COURT FILE NO.: CR-1260-15

DATE: 2019 07 31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Tsai and S. Burdo, for the Crown

• and -

J. Kaldas for the Defendant

TIMEKIA ASHLEY BIRD

Accused

HEARD: June 17, 18, 19, 20, 21, 24 and 25, 2019

REASONS FOR JUDGMENT

Fowler Byrne J.

1Ms. Bird pleaded not guilty, and elected to proceed to trial before a judge alone. The Defendant Timekia Ashley Bird has been charged with importing into Canada cocaine (a Schedule I controlled substance) contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

Issue

2Ms. Bird conceded that the controlled substance was imported into Canada, and that it was cocaine. Ms. Bird also conceded she intended to bring back into Canada the items confiscated by the Canada Border Services officers. The issue at trial was whether Ms. Bird knew that items she imported contained a controlled substance. Unless I am satisfied beyond a reasonable doubt that Ms. Bird knew she was importing a controlled substance, she must be acquitted.

3The Crown called Canada Border Services Officer Adam Chamberlain; R.C.M.P. Officer Kevin Van Alstine; Geoffrey Letch, a civilian member of the London Integrated Technical Unit of the R.C.M.P.; and Michael Brady, also with the Integrated Technical Unit.

4Ms. Bird testified in her own defence, and the defence sought to have the expert opinion evidence of Dr. Pomichalek accepted.

Background

5On December 8, 2014, Ms. Bird returned to Canada from a 10-day stay in Jamaica via WestJet flight 2633, which landed at the Lester B. Pearson International Airport at approximately 6:45 p.m. She travelled on a passport issued on November 7, 2019, 19 days prior to her departure to Jamaica.

6At the time of this trip, Ms. Bird was a single mother with three young children under the age of 10. Her children did not travel with her.

7Upon passing through customs, she was called up by Adam Chamberlain, an officer with the Canada Border Services Agency. Officer Chamberlain engaged Ms. Bird in conversation sometime after 7:00 p.m. During this conversation, Ms. Bird was friendly and spoke freely to Officer Chamberlain. At that time officer Chamberlain ascertained that she was a Canadian citizen who had just arrived from Kingston, Jamaica, on flight 2633 with West Jet Airlines, that she was travelling alone, and was currently unemployed. He also reviewed her E311 Customers Declaration Card and her newly issued passport. Ms. Bird told Officer Chamberlain that she did not travel often.

8Based on what he learned in his conversation with Ms. Bird, he marked her Electronic Declaration Card Receipt so that she would be directed to secondary questioning by CBSA. The secondary examination began at approximately 7:35 p.m. Officer Chamberlain started by asking Ms. Bird basic questions to establish that the bags with Ms. Bird were her own, that she had packed her own bags and that she was aware of the contents. He then conducted search of her baggage. At that time, Officer Chamberlain also learned that she did not know how much the plane ticket cost and when it was purchased. He ascertained that the flight was given to her by a friend in return for babysitting her child. She told the officer that she had buns and chips in her bag for her children.

9He also noticed from her paper customers declaration form (E311), that she did not declare any agricultural food items, but did indicate she was bringing back goods worth approximately $30. He asked her if she had any more food, besides the buns and the chips, and she replied no.

10Officer Chamberlain then searched Ms. Bird’s baggage. During the examination, he came across a metal tin of Lasco brand hot chocolate mix. When he discovered it, Ms. Bird stated it was for her children. He asked her why she brought it from Jamaica, and she replied that it tasted different from the hot chocolate mix available in Canada and that she preferred the taste of the Jamaican brand.

11While Officer Chamberlain questioned Ms. Bird about the tins, she volunteered that she had three more tins in her checked suitcase, which Officer Chamberlain then found. One tin was Grace brand fruit punch, one was another Lasco brand instant hot chocolate mix, and the third was Grace brand pineapple juice.

12Officer Chamberlain set them aside and proceeded with the baggage examination. He put them through the X-ray machine to check for anomalies, variations in density, etc. He noted an anomaly on the side of the cans, like a change in density or a make up of the tin. He saw dark markings of the sides of all four cans. He brought them back to the examination area, and Ms. Bird volunteered that they were given to her to give to her friend who purchased her plane ticket.

13Officer Chamberlain removed the paper wrappers around the sides of the cans and observed that the wrappers were fixed with non-original glue and that there were holes it the sides of the can, which were plugged or caulked.

14He opened the fruit juice and some of the contents got on his can opener. He then used a Narcotics Identification Kit cocaine field swab to test the material on the can opener. It indicated the presence of cocaine. He then handcuffed Ms. Bird and arrested her. At 9:42 p.m, Officer Chamberlain re-examined the contents of the suitcase, and searched the buns, chips and duty-free alcohol that she had purchased. They were negative for contraband.

15Officer Chamberlain then contacted the R.C.M.P. Officer Kevin Van Alstine attended at the airport, took possession of the contents of the suitcase, the suitcase, Ms. Bird’s duty-free alcohol and her purse.

16Officer Van Alstine then went to the cell where Ms. Bird was being held at Terminal 3 at Pearson. He introduced himself to her at 8:29 p.m., arrested Ms. Bird, read her Charter rights, and provided her with an opportunity to speak to counsel. There are no issues regarding her arrest.

17The controlled substance and the four containers it came in were later analyzed by the R.C.M.P. No fingerprints were obtained from the containers. It is agreed that in total, the sum imported by Ms. Bird was 1514.4 grams, which had a street value of anywhere between $121,152 and $166,000, if sold by the gram.

Evidence of the Defence

18Ms. Bird testified that in late 2013 and early 2014, she was going through a stressful time in her life. In particular, she was having difficulties with the father of one of her children. She wanted to get away.

19Around that time, Ms. Bird became reacquainted with Jamar Miller, an old boyfriend from middle school. She told him that she needed a break, and that she had never been anywhere. On October 30, 2014, she and Mr. Miller exchanged a number of text messages. In the text messages, Ms. Bird identified Mr. Miller as “G.I.P.” and herself as “PrettyT.”

G.I.P.: Kk Kk yo I have a serious business

proposition

Pretty T: Did

Pretty T: kmft

Pretty T: Ok

G.I.P. I can get you a paid flight to n from yahd but you know what you have to do right

G.I.P. And you get paid for doin it

PrettyT Wat?

G.I.P. you can leave ASAP. 6 days.

G.I.P. Is how long the trip is

PrettyT Voice note me everything

G.I.P. =))

20Two voice messages were left and were played for the court. The first voicenote (identified as no. 735), was muffled but the following words of Mr. Miller could be understood: “bring it back to me, back in a way I can, you know what I am saying a quick 2,3 bands, maybe you report back, depending on what you can do, right?”

21The next voice message from Mr. Miller, was also muffled, but the following was heard: “don’t know if the last one worked, I will book a flight for you as soon as you can go…pick some stuff up for me, bring it back, I can’t bring it back the way you bring it back, you know what I am saying you get 3,4 bands, real fast.”

22Subsequent texts less than 10 minutes later show Ms. Bird acknowledging receipt of the voice notes. Later, G.I.P. asks Mr. Bird to make sure that her passport is valid, and then confirmed, “You don’t have charges right”. When it was discovered that Ms. Bird did not have a valid passport, G.I.P. offered to “fix it for her”.

23Ms. Bird then testified that she met with Mr. Miller approximately a week later, on the way to get her passport. She stated she asked him to be clear about what he wanted and when he told her it was drugs he wanted her to bring back, she told him that she was not like that and that she would not do it. She stated that he never specified cocaine.

24After she told him that she would not do it, he asked her to bring something to Jamaica, for a woman he referred to as Munchie, who was the mother of his child. He stated Munchie wanted to send some things to Jamaica to a friend who was opening a shop there. The items that Munchie wanted her to deliver were slippers, perfumes, and clothes. She told Mr. Miller that this was not a problem.

25She states that although she had not agreed to bring back drugs for Mr. Miller, he paid for part of her passport renewal fee nonetheless.

26She later met with Munchie, who gave her a suitcase full of items like slippers, perfumes and clothes. Munchie agreed to pay for part of her trip, and gave her approximately $200 spending money while she was in Jamaica. Munchie sent her a text with a photo of the man who was going to pick up the suitcase from her at the airport when she landed.

27Ms. Bird arrived in Jamaica on November 28, 2014, with two suitcases – her own and the suitcase she delivered for Munchie. Her aunt met her at the airport, but the man identified by Munchie was also there to pick up the suitcase. She handed over the suitcase to him and then went to her aunt’s home. Ms. Bird claims she divided her time in Jamaica between her aunt’s home and a hotel where she visited with a friend.

28Ms. Bird claims that a couple of hours before she left to go to the airport, she got a phone call from Munchie who told her that Munchie’s boyfriend was going to come see Ms. Bird. Ms. Bird thought maybe they were going to bring her back to the airport. It was the same man who picked up the suitcase at the airport, and he had another man with him. They had a black bag, which had four cans. They put the tins directly in her suitcase, telling her they were for Munchie. Ms. Bird testified that she saw at least two of the tins contained hot chocolate mix, so she asked if she could get keep the small tin of hot chocolate mix for her and her kids. She indicated that the man said that it was okay, and put the tins in her suitcase. She indicated she thought nothing of it. The items placed in her suitcase looked like cans of hot chocolate mix, but she does not remember what the other tins looked like.

29She proceeded through customs and was arrested, as described above. She was cooperative with the Border Services Officer and the R.C.M.P. She told the R.C.M.P. officer that Munchie was supposed to pick her up. The R.C.M.P. searched for her but were unable to locate her.

30Some years later, prior to trial, Ms. Bird made efforts to find Munchie. She delivered information on Munchie’s Facebook and Instagram pages to the police.

Knowledge of the Controlled Substance

31At the beginning of trial, the Crown indicated that it would argue wilful blindness on the part of Ms. Bird. In response to this, the defence took the position that Ms. Bird functions with a low intellectual capability, and that this was true at the time of the alleged offence. This, the defence argues, makes it likely that she had neither the requisite knowledge of the substance she imported, nor the capacity to make the necessary inquiries about the substance.

32In support of this position, the defence produced Dr. Milan Pomichalek, a psychologist with the North Bay Regional Health Centre, who would provide expert opinion evidence on Ms. Bird’s intellectual capacity. A voir dire was conducted prior to the commencement of this trial on this issue, and the parties agreed that I could make my ruling on the admissibility of this evidence when I released my reasons after the trial concluded.

33After the conclusion of the evidence at trial, the Crown advised the court that it no longer wished to argue wilful blindness. By taking that position the Crown is implicitly acknowledging that there is no air of reality to the theory of liability that Ms. Bird remained deliberately ignorant when she accepted the tins.

34Given the position taken, the Crown argued that the expert opinion evidence should not be considered when determining the verdict in this matter. Nonetheless, the defence argued that I should still consider Dr. Pomichalek’s expert opinion evidence in order to appreciate the defendant’s conduct and responses while under cross-examination. In other words, the defence wishes me to consider Dr. Pomichalek’s opinion evidence when considering Ms. Bird’s credibility.

i. Should I admit the Opinion Evidence of Dr. Pomichalek?

35Opinion evidence is prima facie inadmissible at trial. However, experts are permitted to provide opinions for the trier of fact if ruled admissible as per the two-part test developed by the Supreme Court of Canada in the decision of White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

36As a first step, the proponent of the opinion evidence must establish the threshold requirements of admissibility: relevance, necessity, absence of an exclusionary rule, and a properly qualified expert. For the second step, the trier of fact is to act as a gatekeeper, wherein the potential risks and benefits of admitting the evidence are balanced in order to decide whether the potential benefits justify the risks: White Burgess at para. 23-24.

37The requirement of necessity as a threshold requirement was discussed in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at pp. 23-24:

What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher (Village of) v. Smith, 1931 CanLII 1 (SCC), [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". More recently, in R. v. Lavallee, supra, the above passages from Kelliher and Abbey were applied to admit expert evidence as to the state of mind of a "battered" woman. The judgment stressed that this was an area that is not understood by the average person.

38Based on the foregoing, I do not find the evidence of Dr. Pomichalek necessary. I am not asked to consider this opinion evidence in order to understand a psychological diagnosis or condition, but rather to assist in determining the credibility of a witness. Credibility lies within the expertise of the trier of fact. It is the very job of the trier of fact to make these findings. It is not necessary for an expert to provide an opinion in order to assist the trial judge in fulfilling his or her role. Accordingly, the opinion evidence of Dr. Pomichalek does not pass the first step of the White Burgess analysis, and accordingly, shall not be considered in this judgment.

ii. Knowledge of Ms. Bird

39Ms. Bird maintains that she had no knowledge that the four cans placed in her luggage contained drugs. No other direct evidence was presented at trial that would speak to Ms. Bird’s knowledge of the contents of the cans she brought back from Jamaica.

40The Crown is not taking the position that Ms. Bird was wilfully blind about the contents of the cans placed in her suitcase. They maintain that Ms. Bird knew she was importing drugs back into Canada.

41The Crow has the onus of proving beyond a reasonable doubt that Ms. Bird knew she was importing cocaine into Canada. Since Ms. Bird testified, her evidence must be assessed in light of the Supreme Court of Canada’s decision of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Directing myself on the law, if I believe Ms. Bird’s evidence that she did not know the tins contained cocaine, I must find her not guilty of the offence of importing. Secondly, even if I do not believe Ms. Bird's evidence, if it leaves me with a reasonable doubt as to whether she knew the tins contained cocaine, I must find her not guilty. Thirdly, even if Ms. Bird’s evidence does not leave me with a reasonable doubt that she knew the cocaine was in the tins, I may only find her guilty of importing if, on the rest of the evidence I do accept, it proves beyond a reasonable doubt that Ms. Bird knew the cocaine was in the tins. Finally, I remind myself of the standard of reasonable doubt as set out in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, and in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.

42I have difficulty accepting Ms. Bird’s evidence outright. She was vague about the reasons she wanted to go to Jamaica, beyond indicating she was “stressed out” because of a difficult relationship with the father of her child. In fact, she indicated in court that she really did not want to discuss why she was stressed out.

43It was the evidence of Border Services Officer Chamberlain that Ms. Bird advised him that her friend purchased the plane ticket for her because she babysat her child. This does not accord with Ms. Bird’s trial evidence that she only met Munchie’s child once on a play date with her kids. At trial, she claims to have no memory of making this statement to Officer Chamberlain.

44Under cross-examination, Ms. Bird was at times evasive, and as the cross-examination continued, she claimed not to remember anything – either the events leading up to and surrounding her arrest in 2014, or the evidence presented right in front of her at the trial only a day or two prior.

45Also, while there is evidence in text and voice messages of a plan to important drugs, similar text or voice messages supporting Ms. Bird’s evidence that she ultimately told Mr. Miller that she would not import the drugs was not available.

46However, I am mindful that the Crown bears the onus in this case. The Crown must satisfy me beyond a reasonable doubt that she knew there was cocaine in the tins. Although I cannot say that I entirely believe or accept Ms. Bird’s evidence with respect to the circumstances of her having the tins in her possession, I am not sure as to whether Ms. Bird knew the cocaine was in the tins. Ms. Bird’s evidence in the end leaves me with a reasonable doubt for the following reasons.

47Although the text messages and voice messages do not mention drugs specifically, Ms. Bird admits that when first contacted by Mr. Jamar Miller, that the “business proposition” that he offered was for her to import drugs into Canada, although she was not sure what type of drugs. She identified the participants in the text messaging (herself and Mr. Miller) and identified them both on the voice messages that he left with her.

48At trial, when listening to the voice message left by Mr. Miller, Ms. Bird corrected the Crown who assumed Mr. Miller was referring to Ms. Bird receiving “2 or 3 bags”. She indicated that Mr. Miller was offering to give her “2 or 3 bands”, which means two or three thousand dollars. It may have been more helpful to leave the Crown with the assumption that she was to receive bags, and not admit to a sizeable payment being offered to her. Instead, she gave evidence that would potentially hurt her.

49Also, Ms. Bird claims she told Mr. Miller in person that she would not import the drugs, which she claims he accepted. From that point onward there was no longer any discussion of her bringing anything back for him. Instead, the only discussions that transpired were with respect to her delivering goods to Jamaica, for the mother of his child, Munchie.

50The evidence supports the finding that all subsequent dealings were with Munchie, and not with Mr. Miller. Ms. Bird carried an extra suitcase to Jamaica containing items to be sold in a store. A person came to the airport to pick up the suitcase, as arranged by Munchie. It was Munchie that purchased part of her ticket, not Mr. Miller. It was Munchie that gave her spending money, not Mr. Miller. While Mr. Miller did help her with her passport fee, Ms. Bird indicated it was as a favour. Ms. Bird already gave evidence that she accepted money from time to time from her mother to make ends meet.

51On the day she was leaving Jamaica, the same man who picked up Munchie’s suitcase was the man who came to her hotel room with some cans for Munchie, not for Mr. Miller. Ms. Bird indicated she only saw that two of the tins were hot chocolate mix, because she recognized them as a product she had tried. She did not say she recognized the other two tins as Jamaican juice – she simply did not see them at all. Given that she delivered non-drug related items to this man when she arrived, as a favour to her friend, it is not unreasonable that non-drug related items would be sent back, for this same friend.

52More importantly, Ms. Bird asked if she could keep one of the hot chocolate cans for herself and her children, which this man indicated was okay. This indicates an absence of knowledge of what was in the tins.

53When she arrived at customs, and she was quizzed about the smaller hot chocolate mix, she volunteered that she had three other cans in her suitcase, before the first tin was even inspected for illegal drugs.

54Also, when she was questioned by the police at the airport, she freely volunteered that “Munchie” was supposed to arrive at the airport and pick her up, allowing the police an opportunity to question her. Unfortunately, Munchie was gone. She even tried to find Munchie later and delivered what information she had (an Instagram and Facebook account) to the police.

55Accordingly, I find that the evidence does support a finding that once Ms. Bird advised Mr. Miller that she would not import drugs, she conducted herself as an individual delivering non-drug related items from and to Munchie.

Conclusion

56Accordingly, I find that the Crown has failed to prove beyond a reasonable doubt that Ms. Bird knew that the four tins she brought back into Canada contained illegal drugs, and accordingly, Ms. Bird is acquitted of the charge.

Fowler Byrne J.