COURT FILE NO.: CR-18-963
DATE: 2019 11 13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Cindy Alfonso, for the Crown
– and –
COURTNEY BURKE
John Kaldas, for the Defendant
HEARD: September 17, 18 and 19, 2019
REASONS FOR JUDGMENT
Doi J.
Overview
[1] Courtney Burke is charged with one count of importing cocaine into Canada contrary to ss. 6(1) of the Controlled Drugs and Substances Act. Mr. Burke agrees that liquid cocaine was found in three (3) liquor bottles that he brought back to Canada in a duty-free box from a trip to Jamaica. The sole issue in this case is whether Mr. Burke knew that the bottles contained cocaine.
Background
[2] On July 6, 2017, Mr. Burke returned to Canada after spending a week in Jamaica. His flight landed at Pearson International Airport around 10:00pm that evening.
[3] Mr. Burke exited his plane and proceeded through the arrival terminal with his carry-on luggage and a cardboard duty-free box. At the documentation verification kiosk, he spoke with Border Services Officer Perera who reviewed Mr. Burke’s passport and customs declaration. In response to screening questions, Mr. Burke advised that he had returned from a trip to Jamaica to visit family and conduct business. BSO Perera felt that Mr. Burke gave vague answers and seemed nervous because he shifted his weight and avoided eye contact. But BSO Perera did not record his impressions or Mr. Burke’s exact responses, or otherwise recall details of Mr. Burke’s conduct or appearance. BSO Perera concluded that Mr. Burke required further screening and referred him to a triage officer.
[4] Mr. Burke then spoke with BSO Khan, a triage officer, who confirmed and noted certain details that Mr. Burke had not included in his customs declaration form. Mr. Burke told BSO Khan that he had left Canada for Jamaica on June 19, 2017 with his girlfriend who had bought his ticket with cash about a week before their trip. Mr. Burke also advised that he had handled some family affairs in Jamaica, that he was unemployed, and that his girlfriend was to return to Canada the following week. BSO Khan did not notice Mr. Burke displaying any signs of nervousness. After speaking with Mr. Burke, BSO Khan referred him for an inspection in the secondary examination area of the arrival terminal.
[5] Mr. Burke continued through the arrival terminal and approached BSO Santos who was conducting a Canada Border Services Agency blitz of all inbound travellers from Jamaica that were carrying duty-free boxes, which had been identified as a means for smuggling contraband. As Mr. Burke was carrying a duty-free box, BSO Santos checked his customs declaration form which indicated that Mr. Burke had arrived on a flight from Jamaica. BSO Santos confirmed Mr. Burke as a blitz target and referred him for an inspection in the secondary examination area. While doing this, BSO Santos saw that the seal along the top of Mr. Burke’s duty-free box had a gap as it had not been affixed flush with the box, although the box was closed and sealed. Notably, BSO Santos could not determine whether the duty-free box had been opened after the seal was applied.
[6] As BSO Khan and BSO Santos had referred him for further inspection, Mr. Burke attended the secondary examination area in the arrival terminal where he met BSO Le. Responding to questions, Mr. Burke advised BSO Le that he had been in Jamaica for about a week and regularly visited Jamaica every 3 to 4 months. Mr. Burke explained that his girlfriend had bought his ticket to Jamaica with cash about a week prior to departure. When asked about his employment, Mr. Burke told BSO Le that he had worked as a roofer.
[7] BSO Le was trained to identify suspicious travellers. He did not recall Mr. Burke showing any suspicious characteristics during his inspection in the secondary examination area.
[8] BSO Le conducted a search of Mr. Burke’s luggage that was uneventful and disclosed no contraband.
[9] Turning to the duty-free box, BSO Le noted that it was made of brown cardboard and had been sealed and wrapped with yellow tape. BSO Le found nothing unusual with the box. When he opened it, BSO Le found three bottles covered in brown paper. The first was a bottle of Colbeck brand Jamaica Ginger Wine, and the other two were bottles of Wray and Nephew brand Rum Cream.
[10] BSO Le examined a Rum Cream bottle and saw that the content at the top of the bottle had crystallized with a chunky consistency. Believing this to be unsettled liquor, he shook the bottle but the crystallized content failed to dissolve. On closer inspection, he saw that the content on the bottom of the bottle had solidified and taken on a white-beige colour.
[11] BSO Le alerted his supervisor to the potential for contraband, opened the Rum Cream bottle, and used a field swab from a Narcotics Identification Kit (“NIK”) to test the bottle. The NIK swab revealed the presence of cocaine.
[12] BSO Le arrested Mr. Burke for importing cocaine. Mr. Burke was cautioned, spoke with duty counsel, and was moved to a detention cell.
[13] At the time of his arrest, Mr. Burke has $505.00 in Canadian currency and $2,000.00 in Jamaican currency (i.e., equal to approximately $25 Canadian) in his possession.
[14] While in custody, Mr. Burke asked for his diabetes test kit to be retrieved from his luggage. Using the kit, he tested a blood sample that revealed a high blood sugar level. Mr. Burke asked for his insulin, but it had been left unrefrigerated and could not be used. Border officers called paramedics who assessed Mr. Burke and took him to hospital for non-urgent care. Hospital staff treated Mr. Burke for his diabetes and medically cleared him to return to custody. Border services officers returned Mr. Burke to the airport detention area where RCMP Constable Choudhray arrested him for importing cocaine. Mr. Burke was cautioned and spoke with duty counsel. Constable Choudhray seized the contraband and assumed custody of Mr. Burke and his belongings.
[15] Mr. Burke was composed and cooperative throughout his interactions with border officers and police.
[16] The RCMP returned Mr. Burke’s personal belongings, except for some perishable items that were discarded.
[17] The RCMP had the contents of the duty-free bottles tested by Health Canada. Each bottle was found to contain liquid cocaine. The total amount of the cocaine, once distilled from its liquid form, was 1446 grams. The value of the seized cocaine ranges from $69,408.00 (i.e., if sold in bulk at the kilogram level) to $173,520.00 (i.e., if sold by the gram).
Position of the Parties
[18] From the circumstances of this case, the Crown submits that the only reasonable inference to draw is that Mr. Burke knew that the bottles in the duty-free box contained cocaine. As such, the Crown submits that it has proven its case beyond a reasonable doubt.
[19] The Defence argues that the evidence raises a reasonable doubt as to whether Mr. Burke knew that the bottles contained cocaine. Accordingly, the Defence submits that the Crown has failed to prove this essential element of its case.
The Law
[20] The Crown has the onus of proving beyond a reasonable doubt that Mr. Burke knew that he was importing cocaine into Canada: R. v. Starr, 2000 SCC 40 at para 321; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 at para 36. Mr. Burke is presumed to be innocent.
[21] Mr. Burke testified in his defence. Should I believe his evidence, I must acquit him. Even if I disbelieve his evidence, I must find him not guilty if his evidence leaves me with a reasonable doubt as to whether he knew the bottles contained cocaine. Finally, even if I am not left in doubt by his evidence, I may only find him guilty if the whole of the evidence that I do accept proves beyond a reasonable doubt that he knew that the bottles contained cocaine: R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). These principles need not be applied in any formulaic manner.
[22] The Crown’s evidence that Mr. Burke knew the bottles contained cocaine is circumstantial. Knowledge may be proven by circumstantial evidence based on reasonable inferences from the facts: R. v. Bryan, 2017 ONSC 2244 at paras 19-23. To convict in a circumstantial evidence case, the court must be satisfied beyond a reasonable doubt that the only rational inference to draw from the circumstantial evidence is that the accused is guilty: R. v. Villaroman, 2016 SCC 33 at para 18. In deciding whether reasonable doubt exists, the court may look to alternate rational possibilities based on the evidence or lack thereof: Villaroman at para 36; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 at para 36. If there are reasonable inferences other than guilt, the Crown will not meet the standard of proof beyond a reasonable doubt: Villaroman at para 35.
Analysis
Mr. Burke’s Evidence
[23] I do not believe Mr. Burke’s evidence. It contained errors, inconsistencies and convenient explanations that seem implausible. Mr. Burke was not a credible or reliable witness.
[24] Mr. Burke initially gave dates and timeframes for his trip to Jamaica that clearly were inaccurate. He initially said that he flew to Jamaica on June 19, 2019 and spent more than two weeks there visiting his ill mother. But his passport entry-stamp was dated June 29, 2017 and clearly shows that he spent only a week in Jamaica before returning to Canada on July 6, 2017. Mr. Burke initially claimed that he bought the duty-free liquor about a week into his trip. But his receipt for the purchase clearly shows that he bought the liquor on July 3, 2017, just a few days after he arrived in Jamaica. He later conceded under cross-examination that the dates he initially gave were incorrect because his memory had faded.
[25] Mr. Burke had $505.00 in cash when he was arrested. But he had only limited financial means and claimed that he had been unable to afford airfare to Jamaica when he decided to visit his mother after learning that she was ill. A round-trip ticket to Jamaica cost about $600.00 but Mr. Burke claimed to have only $350.00 after paying living expenses, leaving him unable to afford airfare. To visit his mother, Mr. Burke said that his girlfriend bought his return ticket after he promised to repay her later. However, when asked how he got $505.00 during his trip, Mr. Burke became evasive and initially declined to answer. He then claimed that he withdrew the $505.00 from his bank account in Jamaica, but his bank book revealed that his account had only a balance of about $25.00 in Canadian funds at the time. Mr. Burke later claimed that he withdrew the $505.00 from a different Jamaican bank account with a debit card but grew uncertain as to how exactly he withdrew the cash. In view of his limited finances and inconsistent explanations, I do not accept Mr. Burke’s explanation as to how he came to have $505.00 upon returning from a trip that he initially could not afford.
[26] According to Mr. Burke, his girlfriend decided to accompany him to Jamaica and bought two round-trip tickets with cash from a travel agency about a week before they departed. Mr. Burke also said that a friend named Tony drove them to Pearson International Airport for their departure flight to Jamaica. However, Mr. Burke could not remember Tony’s last name or where he lives despite having met Tony after he hired Mr. Burke to drive him to work. Mr. Burke’s evidence about Tony is difficult to believe.
[27] Immediately before their departure from Pearson International Airport, officials apparently informed Mr. Burke’s girlfriend that her immigration landing card had expired. They also advised that she could fly to Jamaica and go to the Canadian embassy to ask for a new landing card which she would need to return to Canada. As such, Mr. Burke’s girlfriend extended her stay in Jamaica by a week and remained a guest in his mother’s home. When asked why he did not also extend his stay, Mr. Burke said that he had to return home to care for his girlfriend’s children who were on their own. However, in cross-examination, Mr. Burke stated that the eldest child was 18 years old and had taken care of the younger children while he and his girlfriend went to Jamaica. Acknowledging that the children were cared for, and that he did not need to return home for work or other scheduled reasons, Mr. Burke said that he did not change his return flight to avoid incurring a fee for changing his ticket despite not actually knowing the amount of the fee, if any.
[28] Mr. Burke did not have a pressing need to return home and had expressed a strong desire to spend as much time as he could in Jamaica with his ill mother who unfortunately passed away several months later. As such, it seems inconsistent that Mr. Burke did not take the opportunity to extend his stay in Jamaica with his girlfriend. I add that a fee to change his flight may not have been a major barrier as Mr. Burke apparently withdrew $505.00 from a Jamaican bank account and brought the money home to Canada.
[29] During cross-examination, Mr. Burke claimed to have a clean record. But when shown his actual criminal record, he admitted to having prior convictions for impaired driving, assault and uttering threats. He later explained that his record was not clean but did not include drug or gun related convictions and, therefore, was “not too bad” in his view. Regardless, his evidence of a clean record clearly was incorrect and detracted from his credibility.
[30] I find that Mr. Burke’s evidence was not credible or reliable. Despite the passage of time and allowing for his lack of formal education and somewhat unsophisticated nature, there were moments when his memory failed him significantly. This was particularly true when he initially described the timeframes for his trip to Jamaica. He was evasive when asked about the $505.00 that he had upon returning from the trip he initially could not afford, and gave vague and unsupported answers when pressed. He did not remember personal details of the friend who drove him and his girlfriend to the airport for their trip to Jamaica, which seems improbable. He gave an unpersuasive explanation as to why he did not remain in Jamaica when his girlfriend extended her stay. Mr. Burke also testified incorrectly about his criminal record. As such, I find that Mr. Burke’s testimony lacked credibility and was not reliable.
Reasonable Doubt
[31] Even if I disbelieve Mr. Burke, the defence submits that I should find him not guilty on account of two (2) matters raised by the defence that raise reasonable doubt of Mr. Burke’s knowledge of the cocaine. As set out below, I agree with this submission.
a. Mr. Burke’s Duty-Free Box
[32] The first matter relates to how Mr. Burke got the duty-free box containing the cocaine past airport security in Jamaica.
[33] While shopping in downtown Kingston, Mr. Burke and his girlfriend apparently came upon a duty-free store where he bought three bottles of spirits. After paying for his purchase, Mr. Burke obtained a receipt dated July 3, 2017 that instructed him to collect his purchase from the duty-free store at the Kingston airport before boarding his return flight to Canada.
[34] On July 6, 2017, Mr. Burke flew home to Canada. Prior to his departure, Mr. Burke arrived at the airport in Kingston and checked his luggage. Then, following the instructions on his duty-free invoice, he said that he picked up his liquor at the duty-free store that was in the concourse outside the secure area of the airport terminal.
[35] Inside the duty-free store, Mr. Burke presented his purchase receipt, passport and boarding pass. In return, he got a sealed duty-free box containing the three bottles of liquor that he had purchased earlier. Mr. Burke said that he did not see the liquor bottles being placed in the duty-free box because store attendants packaged the box behind a screened area.
[36] According to Mr. Burke, two security guards then escorted him from the duty-free store to the queue for the airport security screening area. He claims that the security guards waited with him until his turn came to go through the security screening area. After he completed his security screening, Mr. Burke claims that the guards escorted him to an elevator and up to the second floor of the terminal where they walked him to the food court before leaving. Mr. Burke bought a meal that he ate in the food court before heading to his departure gate to board his flight home.
[37] During the flight home, Mr. Burke kept the duty-free box under his seat. He claims that the duty-free box remained sealed and in his possession until BSO Le opened it during his secondary inspection at Pearson International Airport.
[38] Mr. Burke denies that he knew about the cocaine in the bottles before BSO Le opened his duty-free box. Mr. Burke claims that he is an innocent mule who inadvertently became a blind courier for a drug importation scheme that duty-free store attendants perpetrated as an inside job. He adds that his evidence of the security guards escorting him through the airport security screening area is credible because he otherwise could not have brought the liquids in the duty-free box through airport security in Jamaica.
[39] The Crown dismisses Mr. Burke’s explanation and submits that his evidence of the security guards in Jamaica escorting him through airport security and upstairs to the food court was a highly inefficient and, therefore, unlikely process that he conveniently described in order to give a chronology that removed any opportunity for him to switch the bottles in the duty-free box. Under cross-examination, Mr. Burke conceded that additional guards were not waiting in the airport duty-free store to escort other travellers who bought duty-free items. He also could not say whether security guards escorted other travellers with duty-free purchases through the airport security screening area in similar fashion. Mr. Burke did not know whether the guards that escorted him through the airport were part of the airport’s security team or the duty-free store’s security team. Nor could he explain why the guards would have escorted him up to the food court (i.e., instead of simply leaving after he cleared the security screening area). The Crown also noted the absence of any evidence regarding airport security procedures in Jamaica and urged caution in making any inferences as to the (in)ability of a traveller to bring liquids into the secure area of the airport terminal.
[40] I recognize that many airports restrict travellers from bringing liquids through security screening areas. However, the evidence in this case does not reveal what, if any, security measures were in place at the Kingston airport to restrict or limit travellers from bringing liquids (i.e., particularly duty-free liquor purchases) through its security screening area. The Crown’s theory is that Mr. Burke was unaccompanied after he collected his sealed duty-free box from the airport duty-free store, which gave him an opportunity at some point to open the box and replace its liquor bottles with those containing cocaine. To this end, the Crown relied on the evidence of BSO Santos who had referred Mr. Burke for secondary examination at Pearson International Airport after seeing him carry the duty-free box with a seal that apparently was not flush and had a gap. But during the secondary examination, BSO Le found nothing unusual with the duty-free box which was sealed. Finding it to be normal, BSO Le did not photograph the box before opening it and discovering the cocaine.
[41] In their submissions, both parties acknowledged that Mr. Burke had picked up a duty-free box at the airport’s duty-free store. What remains unclear is how the bottles containing the cocaine ended up in the duty-free box, and how the contraband got through airport security in Jamaica. The Crown submits that Mr. Burke likely opened the duty-free box sometime after he acquired it to switch the bottles. However, on the evidence before me, I am unable to determine whether the box had been opened after it was sealed. Having examined the glue residue along the edge of the seal affixed to the top of the duty-free box, which is now opened, I recognize that it is possible that the seal may have shifted or moved at some point after it was applied to the cardboard box. But whether the seal shifted or moved when BSO Le opened the duty-free box, or sometime beforehand, if at all, is impossible to determine from looking at the box at this time.
[42] Mr. Burke testified that he carried the duty-free box as he walked through the arrival terminal at Pearson International Airport. At some point, he claims that his hands began to perspire (i.e., apparently due to his diabetes) which caused the cardboard carrying handle along the top of the duty-free box to dampen and partially rip from the weight of the bottles. After the carrying handle ripped, Mr. Burke carried the box under his arm as he continued to make his way through the arrival terminal. Apart from the partially torn carrying handle, Mr. Burke said that the duty-free box remained undamaged until BSO Le opened it.
[43] On the evidence before me, I cannot determine whether the duty-free box had been opened or tampered with before BSO Le opened it. As such, I am unable to conclude whether the bottles in the duty-free box had been switched with those containing the cocaine. Mr. Burke claims that he went through airport security screening in Jamaica with the duty-free box that remained sealed until it was opened by BSO Le. The defence submits that staff at the duty-free store in Jamaica planted the cocaine in Mr. Burke’s duty-free box as part of an inside job to import the cocaine to Canada.
[44] As previously stated, I have real reservations with Mr. Burke’s credibility and reliability with respect to the matters set out earlier in these reasons. That being said, I find that the question as to how the cocaine got through airport security in Jamaica cannot be answered from the evidence in this case. I do not accept the Crown’s theory that Mr. Burke opened the duty-free box to switch the bottles with those containing the cocaine because I am unable to determine whether the duty-free box was opened before BSO Le opened it. In my view, the unanswered question as to how the cocaine got past airport security in Jamaica raises reasonable doubt as to whether Mr. Burke knew that the duty-free box he brought back to Canada contained cocaine.
b. The ABC Kiosk
[45] The defence also submits that events related to Mr. Burke’s use of a self-serve Automated Border Clearance (ABC) kiosk to scan his passport and customs declaration form in the arrival terminal at Pearson International Airport raise reasonable doubt as to his knowledge of the cocaine in his duty-free box.
[46] When Mr. Burke landed at Pearson International Airport, he made his way through the arrival terminal to the ABC kiosk area where a number of travellers were moving through customs. His actions in the kiosk area were recorded clearly in security video footage.
[47] Mr. Burke waited for his turn to use an ABC kiosk. When his turn came, Mr. Burke went to a kiosk and, with some help from a border services staff member, scanned his passport and customs declaration form. To free his hands to use the machine, Mr. Burke placed the duty-free box on the floor before using the kiosk. When he finished using the kiosk, the assisting staff member directed Mr. Burke to proceed to the next area of the terminal. Following her directions, Mr. Burke began moving to the next location while pulling his carry-on luggage. In the course of doing so, Mr. Burke forgot to pick up his duty-free box. He walked a distance away from the kiosk before realizing that he had left the duty-free box behind. He then turned around and walked back to the kiosk. After asking another traveller at the kiosk to step aside, Mr. Burke retrieved his duty-free box and resumed walking over to the next area of the airport terminal. The security footage clearly shows Mr. Burk walking in a calm, unhurried and composed manner. He appears unconcerned by the fact that his box had been left behind unattended in the busy kiosk area.
[48] The defence claims that the video of Mr. Burke forgetting the duty-free box is telling and important because it gives insight into his state of mind. Had he knowingly smuggled high-value cocaine, the defence submits that Mr. Burke would not have absentmindedly left the contraband behind, only to calmly return to retrieve it from a busy part of the terminal without rushing despite the risk of the contraband being found or taken.
[49] The Crown does not dispute that Mr. Burke forgot his duty-free box but characterizes it as a simple momentary slip of his mind. I appreciate that Mr. Burke’s failure to remember the duty-free box lasted only briefly. However, his forgetfulness is inconsistent with how an informed drug courier with knowledge of his valuable cargo would have reacted in that situation. Had he known that his duty-free box contained cocaine, I find it unlikely that Mr. Burke would have forgotten his valuable contraband, even momentarily. Moreover, given the number of travellers and staff in the ABC kiosk area who might have taken, reported or confiscated the unattended box, a courier knowing of the contraband would have displayed some concern or urgency upon realizing that the box was unattended. In my view, Mr. Burke’s calm and unhurried pace while retrieving his box was inconsistent with how a courier who knew of the contraband would have acted.
[50] Although BSO Perera testified that Mr. Burke’s demeanour suggested nervousness because he did not make eye contact and shifted his body weight, these observations from his brief interaction with Mr. Burke at the document verification kiosk were not recorded in his notes. BSO Perera did not recall other features about Mr. Burke, such as the clothing that he wore that evening, which detracted from his evidence. Moreover, none of the other border officers who dealt with Mr. Burke that evening claimed that he displayed any suspicious characteristics. As such, I do not rely heavily on BSO Perera’s evidence.
[51] The Crown relied on several authorities to support an inference that Mr. Burke knew about the cocaine because high-value contraband would not likely be placed under the control of an unknowledgeable or blind courier for the purposes of importation: R. v. DaCosta, 2017 ONCA 588 at paras 20-21; R. v. Bryan, 2017 ONSC 2244 at paras 19-24; R. v. Ukwuaba, 2015 ONSC 2953 at paras 101 and 102(6). Courts recognize that cocaine importers are unlikely to entrust valuable contraband to the control of an unknowledgeable courier with the risks that such a surrender could engage: R. v. Dacosta, 2015 ONSC 1478 at para 210; affirmed 2017 ONCA 588 at paras 21-22.
[52] In this case, the value of the cocaine found in the duty-free bottles ranges from $69,408.00 to $173,520.00, depending upon how it is sold. Given its high value, the Crown submits that drug importers would have been unlikely to smuggle the contraband using Mr. Burke if he was not a trusted member of the smuggling operation. However, Mr. Burke’s apparent failure to remember the duty-free box after using the ABC kiosk contradicts this inference and suggests a lack of awareness or appreciation of any high-valued contraband in the box. Indeed, Mr. Burke exercises a lack of care in safeguarding his cargo that otherwise would be expected of a courier who knew of the contraband that s/he has been entrusted with. As such, and on the facts of this case, I am not persuaded that the only reasonable inference to draw is that Mr. Burke knew of the cocaine that he had brought into Canada.
[53] After absentmindedly leaving his duty-free box behind, Mr. Burke returned to the kiosk in calm and unhurried fashion to retrieve his box. His relaxed manner, which was clearly recorded in security footage, is inconsistent with the actions of a courier who knew that the box contained valuable contraband. Accordingly, I find that this evidence raises reasonable doubt as to whether Mr. Burke knew that the duty-free box contained cocaine.
c. Other Circumstances
[54] The Crown’s case features other circumstantial evidence on which it invites the court to infer Mr. Burke’s knowledge of the cocaine. His airfare to Jamaica was booked just one week prior to travel and paid for with cash. By taking a took a trip that he could not afford, that was booked late (i.e., to mitigate the risk that he might change his mind and not go or report the matter to police) and paid for with cash, the Crown submits that his recruiter acted to avoid detection. The Crown also submits that Mr. Burke’s recruiter would have scheduled his trip with a strict return date (i.e., to ensure that its cocaine was delivered promptly) which would have influenced Mr. Burke’s decision to not extend his stay in Jamaica when his girlfriend remained for an additional week. The Crown further points to the $505.00 in cash that Mr. Burke had when he returned to Canada as a likely advance of his courier fee by the importer. Furthermore, the Crown submits that Mr. Burke could have bought his liquor at the duty-free store in the Kingston airport, but instead purposefully chose to buy his liquor a few days earlier at the downtown duty-free store in order to identify suitable liquor bottles for purchase that could then swapped with bottles containing the liquid cocaine. To this end, the Crown notes that all three duty-free bottles were dark and well suited to concealing the contraband.
[55] I accept that these factors may arguably support a circumstantial case. However, I remain unpersuaded that the only rational inference to draw from these circumstances, along with others mentioned earlier, is that Mr. Burke knew of the cocaine in the bottles. As noted above, Mr. Burke somehow made it through airport security in Jamaica with the duty-free box which appears to have remained sealed until BSO Le opened it during his secondary examination. From the limited available evidence on this point, it is unclear how the bottles of liquid cocaine ended up in the duty-free box or how this contraband got through airport security. In addition, Mr. Burke’s failure to remember his duty-free box in the ABC kiosk area and his calm and unhurried demeanour while retrieving the box struck me as being inconsistent with how a courier with knowledge of the contraband would have acted.
[56] In view of Mr. Burke’s admission that his finances were tight, the Crown further submits that he had a motive to commit a profit-motivated crime: R. v. Burnett, 2018 ONCA 790 at para 106. In contrast, the defence submits that Mr. Burke had limited but adequate income from disability support payments and other income from working as a driver, along with his subsidized housing benefit, to support his modest lifestyle sufficiently. Without any evidence to show that Mr. Burke was living beyond his means or otherwise faced financial pressures when he decided to travel to Jamaica, I find on the facts of this case that the evidence of his low income is not enough to draw an inference that Mr. Burke had a motive to commit a profit-motivated crime.
Conclusion
[57] Based on the foregoing, I find that the Crown has not proven beyond a reasonable doubt that Mr. Burke knew about the cocaine that he brought into Canada. Mr. Burke is acquitted of the charge.
[58] I thank both counsel for their helpful submissions.
Doi J.
Released: November 13, 2019
COURT FILE NO.: CR-18-963
DATE: 2019 11 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
COURTNEY BURKE
REASONS FOR JUDGMENT
Doi J.
Released: November 13, 2019