COURT FILE NO.: CRIMJ(F) 777-17
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Tremblay, for the Crown
- and -
Keisha Cox
Defendant
Tried in Absentia
HEARD: September 16, 17, 20, 21, 2021
REASONS FOR JUDGMENT
Justice André
[1] Following a decision on September 16, 2021, in which I ruled that Ms. Cox had absconded. I tried Ms. Cox in absentia on the charge of importing a controlled substance, to wit: cocaine, into Canada on May 23, 2016. I should note that at the commencement of this trial, Crown counsel advised the court that he had served Ms. Cox a copy of his application to have a trial in absentia and that he had received documents from Ms. Cox in response, regurgitating her position that the court lacked jurisdiction to try her on the importing charge. These documents were marked as a lettered exhibit.
SUMMARY OF THE EVIDENCE
[2] The Crown’s evidence indicated that Ms. Cox left Canada on April 21 2016, bound for Jamaica. She used her Canadian passport, with her name and picture within it, to fly to Jamaica and return to Canada on May 23, 2016. Upon her return, she was investigated by Border Services Officer James LeBlanc in the secondary area at the Pearson Airport. He asked her questions about her two checked luggage and opened the larger of the two. He observed clothing, alcohol, food items and a bottle of honey. He became suspicious of this bottle because the contents appeared to be different from the honey he had observed in the past. He began to walk to a room to test its contents but a colleague advised him to test the food items instead.
[3] As a result, Officer LeBlanc turned his attention to a tin of instant chocolate mix. There was nothing unusual about its appearance. It did not appear to have been tampered with. The officer nevertheless punctured the top of the can with a utility knife. A white powder emerged from the hole. He performed a NIK test on a sample. It returned positive for cocaine. Thereupon he arrested Ms. Cox for smuggling or attempting to smuggle suspected cocaine into Canada. He read Ms. Cox her rights to counsel and then turned her over to his female colleagues. He initially met Ms. Cox at 10:00 p.m. and arrested her at 10:15 p.m.
[4] Officer LeBlanc examined other food products in Ms. Cox’s luggage. He found suspected cocaine in six other food products namely chocolate mix, Grace Salt Fish Fritter, Horlicks Original Malt, two packets of Choco-Lisco Instant, and a container of Caribbean Dream Instant Chocolate. He turned all these items over to RCMP Officer Qasir Choudhary on May 24, 2016 at 12:13 a.m. Officer Leblanc testified that Ms. Cox appeared genuinely surprised when he found the suspected cocaine in the sealed can.
[5] Constable Choudhary confirmed that he received the seized items and exhibits from Officer LeBlanc at 12:14 a.m. on May 24, 2016. He placed the items in suitcase locker 98 in the RCMP cells and handed the keys to Constable Antonia Castrillon at 3:30 p.m. on May 24, 2016.
[6] Constable Castrillon arrested Ms. Cox and processed the exhibits. He took a small sample from each container found by BSO LeBlanc to have suspected cocaine. He placed each sample in an envelope with a special identification number and then sent these samples to Health Canada for testing. He later received six Certificates of Analysis from Health Canada. The identification numbers on each sample sent to Health Canada matched the numbers on each certificate he received from Health Canada.
[7] Constable Castrillon also observed the following:
a) The two baggage tags in the name of Keisha Cox which had been affixed to the two tagged luggage.
b) A boarding pass in the name of Ms. Cox.
c) A receipt for three packets of Nestum products which all proved negative for cocaine.
[8] The officer photographed all the exhibits including the NIK test results which had a blue colour signifying that the items tested by BSO LeBlanc had proved positive for cocaine.
[9] Like BSO LeBlanc, the officer testified that the products with cocaine did not reveal any evidence of tampering and concluded that they had all been professionally packaged. He also testified that Ms. Cox “answered to the name of Keisha Cox” and that the photograph he saw in the passport matched the woman he arrested.
[10] Cst. Rodney McIntyre was qualified as an expert in the valuation of cocaine in the Toronto area in 2016 based on his training, his long experience in drug investigations and undercover operations, the fact that he had been qualified as an expert in many trials in the Superior Court and his understanding of his obligation to be impartial and to assist the court. Asked about the 2016 value of his 1.8 kgs of cocaine, the amount of the drug recovered from Ms. Cox, he provided the following evidence:
GRAM LEVEL
$80 to $110 per gram or $144,000 to $198,000 for 1.8 kgs
OUNCE LEVEL
$1,300 t0 $1,600 per ounce or $83,200 to $102,400 for 1.8 kgs; and
KILOGRAM LEVEL
$42,000 to $60,000 per kilogram or $75,600 to $108,00 for 1.8 kgs
ANALYSIS
[11] The sole issue in this trial is whether or not the Crown has proven beyond a reasonable doubt that Ms. Cox had knowledge of the drugs found in her knowledge.
[12] In my view, there is ample evidence that the Crown has proven the actus reus of the offence beyond a reasonable doubt. This evidence includes:
i) The only passengers in the secondary area of the airport where Officer LeBlanc investigated Ms. Cox were those who had travelled to another country.
ii) The luggage in which the cocaine was found both contained baggage tags with the name Keisha Cox.
iii) Ms. Cox brought the two piece of luggage with her to the secondary area.
iv) The luggage contained food products, six of which were proved to contain cocaine.
v) The identification numbers of the envelopes which Constable Castrillon sent to Health Canada matched that on the Certificates of Analysis, which all confirmed that the samples were in fact cocaine.
vi) Ms. Cox’s travel documents confirmed that she was coming from Jamaica.
[13] For the above reasons, I find that the Crown has proven the actus reus of the offence beyond a reasonable doubt.
KNOWLEDGE
[14] There is no direct evidence that Ms. Cox had knowledge that there were drugs in her luggage. Indeed, BSO LeBlanc testified that she appeared to be surprised after he advised her that he had found cocaine in her luggage. The Crown must therefore rely on circumstantial evidence to prove that Ms. Cox knew that she had imported cocaine into Canada. To prove this essential element beyond a reasonable doubt, the Crown must prove that Ms. Cox’s guilt is the only reasonable inference to be drawn from the evidence that I accept.
[15] For reasons already alluded to, there is no defence evidence in this case. It is unknown how the cocaine ended up in Ms Cox’s luggage. She could possibly have purchased the food items from a store. However, this would amount to speculation given that there is no evidence to support such an inference. Indeed, while there is evidence that Ms. Cox purchased the three packets of Nestum, which did not contain cocaine, from a business establishment, there were no receipts found in her possession which indicated that she had similarly purchased the other items from a business establishment.
[16] The other scenario which could explain the presence of cocaine in Ms. Cox’s luggage is that the cocaine could have been placed in the luggage without Ms. Cox’s knowledge, thereby rendering her a blind courier. The fact that there were no signs that the products had been tempered with, may appear to support an inference that Ms. Cox had no knowledge of the cocaine found in her luggage. However, as noted in R. v. Bryan, 2017 ONSC 2244, 2017 CarswellOnt 5514, at para. 51:
Importers know that their suitcases and contents can be subject to inspection … The mere fact the method of concealment is very good does not necessarily result in a reasonable inference that Ms. Bryan didn’t know the content of the cans was cocaine.
[17] That said, the fact that the products had all been professionally packaged raises the inference that someone went to great lengths to make sure that their contents would be undetected. The value of the cocaine, as described by Cst. McIntyre, raises the clear inference that someone would not entrust such a valuable product to a person who did not know the true contents of the products. It raises the inference that a person who would go to such lengths to disguise the presence of cocaine in the products would not simply entrust them to someone who did not know of their presence in the luggage. In my view, it defies common sense that the person or persons responsible would have inexplicably thrown caution to the wind by placing such a valuable product in the luggage of someone who did not know of their presence. If that was the case, Ms. Cox could have given some of the products away, consume them or simply hold them in a cupboard. There would have been no way for the conspirator or conspirators to have retrieved the product, valued between $75,000 to $198,000, from Ms. Cox. This scenario, in my view, is simply preposterous.
[18] The value of the imported cocaine is very relevant to the issue of knowledge in this case. There is ample precedent for this principle. In R. v. Blondin (1970), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), McFarlane J.A. noted at p. 121 that:
[E]vidence of the retail value of the drug was relevant to the main question that the jury had to decide, namely, whether or not the respondent knew that the substance he imported was a narcotic.
[19] In R. v. Ukwuaba, 2015 ONSC 2953, 2015 CarswellOnt 6842, at para. 132, the court noted that:
Commercial-oriented heroin traffickers, keen to avoid loss through detection, rip-off or otherwise, would be unlikely to trust such internationally-shipped cargo to handlers without knowledge of the illicit nature of the package’s contents.
[20] In my view, the only reasonable inference to be drawn from the evidence in this trial is that Ms. Cox had knowledge of the cocaine in her luggage.
[21] Accordingly, I find her guilty as charged.
André J.
Released: September 22, 2021
COURT FILE NO.: CRIMJ(F) 777-17
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KEISHA COX
REASONS FOR JUDGMENT
André J.
Released: September 22, 2021