COURT FILE NO.: CR-14-68
DATE: 2020 04 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
E. Taggart, for the Public Prosecution Service of Canada
- and –
DARRYL BRODERICK
A. Edgar, for the defendant
HEARD: November 12-15, 2019, January 17, 2020
REASONS FOR JUDGMENT
D.E HARRIS J.
[1] Darryl Broderick arrived at secondary inspection at Toronto’s Pearson International Airport on March 12, 2012. He had flown in on a flight from St. Lucia in the Caribbean. A Border Services Officer (BSO), being suspicious of his bag, x-rayed it. A false compartment was apparent which was ultimately found to house 1.44 kilograms of cocaine.
[2] At trial, the only issue was whether the accused had knowledge of the cocaine in his suitcase. I found that the Crown had failed to prove knowledge beyond a reasonable doubt and acquitted Mr. Broderick. These are my reasons for that decision.
[3] The decisive piece of evidence which led to the acquittal was a yellow carbon copy Westjet mishandled baggage form found in Mr. Broderick’s checked bag, the same bag in which the cocaine in the hidden compartment was found. Ms. Taggart for the Crown fairly conceded that it appeared that this was a genuine document.
[4] The form was dated the day of Mr. Broderick’s flight into St. Lucia, March 8, 2012. His name, his mother’s address, and his phone number, email and booking reference number were included. Under the baggage information, a general list of items was written, including clothing, shoes, toiletries, glasses and jewelry. There were several different types of longhand writing on the form.
[5] In his evidence, Mr. Broderick clarified the nature of the document, which, in any case, was quite clear on its face. After disembarking in St. Lucia, his bag did not come out with the other passengers’ bags. He reported it missing and this form was filled out. Some of the writing on the form was his. Some was not, like the general items contained in the bag. He signed the form. He received the carbon copy which was found in his checked luggage.
[6] There were several phone numbers recorded on Mr. Broderick’s cellphone which I am satisfied were Westjet numbers and the St. Lucia airport phone numbers. Mr. Broderick testified that he had used his cellphone to inquire about his lost bag. Finally, two days after the bag was lost, on March 10, 2012, Mr. Broderick received a call that the bag had been found. He went to the airport after hours. A man was standing outside in the dark with the bag. This appeared unusually informal, even for a small airport, but not much can be drawn from it.
[7] The mishandled baggage document demonstrated to some degree of certainty that Mr. Broderick’s bag was lost upon his arrival. It is an available reasonable inference that some person or persons unknown, constructed the professionally designed hidden compartment and placed the drugs in it during the time the bag was out of Mr. Broderick’s possession.
[8] Mr. Broderick testified that at the time, he was living in Edmonton and was working as a DJ in clubs and private venues and was promoting parties. The purpose of going down to St. Lucia was to explore doing similar work down there. Ricky Nelson, his sister’s baby father, used to live in Toronto but had fallen into trouble with the law and was deported. He was now in St. Lucia and had encouraged Mr. Broderick to come down there.
[9] Ricky had been charged criminally together with a man by the name of Mark Agar. Mark’s previous charges had been dropped but Ricky’s had not. Mr. Agar, perhaps coincidentally, was Mr. Broderick’s roommate at the time of the alleged importing offence at issue here.
[10] Besides being interested in business opportunities, Mr. Broderick needed a vacation—he had just broken up with his girlfriend. Mark Agar knew he was going down there and also knew where the suitcase he was taking down with him was stored in the residence they shared.
[11] In Mr. Broderick’s evidence, it was implied that Ricky, in league with Mark Agar, could have been behind the secreting of the drugs in the checked bag. Mark would be able to retrieve the drugs from the closet in the basement of their residence where the bag would be returned after the trip.
[12] The defendant’s mother Carmen Mandden testified. She is a retired nurse. It was her evidence that she had met both Mark Agar and Ricky Nelson when she lived in Edmonton. Ricky Nelson was the father of her daughter’s child. Ms. Mandden was a credible witness.
[13] The Crown made a third party suspect application to investigate Ricky Nelson and Mark Agar. The trial was adjourned for this purpose.
[14] After returning from this adjournment granted, the Crown had no additional evidence to lead in reply. The Crown, however, had disclosed to the defence Mark Agar’s criminal record. It included three convictions for drug trafficking, the most recent from 2006. This added plausibility to the defence implication that Mark Agar and Ricky Nelson had planted drugs, unbeknownst to Mr. Broderick, in the suitcase during the time it was missing in St. Lucia.
[15] To be sure, there were some holes in Mr. Broderick’s credibility. He stated in examination-in-chief that he had never used illicit drugs. But his criminal record had an entry for possession of drugs from 2002. There was also a possession for the purpose of trafficking from 2019. Furthermore, he has a significant but dated criminal record for crimes of dishonesty, including break and enter as a youth, use of a stolen credit card and fail to comply with bail release.
[16] Ms. Taggart for the Crown argued that Mr. Broderick’s criminal record could be used for more than the credibility purpose authorized by Section 12 of the Canada Evidence Act and discussed in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385.
[17] It was her argument that because Mr. Broderick had at least implicitly accused other men of the crime, it was only fair to allow the Crown to counter by pointing to his propensity as suggested by his criminal record. She relied upon the leading case in this area: R. v. Parsons, (1993) 1993 CanLII 3428 (ON CA), 15 O.R. (3d) 1, 17 C.R.R. (2d) 104 (C.A.) at para. 25, also see R. v. Rodgers, (2000), 2000 CanLII 2144 (ON CA), 144 C.C.C. (3d) 568 (Ont. C.A.) at para. 21; R. v. Truscott, (2006), 2006 CanLII 60337 (ON CA), 213 C.C.C. (3d) 183 (Ont. C.A.) at para. 33; R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493 at para. 91.
[18] I think Ms. Taggart was correct to look to Parsons to pit the propensity of the accused against the propensity of Mark Agar and Ricky Nelson. However, the problem is that Mr. Broderick had no prior convictions which showed a propensity to knowingly import drugs. A possession of drugs conviction does not imply a propensity to traffic or import.
[19] There was a conviction for possession for the purpose of trafficking on Mr. Broderick’s criminal record but it was entered in 2019. The offence date must have been subsequent to the 2012 offence date in the matter at hand.
[20] It is conceivable that a subsequent conviction could be used to infer prior propensity. The double inference involved in propensity reasoning is from an act, to a conclusion of propensity, to the act or mental element in question: 1A Wigmore on Evidence, s. 55.1, pp. 1060-1061; R. v. Batte, (2000) 2000 CanLII 5751 (ON CA), 34 C.R. (5th) 197 (Ont. C.A.) at p. 224.
[21] If it is a sound methodology to come to a propensity conclusion based on a subsequent act, which I am willing to assume for the purpose of argument, at the very least this process greatly attenuates the strength of the resulting inference.
[22] Justice Binnie said in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908:
35 The dangers of propensity reasoning are well recognized. Not only can people change their ways but they are not robotic.
(i) Proximity in Time of the Similar Acts
122 Lapse of time opens up a greater possibility of character reform or "maturing out" personality change, and would tend to undermine the premise of continuity of character or disposition.
[23] Building on these comments, reasoning that a subsequent act reveals a propensity that can be extended back in time is premised on a dubious proposition. The propensity apparent from the subsequent act must be found to have existed at the time of the events particularized in the indictment. While Mr. Broderick might have trafficked recently, that does not mean he had the propensity 6 years previous to do so. The intervening circumstances cannot be known and have the effect of substantially diminishing the power of the conclusion sought to be drawn by the Crown.
[24] In the final analysis, although I have more than mild suspicions with respect to Mr. Broderick’s guilt in this case based on all the evidence, the beyond a reasonable doubt standard requires much more than this. The fact that the bag found to contain the cocaine was lost for a period of two days, as attested to by the Westjet form, the accused and buttressed by evidence of his phone calls to Westjet and the St. Lucia airport, was an insurmountable obstacle to the Crown satisfying its burden.
[1] The alternative inference that someone, perhaps in league with Ricky Nelson and Mark Agar and perhaps not, secured the bag when it arrived in St. Lucia, built the secret compartment and secreted the cocaine, is a reasonable one: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. The relatively small proportionate weight gain attributable to the cocaine would not have led anyone to notice the difference. Furthermore, Mark Agar was in a good position to retrieve the drugs from the bag upon Mr. Broderick’s return.
[2] It was for these reasons that Mr. Broderick was found not guilty of the importing charge against him.
D.E HARRIS J.
Released: April 3, 2020
COURT FILE NO.: CR-14-68
DATE: 2020 04 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
DARRYL BRODERICK
Defendant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: April 3, 2020