocaine contained in the three containers containing the least amounts of cocaine among the three remaining containers tendered at trial and the four seized from Allen.
[10] The primary submission of the Accused is that the Crown has proven beyond a reasonable doubt only that the amount of cocaine in the container opened and resealed by Kllapi was imported by Ms. Lewis. The alternative submission of the Defense is the same as the alternative put forward by the Crown.
[11] The Defense concedes that four containers were seized from the suitcase of Ms. Lewis. Further, the Defense on February 28, 2019 also stated that the issue before me “is in relation to what transpired between Ms. Lewis arriving at secondary and property being handed over to the RCMP. This is because Border Services Officer Kllapi did make markings on four container [sic] with his marker, and ultimately handed off four containers that he took a picture of with those markings onto the RCMP.”
IV. ANALYSIS
[12] I accept the primary position of the Crown, and, therefore, need not address the common alternative submission of the parties.
[13] I will now explain the reasoning by which I arrive at that conclusion by reference to the evidence. In reaching my conclusion I have considered all the evidence before me on the Gardiner Hearing, including evidence from trial and viva voce evidence. I have also applied the principles set out above.
[14] At trial the following admissions were made:
Ms. Lewis landed in Canada on Friday May 29th, 2015 at approximately 6:45 PM.
Officer Kllapi seized four containers of fibre. Each of those containers was found to contain cocaine.
The cocaine in the four fibre containers tendered at trial had the following individual weights: a) 483.5 grams; b) 487.0 grams; c) 485.5 grams; and d) 484.0 grams. The total seized was 1.955 kilograms.
[15] Office Kllapi testified at trial in examination-in-chief that he sealed the four containers he had seized in an evidence container; and turned them over to the RCMP.
[16] Officer Kllapi testified at trial in cross-examination, “I can tell you that …the psyllium fibre containers came from the luggage…that Ms. Lewis was carrying that day…Again it was within the suitcase….I cannot tell you specifically where in the suitcase it was.”
[17] In re-examination Crown Counsel asked Officer Kllapi, “My friend asked you whether or not at one point there were eight containers between both sides of the U that you were at first. Did you ever mingle the items of this seizure with those of the [Allen] seizure that was happening at the other side of your U-shaped desk?” He responded, “No.”
[18] On the Gardiner Hearing Officer Alan Hopkins of the Canada Border Services Agency testified. He stated that he was working on May 29, 2015 at Pearson International Airport at a counter attached by a ledge-type structure to another counter at which Officer Kllapi was working. He stated that Kllapi seized four containers of fibre; and that at approximately 8:00 pm he, himself, seized from Allen four containers of the same type of fibre products.
[19] Hopkins testified that the four containers he seized were with him and stayed with him; that he never left them unattended; that he would have taken them to the washroom if he went there; that he placed the four containers in an evidence bag and sealed it; that he wrote on the bag his name, his badge number, the seizure number, the date and time, and further information; and that he turned the bag over to the RCMP at 10:36 pm. He stated that the bag was never out of his personal custody until he turned it over to the RCMP; that he never mixed up the containers he seized with the ones Kllapi processed; and that Kllapi did not mix up the ones he processed with the ones he, himself, had seized from Allen. He stated that he was sure that he never mixed up the two sets of containers, because he had control of the ones he seized until he turned them over to the RCMP.
[20] Photographic evidence showed the container that Kllapi had opened and resealed with tape.
[21] In cross-examination Hopkins admitted that the incident in question was four years ago; that his memory was not “great” concerning the event; and that he did not recall all key parts of it. He stated, however, that he remembered putting the four containers from Allen’s suitcase in the evidence bag and what he wrote on it.
[22] I find that both Kllapi and Hopkins were truthful witnesses. Neither in the content of their testimony internally, nor as compared with other evidence, was their any sign of lack of credibility. Futher, there was no sign of lack of truthfulness in their demeanour.
[23] Additionally, I find that Hopkins’s evidence accords with Kllapi’s in excluding any mix-up of the containers seized by Kllapi from the Accused with those seized by Hopkins from Allen. The reliability of both witnesses on this point is demonstrated by this consistency as between their respective recollections.
[24] Accordingly, I find that the Crown has proven beyond a reasonable doubt that the four fibre containers seized by Kllapi came from the Accused’s luggage; that the amounts of cocaine that she imported were those in those containers; and that those amounts were as detailed in the admissions at trial as set out above.
Bloom, J.
Released: June 10, 2019
COURT FILE NO.: CRIMJ (F) 1930/16
DATE: 2019 06 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Angella Marie Lewis
REASONS FOR JUDGMENT
Bloom, J.
Released: June 10, 2019