Information No.: CR-18-00004472
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
DIAMANTE DELRAY SCOTT-LYONS and BRYNN NICOLE SOLES
T R I A L
BEFORE THE HONOURABLE JUSTICE T. CAREY
on March 4, 2020, at WINDSOR, Ontario
APPEARANCES:
J. Lesperance
Counsel for the Crown
J. Rooke
Counsel for the Federal Crown
M. Carroccia
Counsel for D. Scott-Lyons
L. McCurdy
Counsel for B. Soles
ONTARIO COURT OF JUSTICE
T A B L E O F C O N T E N T S
ENTERED ON PAGE
REASONS FOR JUDGMENT
1
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically
Transcript Ordered:
..............................March 6, 2020
Transcript to Judge for Approval:
March 20, 2020 & March 26, 2020, May 29, 2020 & July 15, 2020
Transcript Completed:
.........................November 9, 2020
Ordering Party Notified:
......................November 9, 2020
WEDNESDAY, MARCH 4, 2020
...SUBMISSIONS
R E A S O N S F O R J U D G M E N T
CAREY, J.: (Orally)
For many, many years there was a very proud statement made about Canadian/U.S. relations that it was the longest undefended border in the world. Sadly, that’s not the case anymore. Events that took place in New York City on the 11th day of the 9th month 2001 changed all that and in this particular community, which is often referred to as both the most southern city in Canada and the most American city in Canada. A very free border where citizens of both communities went back and forth with ease, changed. Where licences had been permitted by Canadians to get into the United States, that was replaced with passports, and restrictions on Americans coming into Canada were put in place. All of that was almost 20 years ago.
At the same time we’ve had this remarkable change in how we communicate, the Internet. People don’t take up the phone and book a hotel anymore. They go through various sites. They don’t even go to the site of the hotel, apparently. And I’m taking judicia notice of that, I’ve heard some evidence about that in this particular case. It’s important I decide this case on the evidence I heard and that any judicial notice be of notorious facts not just my experience, and I will note I am one of a handful of judges in this country who regularly travel across the border between Canada and the U.S. to get to a court because the fastest way between Canada – between Windsor and Sarnia, where judges of this courthouse sit, it’s one of eight courthouses in our southwest region. It’s usually much quicker to get there, and I say that as a caveat because the traffic in the tunnel and or the Ambassador Bridge and the traffic on the Bluewater Bridge in Sarnia is unpredictable.
I do take judicial notice that, and I believe it’s agreed that the bridge’s entrance is in central Detroit. That there are signs on the highway approaching Detroit that say “Bridge to Canada” as well as other exits. Going through the toll road onto the bridge does not involve any customs. The entrance, we’ve heard evidence on this, and I accept the evidence, that the entrance to the tolls does not afford a view of the river or Canada, and not until one is on the bridge does a person who’s paying attention notice that they’re crossing the river.
As pointed out by the defendant, Mr. Scott-Lyons, he actually indicated in his evidence he thought that the river was the Detroit River and it was in the center of Detroit. It is, in fact, the Detroit River. And part of Detroit is actually in the middle of the river at Belle Isle just down the river from here. And there’s another bridge that connects mainland Detroit to that island, which is primarily a recreational island. There is a race every year there that we can hear very well, not just in my backyard but in most of Windsor. So, that is a reality of this city and this border crossing.
I’ve heard the evidence of Mr. Scott-Lyons and his former co-accused Ms. Brynn Nicole Soles. The charges have all been dismissed against her already. I accept the rationale of the Crown attorneys for dismissing the charges against Ms. Soles. Those relied on her evidence in part of her knowledge. The Crown attorneys agreed that there should be a reasonable doubt, at the least, on her evidence.
Dealing with her evidence. Ms. Soles is one of, if not, the most believable, witnesses I’ve heard in the time that I’ve been a judge and I’ve just week, actually, yesterday begun my tenth year here.
There was nothing about her evidence that caused me to doubt her credibility. She gave her evidence in a completely forthright and open manner. There was nothing that seemed fabricated. It seemed entirely candid and I accept in its entirety her evidence. And I would say in addition to having dismissed the charges against her I find that she was entirely innocent.
In relation to Mr. Scott-Lyons. His evidence was unique, in some ways, but there was nothing about his evidence that caused me to disbelieve a word he said. He was entirely candid. While he did speak quickly, I accept his evidence as to his intentions in relation to this weekend. It sounds to me and I conclude that he had planned to surprise his long-time partner with a night away in Detroit and I do note that his evidence that he wanted a Detroit, riverside view hotel. It is a point of pride I might say in Windsor that the best views of Detroit are in Windsor. And I accept his evidence as making sense and aligning with common sense that the hotels in Windsor are cheaper and do afford the best views.
There are no hotels on the border in the U.S. side in Greektown that are right on the water and the downtown Detroit waterfront is, with the exception of the hotel (I believe it’s the Marriott) in the Renaissance Centre, there are less hotels in the downtown core on the water certainly than in Windsor. There are a number of hotels including the Holiday Express and the Best Western, and hotels off the waterfront that are higher, that afford Detroit views.
Of course the Canadian dollar is and has been, going back to the time of this event, about 30 percent discounted from the American dollar.
So, I accept his evidence as – in its entirety and on the base of his evidence I dismiss the charges, all of them. I will say that I accept not only that he’s not guilty but that he is innocent of intending to import a substance into Canada. He is innocent as well as not guilty of possessing marihuana for the purpose of trafficking in Canada, and I accept that he was in lawful possession of a firearm in the state of Michigan and had no intention to possess it in Canada. That he had no intention to be in Canada and be in possession of a prohibited firearm in regards to count four. Count five and six are also dismissed against him for the same reason. I accept his evidence. His evidence shows no intention to be in Canada. I conclude that it’s an essential element of all of these charges that there be an intention not just to be in possession of the marihuana or the revolver but to be in Canada. Certainly, the importing charge clearly requires an intention to cross into Canada, but all of these offences are only offences in Canada. If one had no intention and no awareness that they were in Canada they are incapable of having the mens rea to commit the offence.
In addition, these charges require what we would call the actus reus, that the physical location be in Canada. I rely on the decision of the Ontario Court of Appeal in Regina v. Foster, 2018 ONCA 53, 2018, O.J. No. 488 at – and particularly at paragraph 108. This was a case of someone claiming the defence of duress that they had been forced to carry drugs across an international border. And in the course of the decision Justice Watt, who is one of the foremost criminal law jurists in the country and author of a number of texts, says this at paragraph 108:
“Finally, looked at in a functional way, the importing offence in this case was complete in law but not in fact when the contraband was seized on the appellant’s arrest at secondary inspection. While it is true that the courier and the contraband entered Canada at Pearson International Airport, both remained in limbo at the time of the appellant’s arrest. Since the appellant did not clear customs undetected, the object of the importation – to bring cocaine from Jamaica to a Canadian recipient – had not concluded. The importing was not factually complete.”
That statement was made and that’s the end of the quote, but – and is followed under the heading, “Was There a Safe Avenue of Escape”. Justice Watt continues:
“Once we accept that the offence of importing was not complete until the appellant and the contraband cleared customs, it follows that a safe avenue of escape was or remained open with the Canadian Border Services Agency or other law enforcement officers at the airport. Despite the factual differences between this case and Valentini, the decision of this court in Valentini shutters the argument advanced here.”
That is on the defence of duress. That is the end of the quote at paragraph 109 of the decision.
All of the other counts against Mr. Scott-Lyons and the offences against Ms. Soles have been dismissed hinge on their intention to commit an offence in Canada. There is not an absolute liability in criminal law for these offences. There are very few absolute liability defences or offences. By that I mean, as I’ve indicated earlier in my reasons, there has to be the intention. There has to be the conscious knowledge that one is committing an offence. Evidence of that is completely absent in this case against both Mr. Scott-Lyons and Ms. Soles.
As indicated by all counsel the test in Canadian law is that a Crown must prove criminal charges beyond reasonable doubt and defendants must prove nothing. They are presumed innocent in law until the Crown proves the offences beyond a reasonable doubt.
That has not occurred here and has not occurred in part because of the principle set out in R. v. W.D. in the Supreme Court of Canada stands for the proposition that if an accused person calls evidence that if believed gives that person a defence to the charge the person’s evidence is believed they must be acquitted.
I believe the evidence, as I’ve indicated, of both accused people.
As well, even if I disbelieved the evidence called by the defence for both of these accused people I could only convict if I was convinced beyond a reasonable doubt of their guilt.
The evidence for both Crowns, the federal and the provincial Crown, came from three CBSO officers and an RCMP officer. As well, there was evidence put in out of fairness to the accused, of statements they gave to RCMP Officer Rudiak. Both those statements are exhibits in this trial and I have heard their circumstances. They were separated before giving their statements and their statements corroborate each other and corroborate the evidence that they gave at trial.
The first Crown witness, Officer Meilleur CBSA, gave her evidence through an interpreter, two interpreters, who interpreted her evidence from French into English and interpreted the questions for her from English into French. That is the right of any witness in this country, not just in French and English, but in other languages. But this is in additional a bilingual country.
I note that Officer Meilleur gave her evidence in English at the preliminary hearing and while she indicated that she had wanted to give it in French at the preliminary hearing she proceeded without an interpreter as one was not available.
I note all of this because the Crown’s case hinged in large part on the acceptance by the court that among other things the information she was receiving from the two accused people that they were two non-residents, first time in Canada, that they clearly had declared that there were no firearms, no currency being brought in, no commercial goods, and no gifts, fruit, plants, and animals, or duty-free shop purchases. I note on the exhibit that was filed here of what is known as the 8067, that there is a continuous line between the boxes of “no” answers, that are stacked, some seven of them in a row, through those answers. That indicates to me that all of the answers were recorded at once.
I accept that the answers actually were given were given by Ms. Soles and I accept that the officer either didn’t hear what was being said by Mr. Scott-Lyons or really wasn’t interested in his answers.
I accept that once a secondary referral was made that there was discussions by Mr. Scott-Lyons with the two border services officers who searched the car and in those discussions he pointed out that he had marihuana and that he had a gun that was legally his in Michigan. I also accept that he and Ms. Soles made it clear that they just wanted to turn around.
I heard evidence in this case that there is a protocol for people who make a wrong turn. The wrong turn is not uncommon, as the primary officer Meilleur indicated that she’s probably dealt with a hundred people who have been sent back.
We also received evidence that there is a protocol for people who declare their weapon or gun, and that involves either returning to the United States or putting the weapon in a locked box in Canada, and that sometimes that locked box can be transferred back to the United States. So, there is a clear recognition from the Canada Border Services that the difference in law between most of the United States and Canada is different when it comes to the treatment of guns. As well there seems to be a recognition of the experience of many people being both ignorant of where they’re travelling crossing the border and of the laws of Canada as it relates to weapons.
The evidence here was that the two travellers, as they were referred to by the border services officers, were not regularly in Detroit and that the female Brynn Nicole Soles had only once been out of the country on a school trip and that was to Spain.
The evidence of Mr. Scott-Lyons was that he didn’t know you could get to Canada from Detroit. While most Canadians might find this humorous or maybe some people might even find it difficult to believe, it is clearly an ignorance of the border shared by many people that cross here and that has resulted in many wrong-way situations. So, I accept that the knowledge that Windsor is directly south of Detroit is not generally well known in the United States and I do accept that generally Canada is thought of as north of the United States. And it is true, as Mr. Scott-Lyons said, if you drive up through the upper peninsula you will get to Canada but the fact that Canada, at this point being south is an item so unnoted by most Americans, it was a comment of a Ripley’s Believe It or Not column many, many years ago. If those Americans stay long enough and go to the local museum that fact is something that is noted at the community museum.
I had noted earlier my acceptance of the evidence of both accused people. Where it is different from the border officers and the RCMP officer I accept the evidence of the two defendants.
Finally, I've been urged to note the unique circumstances here by the Crown. Neither of these two people had travel documents that would have allowed them to cross into Canada. They were travelling in a vehicle that clearly smelled of marihuana which came to the attention of the border services people as soon any of them had an open window or a door. I accept Officer Meilleur’s evidence that she smelled marihuana. It was not helpful in assessing her evidence that she noted that some five weeks after she noted it but based on all the evidence it would be reasonable that she did smell it and no one suggests that there wasn’t a smell. That smell would be entirely easy to note and would not seem to be consistent with someone who was trying to smuggle anything across the border. It wouldn’t make a lot of sense that someone intended to go across the border would do that: would smoke up and not tell the driver that they were going to Canada and not bring any documentation to get across the border. It makes no sense that that would be done.
I accept the evidence, that’s Exhibit 13, that shows the date of the booking through an outside hotel chain agency for the Best Western Riverfront and the document appears to be checking on satisfaction of the customer. It noted that the reservation was made. That confirms, in large part, the evidence of Mr. Scott-Lyons.
For all of those reasons I acquitted and accepted the submission towards an acquittal of both Ms. Brynn Nicole Soles and I’ve acquitted on the remaining counts Mr. Scott-Lyons.
I finally would say on behalf of the court, I’m sorry that this has occurred. You were both arrested, held in custody for six days and you’ve been put to expense and you have been humiliated. It is undoubtedly an experience that you will not soon forget.
I am unable to say that any of this was, on the evidence I have, other than a series of miscommunications. But it shouldn’t have happened and for that I express this court’s apologies that you were put through this. You were represented by excellent counsel and the federal and provincial governments were represented by very fair counsel who exercised their discretion and really to the fullness set out the facts and complied with their obligations as officers of the court. Not to be persecutors but to be representatives of the attorney general and the minister of justice to see that a fair result occurred. And that has happened. So, thank you. Those are my reasons
I, Joan Maureen Demarco, certify that this document is a true and accurate transcript of the recording of HMQ. v. D. Scott-Lyons & B. Soles, in the Superior Court of Justice, held at 245 Windsor, Ontario, Windsor, Ontario, taken from Recording No. 0899_245-CRTRM4_20200304_095006__10_CAREYT.dcr and which have been certified in Form 1.
November 9, 2020
Joan Demarco
Court Reporter/Certified Transcriptionist