COURT FILE NO.: CR-18-1048-00
DATE: 2019 11 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Quayat and O. Melnik, for the Crown
- and –
BRUNO FREIRE, PEDRO MENDES and PAULA SIMMONS
L. Strezos, for the Defendant Bruno Freire
K. Schofield, for the Defendant Pedro Mendes
B. Greenspan, for the Defendant Paula Simmons
HEARD: July 8, 9, 10, 2019
REASONS FOR JUDGMENT
D.E HARRIS J.
[1] The sole issue in this importing cocaine trial is whether the Crown has proved prior knowledge and hence possession of the cocaine found in each of the accuseds’ luggage.
[2] The defence argues that the cans were not packed by the accused or under their behest. They were put in the bags by persons unknown and without knowledge of the accused.
[3] The background is that the three accused travelled on vacation to Jamaica together. Mr. Freire is Ms. Simmons son-in-law, being married to her daughter. Mr. Mendes is Mr. Freire’s friend. Ms. Simmons, 67 years old at the time of trial, said that her son-in-law and daughter had given her a five-day vacation to Jamaica as a gift.
[4] On August 18, 2017, upon arriving at Toronto’s Pearson Airport at about 2:00 a.m. from Jamaica, all three accused were directed to secondary. Each had their bags opened in separate inspections by Canadian Border Services Agency (CBSA) officers. Each answered the three questions routinely asked—are these your bags, did you pack the bags, do you know what is in the bags—in the affirmative.
[5] In each of the accuseds’ checked luggage was found six identical cans of cocoa powder. Upon being opened, each contained about a half kilo of cocaine for a total of about three kilos in each of the pieces of luggage.
[6] All three accused, when the cans were first discovered by the officers, immediately disavowed knowledge of them. In Ms. Simmons’ case, there was a white towel discovered initially. She stated the towel was not hers. The cans came immediately afterwards, and she also said they were not hers.
[7] In her evidence, Ms. Simmons reiterated that she did not pack the cans of cocaine and had no prior knowledge of them.
THE CROWN ARGUMENTS THAT THE ACCUSED ARE GUILTY
[8] The Crown, to elevate its case to the beyond a reasonable doubt level, makes several arguments:
Occam’s Razor
[9] Mr. Quayat’s “overarching” submission was that when he was training as a nuclear physicist before his career as a lawyer, he learned about Occam’s Razor, a problem-solving adage from the 14th Century. In his submission, Occam’s Razor proves the accuseds’ guilt in this case.
[10] Occam’s Razor was conjured up by logician and Franciscan friar William of Ockham (Ockham is a town in the county of Surrey, England). It postulates that the simplest answer is more likely to be correct than is a more complicated answer. The razor is meant to clear away metaphysical and extraneous matters.
[11] Although Mr. Quayat did not explicitly spell out the application of Occam’s Razor in this instance and it is not without some ambiguity, it is to be assumed that the simplest answer in this case is that the drugs were placed in the suitcases where they were found by the accused or at least with their connivance. Conversely, the explanation that was more complicated and required an extra explanation was that the drugs were planted by others in the accuseds’ luggage.
[12] Evaluating the Occam’s Razor submission, it is true that easy ways to solve difficult problems are exceedingly attractive. We all gravitate to certainty over uncertainty. Formulas are effective and expedite the process of reasoning. If Mr. Quayat is right, Occam’s Razor would be of general utility in court cases and disputes.
[13] A basic distinction needs to be made here. If a person accused of a criminal offence has several incriminating inferences stacked up against him or her, their attempt to explain away this incriminating evidence can lead to even greater incredibility. But in this case there was only one basic, quite simple proposition to explain the presence of the drugs. That is quite a different matter.
[14] Addressing the Crown’s argument directly, Occam’s Razor is singularly unhelpful. Nostrums of this kind are incapable of lending any assistance to resolve specific cases. While some people may believe that Occam’s Razor sheds some light on physical phenomenon, human behaviour and psychology are on a different plane. There are infinite variations that resist formulaic answers. Generalizations cannot obviate the rigorous reasoning process required in a criminal case.
[15] Particular skepticism is appropriate when Occam’s Razor is suggested as a tool to resolve a criminal trial. Occam’s Razor would almost always favour the Crown. If the formula were followed religiously, it would lead to legally flawed findings of guilt and multiple miscarriages of justice.
[16] Perhaps more incisive guidance than Occam’s Razor, this time from a modern and acclaimed physicist, theoretical physicist and Nobel Laureate Richard P. Feynman, is this comment:
I can live with doubt and uncertainty. I think it’s much more interesting to live not knowing than to have answers which might be wrong.[^1]
[17] Occam’s Razor fails to move the Crown any distance towards its goal of proof beyond a reasonable doubt.
The Value of the Drugs
[18] The Crown next argues that the value of the commodity in the accuseds’ luggage weighs in favour of their guilt. A hypothetical person who placed the drugs in the suitcases of unsuspecting dupes, given their value, would not have assumed the innumerable risks that the drugs would be intercepted before he was able to secure them.
[19] The risks include the accused opening their suitcases and discovering the drugs before the luggage was checked on the plane or, the hypothetical person not being able to retrieve the drugs from the bags before they were discovered by the accused once they arrived in Toronto. There are many other possibilities.
[20] I agree that the idea that individuals might be entrusted with drugs who do not know they have possession of them is fraught with implausibility. It is unlikely that a drug trafficker would take such a risk with drugs worth close to a million dollars at retail: see R. v. DaCosta, 2015 ONSC 1478, [2015] O.J. No. 2822 at paras. 173,178. This circumstance demonstrates that it is more likely that the accused knew of the drugs than that they did not. Further analysis of this inference must await the consideration of whether the Crown has met its burden of proving guilt beyond a reasonable doubt.
Disavowing the Cans was Self-Serving
[21] The Crown next argued that when Mr. Mendes, for example, said the cans were not his immediately upon them being discovered by customs in his suitcase, this was the last minute he had to disassociate himself from them. It was “his last minute to get off the train.” The same goes for the other accused, it is to be assumed. This, in the Crown’s submission, casts doubt on the defence position.
[22] If the cans were opened and the cocaine found before the defendants disclaimed them, without question this would be a much more difficult case for the defence. However, if the cans were put there by a person or persons unknown without the accuseds’ knowledge, which is what the defence contends, then the statement that they were not theirs was only to be expected. Any person in that situation surprised by the objects unearthed by the officers, would have said the same thing the accused did.
[23] Based on this reflection, it is apparent that the argument that the last minute disavowals display the accuseds’ poor credibility proceeds from a presumption not of innocence but a presumption of guilt. That is the veiled predicate of the Crown submission. To give effect to this argument would constitute fundamental legal error.
[24] The same holds true for the fact that all three accused said the same thing when the cans were revealed. While this could be evidence of a mutual agreement amongst the three to distance themselves from the cans if they were found out, the statements, because they were only reasonable to expect if the cans were indeed planted, were equally likely to be legitimate assertions of innocence.
[25] The statements by the defendants disclaiming knowledge do not assist the Crown. Instead, they form the nucleus of the accuseds’ defence.
The Presence of the Towel in Ms. Simmons’ Bag
[26] As mentioned, Ms. Simmons told the Border Services Officer (BSO) when the suitcase was opened that the white towel on top was not hers. Mr. Quayat argued that a drug trafficker would not have put the towel in the bag. Ms. Simmons in saying the towel was not hers, “jumped the gun.” This argument is of no real moment. The other possibilities besides the one advocated by the Crown are too numerous. This evidence neither enhances nor detracts in any significant way from the defence case.
The Packaging of the Cans in the Suitcases
[27] The evidence from each of the BSOs was that the cans were found under clothes. Mr. Quayat argued that if a drug dealer placed the cans in the suitcase, he would have likely packed them on top. Or, better yet, he would not have put the drugs in cans at all.
[28] I disagree. Whether placed by the accused or by someone else, it made sense that the cans would be packed amongst the clothes rather than on top of them. This would help to conceal them as best as possible.
At Pearson Airport, the Accused Avoided Each Other
[29] While waiting in the line at secondary, Ms. Simmons and her son-in-law Mr. Freire did not interact. This was argued to have a consciousness of guilt import.
[30] While slightly suspicious, this is of little weight in full context. There had been some interaction in the baggage carousel area. Also, the plane was several hours late, and the secondary inspections of the accused were conducted around 3:00 a.m. Like anyone would be and Ms. Simmons testified she was, the accused were very tired and grumpy. I would not assign much weight to this circumstance.
The Difficulty of Retrieving the Drugs from the Accuseds’ Luggage
[31] If the drugs were secreted in the luggage by person or persons unknown, how were they to retrieve them? It would have had to happen at the airport. It would be totally impractical to obtain the drugs after the three accused left customs with their suitcases.
[32] I am entitled to look at this factual circumstance, as long as orthodoxy with the burden of proof is maintained. If it were impossible or virtually impossible to retrieve the drugs, the plausibility of the drugs being planted by a third party would be significantly reduced.
[33] In this circumstance, it would have been possible for someone else to retrieve the drugs, but it would not have been easy. For, example, baggage handers could have removed the drugs, or someone associated with the airline. This is not unheard of, by any means. Still, the difficulty in successfully doing so leads to a conclusion that more likely than not, there was no such hypothetical drug trafficker. The preferred explanation is that the accused put the drugs in the bag themselves and would remove them themselves as well sometime after alighting in Canada.
THE EVIDENCE OF MS. SIMMONS
[34] Ms. Simmons was a good witness. She denied knowledge of the cans with the cocaine in them.
[35] Ms. Simmons is 67 years old. She has two children, Lorraine and Philip, with her ex-husband. Lorraine is married to Mr. Freire.
[36] Ms. Simmons has worked hard her whole life. She worked for the township and city of Vaughan and then moved on to Vaughan Hydro. She fully retired in 2016. Her total income from the various pensions she receives is $4000 per month. To supplement her income, she sells metal siding and metal roofs for a company headquartered in Orillia. She also babysits for her daughter and Mr. Freire. She has three grandchildren and testified that she wants to leave them something. Ms. Simmons owns a home in Newmarket worth approximately $700,000 but with a mortgage on it.
[37] Lorraine called her mother up in July 2017 and told her that Mr. Freire and she were giving Ms. Simmons an eight-day trip to Jamaica. Ms. Simmons went with Mr. Freire and his friend Mr. Mendes whom she had met before. Her daughter Lorraine lent her a suitcase to take on the trip. Ms. Simmons testified that the three accused stayed together at a resort in Jamaica.
[38] The day they were leaving, the three checked their bags at the front desk of the resort. They had three hours to kill before the bus would leave to take them to the airport. They went to restaurants and bars at the resort. When it was time to leave, they picked up their bags at the front desk and boarded the bus.
[39] At secondary inspection, Ms. Simmons noticed that the tabs of her suitcase zipper were hanging. She mentioned this to the BSO because she had locked the bag before leaving Jamaica using the code her daughter had given her. The BSO officer agreed that Ms. Simmons mentioned this to him.
[40] Mr. Greenspan argues that smuggling drugs would have been very much out of character for Ms. Simmons. He also points to there being no evidence that she was nervous in secondary. I agree with both of these arguments.
[41] On balance, however, I am somewhat skeptical of Ms. Simmons’ evidence that she did not know of the cocaine in her suitcase. The observations that a trafficker would not entrust drugs to someone’s suitcase without their knowledge and the difficulty a trafficker would have retrieving the drugs once in Canada, are of greater force than is Ms. Simmons’ denial. It is unlikely that the cans were put in the bags without the accused’s knowledge.
CONCLUSIONS
The Guilt or Innocence of Ms. Simmons
[42] Based on the findings of fact, the Crown’s case raises to a level of at least probable guilt. Of course, that is not the question. The real question is whether the evidence goes the extra mile from probability to proof beyond a reasonable doubt.
[43] Defence counsel, led by Mr. Strezos, argue that R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.) applies to this case. I accept this but with a caveat. The three-step test fashioned by Justice Cory was to respond to the chronic problem of judges in reasons for judgment and charges to the jury resolving a case by choosing between the Crown’s evidence and the accused’s evidence: R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5. This erroneously bypasses the beyond a reasonable doubt alternative, “the most fundamental rule of the game” as Justice Sopinka called it in his dissenting reasons in W.(D.) (para. 38). This pervasive error committed with significant frequency over more than 40 years attests to the seductive attraction of this binary approach.
[44] In order to be acquitted, the accused does not have to be believed. This would reduce to a civil balance of probability the standard of proof on the Crown and simultaneously reverse the burden of proof on to the accused. The Crown must prove guilt beyond a reasonable doubt and, correspondingly, the accuseds’ benefits from a reasonable doubt arising from their evidence or any other exculpatory evidence or argument or lack of evidence, for that matter.
[45] The caveat to the application of W.(D.) is that this was not a true credibility contest as was W.(D.) and its progeny. It was not a “she said, he said” case. The Crown’s evidence was not based on credibility but on the finding of the cocaine in the luggage, something about which there was no controversy. The defence case does of course both involve Ms. Simmons credibility and her disavowal of the cans when they were first discovered.
[46] The false allure of choosing which side to believe is most prominent in a pure “she said, he said” credibility contest. That is not the situation here. Only the defence case theory of the case involved credibility assessments. However, it does not hurt to be reminded of the perils of a verdict based on mere preference in any case in which the accused testifies or where there is exculpatory evidence. The line between believing the accused and having a reasonable doubt based on an accused’s evidence may appear to be a fine one but the fundamental organizing principles of our system of criminal justice require that it be vigilantly safeguarded. Conceptually, this difference between believing and not believing but nonetheless having a reasonable doubt is not easily understood, despite its pivotal importance: see R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, 119 D.L.R. (4th) 464, 1994 CarswellAlta 327 at paras. 53-54 (Carswell) per McLachlin J. as she then was.
[47] Totalling up the evidence, the Crown has on its side the implausibility of a professional drug trafficker having planted the drugs unbeknownst to the accused and the difficulty of such a person retrieving the drugs once in Canada. The defence, for its part, points to the immediate disavowal of the cans which contained the cocaine. In addition, on behalf of Ms. Simmons, she put her testimonial credibility on the line and denied knowledge of the cocaine. The Crown’s cross-examination of her did little to cut an inroad into her credibility.
[48] Does the possibility that the drugs were planted leave a reasonable doubt on the issue the Crown must prove, Ms. Simmons knowledge of the cocaine? The high certainty demanded by the criminal standard is derived from the grave consequences of a criminal finding of guilt; that is, the social stigma, the potential loss of liberty and other social, psychological and economic harms (see Dickson J. as he then was in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 at S.C.R., pp. 119-120). Beyond a reasonable doubt is closer to absolute certainty than it is to probability: R. v. Starr, 2000 SCC 40, [2000] S.C.R. 144, at para. 242 per Iacobucci J. The finder of fact must be “sure”: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 39
[49] Applying my best judgment to what is a deceptively simple record, I conclude that although this is a close case, I am not sure of Ms. Simmons guilt. Her evidence outlined the opportunity a third party would have for putting the cocaine in the suitcases. I do not believe her, but I do not reject her evidence altogether either. Her evidence, in the context of the disavowal of the cans at secondary, falls into the no-man’s land of reasonable doubt. The Crown has not proven the case against her to the high degree of certainty required. She is found not guilty.
The Case Against Mr. Freire and Mr. Mendes
[50] The other two accused run what could be called a “coattails defence.” They are riding on the coattails of Ms. Simmons’ testimony. There are similarly situated in many respects. They travelled together and stayed at the same hotel together. Ms. Simmons testified that all their bags were left at the hotel for the same amount of time and were checked in at the airport for the flight back at essentially the same time. The same cans were found in their bags and in the same quantity. They too disavowed knowledge upon the cans being discovered by the BSOs, as had Ms. Simmons. While Ms. Simmons testified and denied knowingly importing the drugs, by their not guilty plea, Mr. Freire and Mr. Mendes dispute their guilt as well.
[51] There is at least one important difference with respect to Mr. Freire. BSO Innocente testified that when questioned at secondary, Mr. Freire said that he was travelling alone. If this was said, it could be a deliberate falsehood capable of having serious ramifications against him. It could demonstrate a reluctance to be associated with the other two accused and consciousness of guilt with respect to knowledge of the drugs.
[52] However, like the other border officers, BSO Innocente’s notes and the narrative which he wrote afterwards left a great deal to be desired. The Crown did not argue otherwise. The notes did not include the questions to the answers purportedly made, they were not verbatim and they were not made until about two hours after the interaction. The answers were not noted in the sequence they were given. The trial was more than two years after the discovery of the drugs and it was evident that the officer had little if any independent recollection. Officer Innocente admitted that his note-taking was poor.
[53] There was another problem with BSO Innocente’s evidence. In examination in-chief, BSO Innocente said that the Freire bag was locked when he examined it at secondary. Mr. Freire provided him with the key. At the preliminary hearing, BSO Innocente had again said that a key was provided, but added that the bag was already unlocked. Mr. Freire, according to BSO Innocente’s preliminary hearing testimony, exclaimed at the time that the bag had been locked previously.
[54] When pressed in cross-examination at trial that the key appeared to be a false memory, BSO Innocente stuck to his evidence that there was a key. However, the video of the search at secondary when it was played in court demonstrated that the bag was not locked. There was no evidence on the video that a key was handed to BSO Innocente or shown to him by Mr. Freire.
[55] Mr. Strezos argued in submissions that BSO Innocente was lying. The Crown responded that it was not open to Mr. Strezos to allege the officer was lying because he had not put the accusation to him in cross-examination.
[56] This Crown submission appeared to be anchored by the rule in Browne and Dunn. However, this is not a Browne and Dunn situation. There is no doubt that the officer, if it had been suggested that he was lying, would have denied it. There was no obligation on counsel to allege he was lying simply to allow the witness the empty opportunity to deny it. The absence of a meaningless confrontation of this kind did not constitute an adversarial ambush of the type the rule in Browne and Dunn was designed to address: see R v. Croft, 2018 ONSC 4942 at para. 22.
[57] That being said, I do not believe that BSO Innocente was lying. I do believe however, based on the poor quality of his notes and his faded and inconsistent recollection, including with respect to the key, that his evidence was unreliable. I would place no weight, in the context of all the evidence, on the alleged statement of Mr. Freire that he was travelling on his own.
[58] In conclusion, although it may be theoretically possible for a different verdict to be rendered for Mr. Freire and Mr. Mendes than rendered for Ms. Simmons, it would be a stretch of logic. For essentially the same reasons as given for Ms. Simmons, I am not convinced of their guilt to the beyond a reasonable doubt level. They are both found not guilty.
[59] As a matter of housekeeping, the Crown agreed not to proceed on the redundant conspiracy count in the indictment against the three accused. That was beneficial to the trial process as counsel did not have to painfully and needlessly wend their way through the labyrinth of the law of conspiracy. As a result of this and efficient overall case management by all counsel, this trial was extremely brief, the whole thing start to finish being completed in two and a half days.
[60] The accused, having been found not guilty on the importing, must necessarily also be not guilty of the conspiracy. Verdicts of not guilty will be entered on that count as well as the substantive importing count.
D.E HARRIS J.
Released: November 13, 2019
COURT FILE NO.: CR-18-1048-00
DATE: 2019 11 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BRUNO FREIRE, PEDRO MENDES and PAULA SIMMONS
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: November 13, 2019
[^1]: From transcript of a BBC television program, 'The Pleasure of Finding Things Out' (1981). In Richard Phillips Feynman and Jeffrey Robbins (ed.), The Pleasure of Finding Things Out: The Best Short Works of Richard P. Feynman (2000), p. 24