COURT FILE NO.: CR-19-1509
DATE: 2020 02 03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Paul Michael Davidson
S. Weinstock, for the Crown
E. Ghebrai, for Mr. Davidson
Heard: February 3, 2020
ENDORSEMENT – Crown’s Objection to the Defence Closing Address to the Jury
Conlan J.
I. Introduction
[1] Paul Michael Davidson (“Davidson”) is charged with one count – importing cocaine, at Pearson Airport, in Mississauga, on October 2, 2018, contrary to section 6(1) of the Controlled Drugs and Substances Act.
[2] Today, as part of his closing address to the jury on behalf of the accused, Mr. Ghebrai referred to the existence of “blind couriers” in the context of the importation of narcotics.
[3] The only issue in this case is knowledge on the part of Davidson – did he know about the 1236 grams of cocaine discovered inside one of his suitcases upon his arrival at Pearson International Airport from Jamaica?
[4] The Crown’s case is entirely circumstantial. The jury is asked to infer that Davidson either concealed the cocaine himself inside the suitcase before leaving Jamaica, or he saw someone else do that, or he was told by someone else that it was there.
[5] After Mr. Ghebrai’s closing address, Mr. Weinstock told the Court, in the jury’s absence, that was concerned about the said reference to “blind couriers”. No formal objection was made at that time. When asked by the Court what, if anything, the Crown wanted done about the matter, Mr. Weinstock took the issue under advisement. A recess was taken.
[6] After the recess, the Crown chose to deliver its closing address to the jury without there having been a resolution of the said issue. That did not seem to be a mistake, as the Crown’s closing could reasonably have been anticipated to provide some further context to the issue. At the conclusion of the Crown’s closing address, the Court again asked Mr. Weinstock what, if anything, was being sought in terms of a remedy to the quasi-objection that had been raised earlier. The Crown replied that it wanted the Court to tell the jury to ignore the reference to “blind couriers” generally as there is no evidence of their existence.
[7] The Court declined to say anything to the jury about the issue. The Court’s final instructions to the jury were then delivered, without any objection afterwards from either side.
[8] I promised some reasons for the said decision. Here they are, succinctly put.
II. Decision
[9] First, the impugned remark by Mr. Ghebrai is really nothing more than a submission to the jury that it is reasonably possible for someone to import an illegal substance into Canada without intentionally doing so. There is nothing objectionable about that submission. It must be true, as otherwise the standard instructions that we give juries about the four essential elements of the offence of importing a controlled substance are all wrong. We would simply stop at proof of importing and proof of a controlled substance (ignoring knowledge and intention) and then direct the jury to return a verdict of guilty.
[10] Second, with respect, the Crown’s position is inconsistent with the decision of the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33. In a circumstantial case such as this one is, inferences consistent with innocence do not have to be based on proven facts. Hence, it is not required that there be proof of the existence of “blind couriers” generally before the jury is entitled to infer that Davidson did not know about the cocaine concealed inside his suitcase.
[11] Third, with respect, the Crown’s reliance on the decision of the Supreme Court of Canada in R. v. Sekhon, 2014 SCC 15, is somewhat misplaced. That decision in no way prohibits a trier of fact from concluding that “blind couriers” exist; in fact the decision stands for the opposite in that the majority of the Court held that it was not necessary for expert opinion to be proffered on that because the issue was not scientific or technical and not beyond the knowledge of the trier.
[12] Now, the Crown’s argument is buttressed by the fact that the majority of the Court in Sekhon, supra also held that whether “blind couriers” exist generally is not relevant to whether the accused specifically had the requisite knowledge and intention, and therefore is not admissible. But, context is everything.
[13] That context includes a recognition that the impugned reference in Mr. Ghebrai’s closing address was not a significant part of his argument on behalf of Davidson. Rather, the vast majority of the defence closing address focussed on whether the Crown had proven beyond a reasonable doubt that Davidson, specifically, knew about the cocaine in his suitcase.
[14] That context also includes a recognition that the jury has been instructed by this Court, in unequivocal language, to not guess or make-up theories without any evidence to support them. The jury has also been told, squarely, that the closing addresses by the lawyers are not evidence.
[15] In addition, that context includes the reality that the agreed statement of facts filed on consent (exhibit 10) already implies the existence of “blind couriers”. Section 12 of that document provides that “[c]ouriers who are hired would typically receive compensation, either cash payment (plus their expenses are covered) or a percentage of the product”. There is nil evidence that Davidson received any of those forms of compensation. That would invite an inference that he was not a hired courier, and presumably that is the same beast as a “blind” one. After all, excuse the blunt language, but what person is stupid enough to knowingly carry concealed narcotics for free?
[16] Finally, that context includes the fact that the Crown, in his closing address, also raised legitimate points without there being a concrete evidentiary foundation for them. For example, at one point Mr. Weinstock submitted to the jury that international drug smuggling involves different roles along the chain, and each person in his or her role does it for financial compensation. There is no evidence, per se, of these “different roles along the chain”, but the said remark was an example of good advocacy – an invitation for the triers to use their common sense.
[17] This Court found no need to “correct” that comment from the Crown, and I similarly found no need to do the like with Mr. Ghebrai’s impugned remark.
[18] For these brief reasons, I concluded that it was unnecessary and unwise to say anything to the jury about Mr. Ghebrai’s reference to the existence of “blind couriers”.
Conlan J.
Released: February 3, 2020
COURT FILE NO.: CR-19-1509
DATE: 2020 02 03
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Paul Michael Davidson
ENDORSEMENT – Crown’s Objection to the defence closing address to the jury
Conlan J.
Released: February 3, 2020