COURT FILE NO.: CR-20-192
DATE: 2021 11 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ostap Melnik for the Crown
- and -
NATHAN DAVID KERTCHER MACMILLAN
Natalie Kolos, for the Defence
HEARD: July 26-29, 2021
JUDGMENT
Petersen J.
OVERVIEW
[1] Mr. MacMillan took an international flight from Bogota, Colombia, to Toronto, arriving on February 5, 2019. Shortly after disembarking the flight at Pearson International Airport in Toronto, he was arrested and charged with importing a Schedule I controlled substance into Canada, contrary to s.6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). He pleaded not guilty to the charge.
[2] Two witnesses testified at his trial, namely, Canada Border Services Agency (“CBSA”) officer Jin-Ho Jung and Royal Canadian Mounted Police (“RCMP”) Constable Brandon Zame. The Crown also adduced expert evidence from RCMP Corporal Daniel Carter by way of an agreed statement of facts. The Defence called no witnesses.
[3] The Crown alleges that Mr. MacMillan imported more than 2 kilograms of cocaine, concealed in liquid in two sealed rum bottles within his luggage. Mr. MacMillan admits that one of the bottles contained 1096 grams of cocaine. However, the Defence argues that the Crown has not established that there was cocaine in the other bottle. Moreover, the Defence submits that the Crown has not established that Mr. MacMillan knew, at the time, that either bottle contained a controlled substance.
[4] Given Mr. MacMillan’s admission that he brought one bottle filled with cocaine into the country, the Crown is not required to prove that the second bottle contained cocaine to obtain a conviction. The Crown is, however, required to prove beyond a reasonable doubt that Mr. MacMillan knew there were illicit drugs in his luggage.
[5] There is no direct evidence of his alleged knowledge of the narcotics. The case is based entirely on circumstantial evidence. The Crown argues that the only reasonable inference to be drawn from the totality of the evidence is that Mr. MacMillan knew he was bringing a controlled substance into the country. One of the key pieces of circumstantial evidence is the value of the cocaine, which is calculated based on weight. It is therefore necessary to determine the quantity of cocaine that was in Mr. MacMillan’s possession before deciding the central issue of his knowledge.
THE AMOUNT OF COCAINE
BSO Jung’s Testimony
[6] Border Services Officer (“BSO”) Jung is the person who first discovered the cocaine. He examined Mr. MacMillan’s luggage in the CBSA’s secondary inspection area at Pearson Airport. He testified that, when he opened the checked suitcase, he found two identical sealed brown-glass bottles labelled as Ron Medellin Anejo rum and a clear-glass bottle labelled as Aguardiente Antioqueno. He needed to refer to his notes to refresh his memory about how the bottles were labelled.
[7] He remembered that the brown-glass bottles were 750 millilitres in size, but it is undisputed that they were actually 2000 millilitres. He thought that the clear-glass bottle was half empty, but photographic evidence shows that it was full and sealed. Although BSO Jung acknowledged the possibility, during his cross-examination, that there may have been a fourth bottle in Mr. MacMillan’s suitcase, that was not his recollection. There is no evidence of the presence of a fourth bottle. I conclude, based on the totality of the evidence, including photographic evidence, that there were only 3 bottles.
[8] BSO Jung testified that he performed an ion scan on the outside neck of one of the Ron Medellin bottles early in his examination of Mr. MacMillan’s belongings. The result was negative. He decided not to ion scan the other bottles at that time. He emptied Mr. MacMillan’s suitcase, x-rayed it, and found nothing unusual.
[9] BSO Jung then examined the contents of Mr. MacMillan’s carry-on backpack. He performed an ion scan on the outside of a coffee bag that returned a positive result for cocaine, so he opened the bag. He found only regular coffee beans inside. He removed a mirror from a toiletry bag and performed another ion scan on the reflective surface, which returned a positive result.
[10] BSO Jung knew that these positive test results proved only that the surfaces of the coffee bag and mirror had been in contact with cocaine at some point, but they gave rise to a suspicion that Mr. MacMillan might be smuggling cocaine. He therefore decided to go back to the contents of the suitcase and perform an ion scan on the neck of the second Ron Medellin bottle. The result of that scan was positive. He examined the bottle, tipped it over, shook it a little bit, and noticed that the contents were thicker than water. He said it looked a little cloudy, like watered-down maple syrup. He opened the bottle, which made a cracking noise when the seal on the plastic cap broke. He noticed a smell like fumes from gasoline. He tested the liquid contents with a NIK swab. The swab confirmed the presence of cocaine, so he arrested Mr. MacMillan for smuggling.
[11] BSO Jung testified that, after the arrest, he performed an ion scan on the clear-glass bottle and obtained a positive result. The fact that he did not perform a NIK swab on the contents of the clear-glass bottle reinforces my conclusion that he is mistaken in his recollection that it was half empty. Had that bottle been open and half empty, he likely would have tested the contents immediately rather than doing an ion scan on the exterior of the bottle.
[12] BSO Jung testified that he screwed the cap back on the Ron Medellin bottle that he had opened. He did not open or examine the other Ron Medellin bottle that had tested negative with an ion scan. He put all the bottles and the NIK swab that he used into sealed CBSA evidence bags and handed them over to Constable Zame, who arrived a short time later. He also gave Constable Zame Mr. MacMillan’s suitcase, backpack, and their contents. The RCMP took custody of Mr. MacMillan and Constable Zame arrested him for importing a controlled substance.
[13] BSO Jung’s credibility was not seriously challenged on cross-examination. He was candid throughout his testimony. I have no reason to doubt the truthfulness of his evidence. Except for some minor frailties in his memory of certain details, I found his evidence to be reliable. I accept his evidence in its entirely, except for the two above-mentioned inaccuracies (i.e., the size of the brown-glass bottles and the amount of liquid in the clear-glass bottle).
[14] The parties agree that the clear-glass bottle did not contain a controlled substance of any kind. The Crown’s contention is that the liquid in the two brown-glass bottles each contained a little more than 1 kilogram of cocaine. The Defence concedes that the bottle opened by BSO Jung (hereafter, the “Opened Bottle”) contained cocaine. The dispute between the parties centres on the content of the second bottle labelled as Ron Medellin (hereafter, the “Disputed Bottle”).
Constable Zame’s Testimony
[15] Constable Zame joined the RCMP on January 14, 2019, just three weeks prior to Mr. MacMillan’s arrest. He was a junior officer with very limited experience at the time. This case was the first investigation in which he was the arresting officer and the first time that he was an exhibits custodian. He testified that the exhibit custodian’s role includes accurately recording how an exhibit is kept, any sample taken from an exhibit, when the sample was taken, and when it was delivered to Health Canada for testing.
[16] Constable Zame testified about his handling of the evidence that was seized by BSO Jung from Mr. MacMillan and turned over to the RCMP. There were significant internal inconsistencies in his testimony. It was apparent that he was struggling to remember the relevant details and had little independent recall of the facts. He was forthright about the gaps in his memory. For these reasons, although I found him to be candid and honest, I found much of his evidence with respect to the sampling of the bottles to be unreliable.
[17] At the outset of his examination in chief, Constable Zame stated that he took samples (in the plural) from only one of the bottles on February 8, 2019. He explained that he put the sample (in the singular) in a secured exhibit bag, wrote where the sample (in the singular) came from on a Health Canada card that he affixed to the bag, and brought the bag with the samples (in the plural) to the Health Canada lab for testing. It was unclear, based on this evidence, whether he obtained and delivered only one or more than one sample to the lab on February 8, 2019. He was, however, unequivocal that only one bottle was sampled that day.
[18] Later during his examination-in-chief, he reiterated that he sampled only one bottle on February 8, 2019 and he specified that it was the Opened Bottle. He said the other Disputed Bottle was placed in a secure RCMP locker. He testified that, apart from himself, only the RCMP full-time exhibit custodian would have had access to that locker.
[19] Constable Zame was asked what happened to the Disputed Bottle that was placed in the locker. He responded that he took samples from it and from the clear-glass bottle. He stated that, once those samples were taken, they were placed in an exhibit bag for Health Canada and were sent out for testing.
[20] Crown counsel then asked Constable Zame when he obtained a sample from the Disputed Bottle. He needed to refer to his notes, which I permitted him to do to refresh his memory. After consulting his notes, he said, “I believe it was on the eighth where I took the samples from all three of the bottles, but I did not send them in.” He stated that, from his notes, “it looks like” he obtained all the samples on February 8, 2019 but dropped off only the sample from the Opened Bottle to Health Canada that day. This evidence directly contradicted his earlier testimony that he sampled only the Opened Bottle on February 8, 2019.
[21] Constable Zame testified that, according to his notes, he personally took the sample from the Opened Bottle to Health Canada on February 8, 2019. He stated that he could not say when the other samples were delivered to Health Canada because he did not write anything in his notes about that. He did not have even a “general idea” of when those samples were delivered to the lab. He admitted that he did not actually remember submitting a sample from the Disputed Bottle to Health Canada. He said he believed that he had done so because he received a Certificate of Analyst from Health Canada pertaining to that sample. He noted that the Certificate would show the date when the sample was received by Health Canada.
[22] I am unable to discern from Constable Zame’s testimony how he came to ascertain that a Certificate of Analyst from Health Canada pertained to a sample from the Disputed Bottle. He testified as follows.
[23] Before going to the Health Canada lab on February 8, 2019, he marked the Opened Bottle as Exhibit 1 and photographed it. He also photographed the same bottle (Exhibit 1) beside a Health Canada card with a printed bar code bearing number L0348460. The card is marked as Exhibit 2 in the photograph. He testified that he needed to take the latter photograph to document that the Health Canada card number L0348460 corresponded to the Opened Bottle. After taking the second photograph, he put the Opened Bottle and the sample from the Opened Bottle into separate sealed exhibit bags. He affixed the bar-coded Health Canada card (Exhibit 2) to the exhibit bag containing the sample. He wrote on the card where the sample came from (Exhibit 1).
[24] Constable Zame then marked the Disputed Bottle as Exhibit 3 and photographed it. In the photo, the Disputed Bottle is depicted as sealed. He also photographed the clear glass bottle, labelled Aguardiente Antioqueno, and marked it as Exhibit 4. The photo depicts that bottle as sealed. These two bottles therefore could not have been sampled prior to him taking the photographs. Constable Zame confirmed that, after he photographed these bottles, he placed them in separate sealed exhibit bags.
[25] In contrast to the Opened Bottle, Constable Zame did not photograph either the clear-glass bottle or the Disputed Bottle with the seal broken. Nor did he photograph either of those bottles with a bar-coded Health Canada card for the samples that he claimed to have taken from them.
[26] After taking all the photographs, he placed the exhibit bag containing the sample that he took from the Opened Bottle into a locked RCMP briefcase and delivered it personally to the Health Canada lab. He then returned to the police station and entered data pertaining to the exhibits into an RCMP database. The only Health Canada card that he entered as an exhibit was Exhibit 2, namely the bar-coded card (L0348460) corresponding to the sample obtained from the Opened Bottle.
Certificates of Analyst
[27] The Crown adduced two Certificates of Analyst from Health Canada. The Certificates are admissible as proof of the statements set out in them, pursuant to s.51(1) of the CDSA.
[28] The first Certificate states that:
a) on February 8, 2019, the Health Canada lab received delivery by hand of a sealed RCMP package marked with Constable Zame’s name and badge number and with identification numbers L0348460 and 2019162082; and
b) on February 13, 2019, the Analyst took possession of the sealed package, opened it, removed and examined a sample and found that the sample contained “cocaine (benzoylmethylecgonine) calculated as the hydrochloride 47% (w/w)”.
[29] The first Certificate is attached to a letter dated February 15, 2019 from Health Canada to Constable Zame. It confirms that the liquid sample was found to contain cocaine and provides the following table summary of the results of the analysis:
| Exhibit number | % Cocaine hydrochloride by weight | Approximate total weight of exhibit contents | Estimated total cocaine in exhibit | Approximate total volume of exhibit contents | Approximate concentration of cocaine |
|---|---|---|---|---|---|
| L0348460 | 47% | 2333 grams | 1096 grams | 2023 mL | 542 mg/mL |
[30] The second Certificate states that:
a) on April 24, 2019, the Health Canada lab received delivery by depository box of a sealed RCMP package marked with Constable Zame’s name and badge number and with identification numbers ON0046271 and 2019162082; and
b) on April 30, 2019, the Analyst took possession of the sealed package, opened it, removed and examined a sample and found that the sample contained “cocaine (benzoylmethylecgonine) calculated as the hydrochloride 46% (w/w)”.
[31] The second Certificate is attached to a letter dated May 8, 2019 from Health Canada to Constable Zame. It confirms that the liquid sample was found to contain cocaine and provides the following table summary of the results of the analysis:
| Exhibit number | % Cocaine hydrochloride by weight | Approximate total weight of exhibit contents | Estimated total cocaine in exhibit | Approximate total volume of exhibit contents | Approximate concentration of cocaine |
|---|---|---|---|---|---|
| ON0046271 | 46% | 2305.82 grams | 1061 grams | 2000 mL | 530 mg/mL |
[32] Constable Zame testified that the numbers 1902490T and ON0046271 were associated with the Disputed Bottle in the Exhibit Report that he prepared. However, he did not explain how those numbers came to be associated with the Disputed Bottle. Notably, he did not say that either of those numbers was from a bar code on a Health Canada card used to identify and trace a sample from the Disputed Bottle.
Parties’ Positions
[33] The Crown argues that, regardless of when the Disputed Bottle was sampled and when the sample was submitted to Health Canada, the Certificates of Analyst, combined with Constable Zame’s testimony, establish beyond a reasonable doubt that the Disputed Bottle contained more than 1 kilogram of cocaine. Defence counsel submits that there is reasonable doubt as to whether the Disputed Bottle contained any cocaine.
Analysis
[34] BSO Jung’s ion scan of the exterior of the Disputed Bottle produced a negative result. He did not notice anything unusual about that bottle’s appearance. He never opened the bottle and did not perform a NIK swab on its contents. He provided no evidence that could support a finding that the Disputed Bottle contained cocaine.
[35] With respect to Constable Zame’s evidence, I have concluded, for the reasons that follow, that he did not obtain a sample from the Disputed Bottle on February 8, 2019. Had he done so, he likely would have photographed it in the same manner as he photographed the Opened Bottle, namely with the seal broken and a bar-coded Health Canada card to show that the sample sent to the lab corresponded to that bottle. There is no Health Canada sample card for Exhibit 3 (the Disputed Bottle) like there is for Exhibit 1 (the Opened bottle).
[36] Moreover, during his cross-examination, Constable Zame confirmed that, in his notes on February 8, 2019, there is a timestamped entry that reads: “Entered evidence room to get the rum bottle to get tested.” Notably, this notation is in the singular and does not refer to more than one bottle getting tested.
[37] Additionally, had Constable Zame obtained samples from all three bottles on February 8, 2021, he likely would have delivered all the samples to the Health Canada lab at the same time. He testified that there was no reason to wait to send some of the samples later. He could not explain why, if he took samples from all three bottles on February 8, 2019, he delivered only one sample to the lab that day and submitted the other samples weeks later on April 24, 2019.
[38] Furthermore, Constable Zame acknowledged during his cross-examination that, even though he was the exhibits custodian, his notes contain no mention of any identification number connecting any sample to Exhibit 3 (i.e, the Disputed Bottle). Indeed, he conceded that there is no notation anywhere in his notes of any sample being taken from Exhibit 3. It is therefore unclear how he arrived at the conclusion, based on his notes, that it “looks like” he took a sample from all three bottles on February 8, 2019.
[39] Finally, he admitted during his cross-examination that, in the absence of any notation in his notebook, he could not be certain about any testing that was done on the Disputed Bottle. He acknowledged that, without a Health Canada card associated to the Disputed Bottle, it was possible that “a mistake or a mix-up could’ve been made” with respect to the Disputed Bottle.
[39] The Crown argues that the Certificates of Analyst eliminate any doubt raised by the inconsistencies and gaps in Constable Zame’s testimony. I disagree.
[40] The second Certificate of Analyst does not, by itself, prove that the Disputed Bottle contained cocaine. It merely proves that a substance was received by Health Canada on April 24, 2019, was analyzed by Health Canada on April 30, 2019, and was found to contain cocaine. The Crown must establish, beyond a reasonable doubt, that the substance analyzed was taken from the Disputed Bottle seized from Mr. MacMillan’s luggage: R. v. Ebner, 1979 CanLII 237 (SCC), [1979] 2 S.C.R. 996, at p. 1006.
[41] Constable Zame’s testimony is the only available direct evidence on this issue. However, he has no independent recollection of sampling the Disputed Bottle or of submitting a sample from that bottle to Health Canada. He made no note of sampling the Disputed Bottle, even though it was his responsibility as the exhibits custodian to do so. He believes that he submitted a sample from the Disputed Bottle to Health Canada only because he received a Certificate of Analyst bearing number ON0046271, which is a number associated with the Disputed Bottle in his Exhibit Report. How that number came to be associated with the Disputed Bottle remains a mystery.
[42] There is no reliable evidence of when, how, or even whether a sample was obtained from the Disputed Bottle. There is no evidence of who submitted the disputed sample to Health Canada on April 24, 2019. The Crown argues that proof of continuity of exhibits is not a requirement to establish the essential elements of the offence. The Crown relies on R. v. Oracheski, 1979 ALTASCAD 140, 48 C.C.C. (2d) 217, at p. 220, in which the Alberta Court of Appeal held, in a case involving narcotics, that the Crown is not required to call every person through whose hands an exhibit passed from when it was seized from the accused until it gets into the hands of the analyst in order to establish that the exhibit is a prohibited substance. I agree that gaps in continuity of an exhibit will not be fatal to the Crown’s case unless they are capable of giving rise to a reasonable doubt about the integrity of the exhibit: R. v. Aviles, 2015 ONSC 4580, at para. 86. The issue in this case, however, is not a gap in the continuity of the evidence.
[43] The issue is whether the Crown has proven the source of the sample that was submitted to Health Canada on April 24, 2019. More specifically, the issue is whether the Crown has shown beyond a reasonable doubt that the substance analyzed by Health Canada on April 30, 2019 was taken from the Disputed Bottle that was seized from Mr. MacMillan’s luggage, rather than from the Opened Bottle that had already been sampled, or from some other unknown source.
[44] When Constable Zame first testified that he did not sample the Disputed Bottle on February 8, 2019, he simultaneously referred to “samples” (in the plural) that he procured that day, suggesting that he may have obtained more than one sample from the Opened Bottle. While it is possible that he simply misspoke, I have no basis for drawing that inference. It is also possible that Constable Zame sampled the Disputed Bottle at a later date, but there is no evidence to support such a finding. Indeed, the evidence suggests otherwise because he would have had to open the sealed evidence bag containing the Disputed Bottle (Exhibit 3) if he had sampled it after February 8, 2019. That would have required him to make changes to the data entries in the Exhibit Report, which he said could not be done using the RCMP software without first obtaining permission by email. There is no evidence that such permission was ever sought by him.
[45] The Crown argues that I should infer from the information contained in the two Certificates of Analyst that the second Certificate cannot relate to a sample obtained from the Opened Bottle and therefore must relate to a sample obtained from the Disputed Bottle. The following comparative chart summarizes the results set out in the correspondence from Health Canada to which the Certificates were appended.
| Type of Analysis | First Certificate Exhibit L0348460 | Second Certificate Exhibit ON0046271 |
|---|---|---|
| % Cocaine hydrochloride by weight | 47% | 46% |
| Approximate total weight of exhibit contents | 2333 grams | 2305.82 grams |
| Estimated total cocaine in exhibit | 1096 grams | 1061 grams |
| Approximate total volume of exhibit contents | 2023 mL | 2000 mL |
| Approximate concentration of cocaine | 542 mg/mL | 530 mg/mL |
[46] The Crown argues that the different results must mean that the samples tested by Health Canada came from different bottles. He submits that the total volume and total weight of the content of the exhibits were different, and the concentration of cocaine in the liquid was also different, so two different bottles must have been sampled.
[47] I agree with Defence counsel that I am unable to arrive at that conclusion without the benefit of testimony from an analyst to explain the information provided in the correspondence from Health Canada. The Crown submits that the approximate total volume and approximate total weight of the exhibits refer to the volume and weight of all the liquid in the rum bottles. I agree that this is a reasonable inference, given that they were 2 litre bottles, but I have no evidence about how those approximations were calculated. The Crown is effectively asking me to assume that an analyst at Health Canada measured the volume and weighed the liquid contents, with the results set out in the correspondence.
[48] The problem with this argument is that Constable Zame testified that the samples from the bottles were delivered to Health Canada and the bottles themselves remained in the RCMP exhibit locker. I therefore cannot reasonably assume that a Health Canada analyst measured the volume and weighed the contents of the bottles. I have no way of knowing what method was used by Health Canada to ascertain the approximate volume and weight of the bottled liquid.
[49] Moreover, the information conveyed by Health Canada is expressed in approximate and estimated amounts. There is no evidence of the margin of error, no way for me to determine how precise or rough the estimates are, and therefore no way for me to know whether it is reasonable to draw the inferences urged by the Crown from the relatively small differences in the results.
[50] I am prepared to infer, from the totality of the evidence, that two different samples were tested by Health Canada on two different dates, but that does not prove, beyond a reasonable doubt, that the second sample came from a different bottle. It certainly does not establish that the second sample came from the Disputed Bottle. Both samples could have come from the same Opened Bottle. The lesser approximate volume and weight listed when the second sample was tested could be due to margins of error in the measurements, or to the fact that the Opened Bottle had previously been sampled in February 2019, resulting in less liquid (volume and weight) when it was tested in April 2019.
[51] I have not overlooked the fact that the second Certificate of Analyst references the delivery of a sample in an RCMP package labelled with two numbers, including ON0046271. As I mentioned earlier, that number is associated with the Disputed Bottle (Exhibit 3) in Constable Zame’s Exhibit Report. However, the matching of these numbers is insufficient to establish that the sample delivered to the lab on April 24, 2019 was derived from the Disputed Bottle because there is no reliable evidence of when (or even if) a sample was taken from the Disputed Bottle. There is no explanation of how or when the identification number on the second Certificate (i.e., ON0046271) came to be associated with the Disputed Bottle. In the absence of a bar-coded Health Canada card for the sample, and without any photographic evidence showing that the Disputed Bottle was even opened for sampling, I am left with reasonable doubt about the source of the sample that was tested by Health Canada on April 30, 2019.
[52] The Crown has therefore not met its onus of proving that the Disputed Bottle contained cocaine.
[53] The parties agree, however, that the Opened Bottle contained 1096 grams of cocaine. That bottle was brought into Canada by Mr. MacMillan inside his checked luggage on a flight from Colombia. The only remaining issue for me to decide is whether the Crown has proven beyond a reasonable doubt that Mr. MacMillan knew that the bottle contained a controlled substance.
ACCUSED’S KNOWLEDGE OF A CONTROLLED SUBSTANCE
Law Regarding Circumstantial Evidence
[54] Before reviewing the evidence, I will briefly summarize the principles applicable to the use of circumstantial evidence to draw inferences of guilt in criminal cases.
[55] As the Supreme Court of Canada articulated in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 27, there is a danger of jumping to unwarranted conclusions in cases where proof of one or more of the elements of the offence depends exclusively or largely on circumstantial evidence. This danger is why juries are given a specific cautionary instruction about too readily drawing inferences of guilt in circumstantial cases. Juries are instructed that an inference of guilt drawn solely or largely from circumstantial evidence must be the only reasonable inference that such evidence permits. This instruction applies to my reasoning as well.
[56] I am mindful that reasonable inferences inconsistent with guilt need not arise from proven facts. Requiring proven facts to support inferences consistent with innocence wrongly shifts the burden of proof onto the accused. The trier of fact must determine the range of reasonable inferences that can be drawn from the totality of the circumstantial evidence. In assessing circumstantial evidence such as, for example, opportunity, motive, or after the fact conduct, the trier of fact must be alert to alternative explanations that logically point toward innocence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, at para. 35.
[57] Reasonable inferences must, however, be distinguished from conjecture. Alternative inferences consistent with the accused’s innocence will not be reasonable if they are based on speculation. To be reasonable, they must be based on logic and human experience applied to the evidence or the absence of evidence. A doubt based on a theory alternative to guilt is not rendered speculative (or unreasonable) by the mere fact that it arises from a lack of evidence: Villaroman, at paras. 36-37.
[58] Gaps in the evidence may result in reasonable inferences other than guilt, but this does not mean that the Crown is required to negative every possible conjecture, no matter how irrational or fanciful, that might be consistent with the innocence of the accused. The Crown must, however, negative plausible theories and reasonable possibilities that are consistent with the accused’s innocence in order to satisfy its burden of proof: Villaroman, at paras. 37.
[59] Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively: R. v. T.(W.), 2016 ONSC 3943, at para. 136; R. v. Bryan, 2017 ONSC 2244, at para. 22. The basic question is “whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 38. In other words, to justify a conviction, “the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative”: Villaroman, at para. 41.
Analysis of Evidence
[60] The circumstantial evidence in this case can be grouped into the following six categories:
a) statements made by Mr. MacMillan to BSO Jung,
b) BSO Jung’s observations of Mr. MacMillan’s demeanour,
c) BSO Jung’s observations about the contents of Mr. MacMillan’s luggage,
d) BSO Jung’s observations about the appearance of the rum bottle that contained cocaine,
e) Corporal Carter’s evidence regarding the value of the cocaine, and
f) statements made by Mr. MacMillan on his Customs Declaration Card.
Mr. MacMillan’s Statements to BSO Jung
[61] BSO Jung asked Mr. MacMillan some basic questions when he approached the secondary inspection counter, namely where he worked, where he was traveling from, and the purpose of his trip. Mr. MacMillan said he worked as a personal trainer at a gym and was a member of the Canadian Armed Forces. He said he was coming back from Colombia and had taken the trip to unwind and de-stress after breaking up with his girlfriend.
[62] When BSO Jung opened Mr. MacMillan’s suitcase, he quickly located the three bottles that appeared to be alcohol. As noted above, he proceeded to ion scan the outer neck of one of the brown-glass bottles. Mr. MacMillan did not say anything about the bottles throughout this process.
[63] Mr. MacMillan did not express surprise upon BSO Jung’s discovery of the alcohol-labelled bottles in his suitcase, so there is no evidence of statements upon which I could infer that he was unaware of the bottles. This suggests that he knew the bottles were in his suitcase, but it does not support an inference that he knew one of the bottles contained cocaine. Notably, he did not say anything to disown the bottles or try to distance himself from them, even when BSO Jung selected one of the brown-glass bottles to ion scan.
[64] When BSO Jung’s subsequent ion scan of a mirror in Mr. MacMillan’s toiletries produced a positive result, he asked Mr. MacMillan if he used cocaine while he was in Colombia. Mr. MacMillan answered no. When BSO Jung advised Mr. MacMillan of the results of the scan, Mr. MacMillan reacted by telling him to just throw away the mirror.
[65] Mr. MacMillan’s reaction does not assist me in determining the issue of his knowledge. It is just as likely that he would make such a statement (i.e., “just throw it away”) without knowledge as with knowledge of the illicit drugs hidden in his suitcase.
[66] I similarly draw no inferences from Mr. MacMillan’s denial of using cocaine while in Colombia. That statement is not probative of any fact relating to his knowledge of the controlled substance in his luggage.
[67] There is no evidence of any incriminating statements having been made by Mr. MacMillan. BSO Jung recalled that, during his examination of the luggage, they mostly talked about Mr. MacMillan’s career in the military. Mr. MacMillan recounted some of his experiences while serving in Afghanistan. He also talked about his breakup with his girlfriend and about some people who he met in Colombia. BSO Jung described their exchange as “pleasant conversation.” I note that there is no evidence that contradicts the statements made by Mr. MacMillan. There is no evidence that he was lying about any part of what he told BSO Jung.
[68] The statements simply do not assist me on the issue of his knowledge.
Mr. MacMillan’s Demeanour
[69] BSO Jung testified that when he was searching Mr. MacMillan’s name in the CBSA database immediately after Mr. MacMillan first approached his counter, he noticed that Mr. MacMillan was breathing a little hard and pacing back and forth. He said he could hear Mr. MacMillan breathing.
[70] Apart from that observation, BSO Jung said Mr. MacMillan seemed like a normal passenger. He was friendly and cooperative throughout the examination in the CBSA secondary inspection area. He remained cooperative when he was arrested for smuggling.
[71] Mr. MacMillan placed his suitcase on the counter and opened it when BSO Jung asked him to do so. He did not say or do anything to interfere with BSO Jung’s inspection of the contents of his bags. He did not object, protest or say anything when BSO Jung opened the bag of coffee and broke the seal on one of the bottles of Ron Medellin rum. He did not attempt to distract BSO Jung from his task.
[72] BSO Jung recalled that Mr. MacMillan was talkative throughout most of their interaction, but when BSO Jung was testing the contents of the second brown-glass bottle with a NIK swab, Mr. MacMillan suddenly became very still and completely silent. Then Mr. MacMillan start to fiddle around with keys and a wallet on the counter in front of him.
[73] This evidence with respect to Mr. MacMillan’s demeanour does not assist the Crown on the issue of his knowledge. The fact that he was pacing and breathing heavily at the outset of the secondary examination could be explained by the fact that he had just deboarded a long flight and walked a long distance from his gate. It is just as consistent with restlessness and fatigue as it is with nervousness or anxiety about getting caught importing a prohibited substance.
[74] Mr. MacMillan falling silent when BSO Jung performed the NIK swab on the Opened Bottle could be explained by the fact that BSO Jung moved to a different counter to conduct the test. The two men were then separated by a greater distance, which itself could have interrupted the flow of their conversation and rendered Mr. MacMillan silent. Fidgeting with small items is as consistent with boredom as it is with nervousness.
[75] In short, BSO Jung’s observations of Mr. MacMillan’s demeanour are not circumstantial evidence that support an inference of knowledge of the drugs in his possession.
Contents of Mr. MacMillan’s Luggage
[76] BSO Jung testified that when he opened Mr. MacMillan’s suitcase, everything looked like normal vacation paraphernalia – dirty clothes, toiletry items, and some souvenirs. Photographs of the contents of the luggage corroborate the accuracy of BSO Jung’s recollection. Shorts and baseball caps are visible among Mr. MacMillan’s clothes, and Q-tips and packaged condoms are visible in the toiletry kit. The contents of the luggage are consistent with the information provided by Mr. MacMillan about the nature and purpose of his trip. There were no incriminating items found inside his bags.
[77] BSO Jung recalled that the contents of the suitcase were messy. He testified that the liquor bottles were just thrown in with the other items. He noticed one of the brown-glass bottles immediately. It was just lying in the suitcase among the clothes. He said it was the first thing he saw. He remembered that the second brown-glass bottle was wrapped in a plastic grocery bag. He was unsure whether the third clear-glass bottle was wrapped or not. He stated that, in his experience, it is common for passengers to wrap bottles in something in case the glass breaks, to prevent the liquid contents from ruining everything in their luggage.
[78] There is nothing unusual about the manner in which the bottles were packed inside Mr. MacMillan’s luggage. He made no effort to conceal the bottles. The cocaine was already concealed within one of the bottles, so the absence of further concealment efforts is not necessarily indicative of innocence. Nor is it indicative of guilt. The evidence pertaining to the placement of the bottles does not, on its own, assist one way or the other with the issue of Mr. MacMillan’s knowledge. I will, however, return to this topic later when I consider the totality of the circumstantial evidence in this case.
Appearance of the Rum Bottle and Method of Concealment
[79] All three bottles were examined by both BSO Jung and Constable Zame. They were also photographed by Constable Zame.
[80] The label on the bottle containing the cocaine is unremarkable. When discovered in Mr. MacMillan’s luggage, the bottle was commercially sealed, with a perforated plastic tamper-evident cap and unbroken tax stamp seal. The concealment of the cocaine inside the bottle was obviously done with a high degree of sophistication.
[81] BSO Jung testified about his observations of the bottle that contained cocaine. Nothing stood out to him when he first noticed it. He said that without touching it, it looked like a normal bottle of rum. It was only after he picked it up, tipped it over and shook it, that he noticed the contents were cloudy and a little thicker than water. He said it was hard to see the liquid because of the brown colour of the glass. He testified that the odour of gasoline that he smelled emanating from the bottle was only detectable after he broke the seal on the bottle and unscrewed the cap.
[82] Accordingly, there is no evidence that the bottle appeared suspicious. The label had not been altered. The commercial seal was intact. The contents appeared normal unless tipped over and shaken. I therefore cannot infer from the appearance of the bottle that Mr. MacMillan likely knew or ought to have known that it contained something other than rum. He could have wrapped the bottle in a plastic bag and placed it in his luggage without noticing that anything was amiss. The evidence pertaining to the appearance of the bottle therefore does not support an inference of Mr. MacMillan’s knowledge of its illicit contents.
[83] The sophisticated method of concealment is not, however, circumstantial evidence from which I can logically infer that Mr. MacMillan was unaware of the narcotics contained in the bottle. Every importer of a controlled substance takes steps to conceal their unlawful product to avoid detection. Sophisticated concealment methods are no more consistent with innocence than guilt. The liquid cocaine could have been sealed inside the Ron Medellin rum bottle with or without Mr. MacMillan’s knowledge.
[84] In short, the appearance of the bottle and method of concealment of the cocaine within the bottle do not assist me in determining the issue of Mr. MacMillan’s knowledge.
Value of the Cocaine
[85] Defence counsel objected to the admissibility of evidence about the value of the cocaine. She argued that it was irrelevant, citing the decision in R. v. Goodall, 2003 CarswellOnt 6409, at para. 10, where O’Connor J. stated: “I simply do not see how the value of the substance assists proof of knowledge. If the accused is unaware of the presence of the drugs then value is irrelevant whether it is large or small.”
[86] The Goodall case predates several more recent decisions in which the Court of Appeal for Ontario held that it is permissible to infer from the high value of narcotics (or weapons) found in a person’s possession that a third party would not have entrusted them with the drugs (or weapons) unless they had knowledge of the nature of the items in their possession: R. v. Pannu and Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 173, leave to appeal refused, [2015] S.C.C.A. No. 478; R. v. DaCosta, 2017 ONCA 588, at para. 21; and R. v. Thompson, 2020 ONCA 361, at paras. 8-11. This binding jurisprudence led me to the inexorable conclusion that evidence about the value of the drugs in Mr. MacMillan’s possession is relevant to the central issue of his knowledge. Having concluded that the evidence was relevant, I weighed its probative value against its potentially prejudicial effect and ruled that the disputed evidence was admissible.
[87] In an Agreed Statement of Facts, the parties then consented to the admission of the following evidence of Corporal Carter, a qualified expert on cocaine pricing in Columbia and the Greater Toronto Area (“GTA”). According to Corporal Carter, the bulk prices for cocaine in the GTA in 2019 ranged from $80 to $100 per gram (cut), from $1,400 to $1,700 per ounce, and from $48,000.00 to $53,000 per kilogram. These prices are based on averages and fluctuate with supply and demand. The prices of cocaine in Columbia in 2019 ranged from the equivalent of $2,000 to $2,500 CAD per kilogram.
[88] It is agreed that 1096 grams of cocaine were found inside a bottle in Mr. MacMillan’s luggage. The street value of that cocaine in the GTA at that time would depend on whether it was sold in bulk or in smaller quantities, and also on the level of supply and demand for the drug in February of that year. Based on Corporal Carter’s evidence, it could be as little as $48,000 (if sold in bulk) and as much as $109,600 (if cut and sold by the gram).
[89] The Crown argues that the value of the dissolved cocaine found in Mr. MacMillan’s luggage is significant enough to draw a common sense inference that a third party would not have entrusted it to him as a blind courier for the purpose of importation: R. v. Ukwuaba, 2015 ONSC 2953, at para. 101; Da Costa, at para. 21; Bryan, at paras. 24 and 40. The Crown submits that, as a matter of logic and human experience, it would make no sense for a third party to entrust him with the responsibility of importing such a highly valuable and illicit product across borders without knowing the nature of the product in his possession.
[90] I agree that a reasonable inference of knowledge can be drawn from the high value of the cocaine in the GTA. If Mr. MacMillan were a blind courier, unaware of the value of the item in his possession, he might be careless with the bottle and drop it or lose it. He could end up drinking the liquid cocaine, giving the bottle away to someone else, or otherwise disposing of it, all of which would be contrary to the interests of the importer who would surely want to protect their investment, eventually retrieve the bottle, and sell the cocaine for a profit. The value of the cocaine is, therefore, circumstantial evidence upon which a reasonable inference of knowledge can be drawn.
[91] Knowledge is not, however, an inescapable inference to be drawn from Mr. MacMillan’s possession of drugs of significant value. As Davies J. noted in R. v. Khan, 2019 ONSC 2002, at para. 28, “individuals dealing in large quantities of drugs have a clear incentive to take steps to protect their identity, which might include relying on couriers and drivers who do not know the nature of the operation or who else is involved.” I must therefore look at the totality of the evidence in this case to determine whether knowledge or wilful blindness is the only reasonable inference to be drawn from the value of the cocaine.
[92] Defence counsel argues that such an inference should not be drawn because the value of the cocaine in Colombia is such that it is equally reasonable to infer that an importer might entrust a blind courier with the product. The uncontested expert evidence establishes that the cost of purchasing 1.096 kilograms of cocaine in Columbia in 2019 was at most $2,740 CAD. There might be some additional costs involved for an importer who chose to dupe a blind mule into transporting the drugs across the border, such as the costs associated with the concealment of the drugs. But overall, the costs would be minimal. The courier would not need to be paid because they would not be aware of the service they were providing or the risk they were undertaking.
[93] Despite the greater potential value of the drugs if sold on the street in Canada, the Defence argues that it would be logical for an importer in these circumstances to weigh the pros and cons of using a knowledgeable versus an ignorant courier. Such an importer might logically conclude that the risk of losing a nominal investment through an ignorant courier is preferable to the risk of being arrested for importing a controlled substance if the drugs are detected by Customs at the border and the knowledgeable courier divulges information about the importation scheme to law enforcement to mitigate the consequences of their involvement. I agree with this submission.
[94] I therefore conclude that the circumstantial evidence pertaining to the value of the drugs in this case is, by itself, equally probative of guilt or innocence.
Mr. MacMillan’s Customs Declaration Card
[95] When Mr. MacMillan approached the counter in the CBSA secondary inspection area at the airport, he immediately presented his E311 Customs Declaration Card to BSO Jung. On the card, he provided all the requested information (e.g., his name, address, flight number, etc.). He listed the purpose of his trip as “personal”, which is consistent with what he told BSO Jung. He listed his date of departure from Canada as January 29, 2019, which means that he was away in Colombia for only four days. The brevity of his trip is a bit unusual, but is not, in and of itself, evidence upon which an inference can reasonably be drawn that he was travelling for any reason other than to unwind after a break-up with this girlfriend. There is no evidence that Mr. MacMillan provided any false information on the Customs Declaration Card.
[96] In Part C of the E311 card, Mr. MacMillan declared that he had exceeded the personal exemption limit for goods brought into Canada. BSO Jung testified that this declaration can refer to alcohol, tobacco, or other goods, but he understood it to be in respect of the alcohol in Mr. MacMillan’s suitcase. This is a reasonable assumption because Mr. MacMillan declared only $180 in value for the goods he was bringing back with him, so the declared excess was more likely due to the quantity of alcohol than to the value of his purchases in Colombia.
[97] BSO Jung confirmed that, when a person declares that they have exceeded the personal exemption, they are more likely to be stopped by the CBSA in the primary inspection area and referred to the secondary inspection area, because they might have to pay tax or duty on the goods in their luggage. I believe that this is common knowledge among most international air travellers.
[98] The fact that Mr. MacMillan chose to bring three bottles of alcohol home in his luggage, including two large 2 litre bottles of rum, and that he candidly declared that he was exceeding his personal exemption, is circumstantial evidence that is not consistent with an inference of guilt. If he knew about the cocaine and was going to great lengths to conceal it within his luggage, as alleged by the Crown, why would he make a declaration that would increase the risk of his luggage being searched by Customs officers? If he were knowingly importing cocaine into the country, concealed in a bottle labelled as alcohol, why would he take steps to draw the CBSA’s attention to the alcohol bottles in his possession? Why not bring only the one bottle (containing cocaine) back to Canada and honestly declare that the goods imported are under the personal exemption limit? The fact that Mr. MacMillan both exceeded the personal alcohol exemption limit and candidly declared this information upon his arrival at the airport, drawing Customs’ attention to the very item (the rum bottle) in which the cocaine was concealed, is not consistent with him having knowledge of the narcotics in the bottle.
[99] In unlawful importing cases, every method of concealment is intended to survive a cursory inspection by Customs officials. Drug importers and couriers are aware of the risk of luggage being searched, so they take steps to avoid detection of their unlawful product in the event of a search. It stands to reason, however, that they would nevertheless try to avoid being subjected to a search of their belongings.
[100] In this case, the concealment method was sophisticated, but that does not logically lead to an inference that the importer would have been so confident as to invite close inspection of the bottle by the CBSA. On the contrary, it is logical to expect that a drug importer would try to avoid intensive scrutiny not only of the luggage in which the illicit product is being transported, but more specifically of the particular container in which the product is concealed. In this case, Mr. MacMillan did the opposite. He flagged the alcohol bottles with his declaration on his E311 card.
[101] It is, of course, possible that a knowing importer of narcotics might declare exceeding their personal exemption to create a false appearance of candour to the CBSA, hoping to avoid scrutiny of their belongings. However, I cannot reasonably draw an inference that Mr. MacMillan did so in this case. His conduct is at least as consistent with an inference of innocence as it is with an inference of guilt.
Totality of the Evidence and Absence of Evidence
[102] I am unable to conclude that the only reasonable inference to be drawn from any individual piece of circumstantial evidence is that Mr. MacMillan had the requisite knowledge to commit the offence with which he is charged. I must, however, consider the cumulative total of the evidence, as well as the absence of evidence, to determine whether the Crown has proven the accused’s knowledge beyond a reasonable doubt.
[103] There is a notable lack of inculpatory circumstantial evidence in this case. There is no evidence that Mr. MacMillan used cocaine; that he was associated in any way with persons involved in a drug trafficking network in Canada; that he communicated with persons in Colombia prior to his trip; that someone else paid for his flight ticket; that he was in financial distress and might have been motivated to act as a drug courier or importer for profit; that he had a large sum of cash in his possession; that he had a prior travel history to Colombia or to other destinations known to be source countries for cocaine; or that he had a plan to deliver the bottle containing the cocaine to some individual or location in Canada.
[104] In contrast, there is exculpatory evidence that supports a reasonable inference that Mr. MacMillan was unaware of the valuable and illegal substance in his possession. This evidence includes the manner in which he packed the bottle in his suitcase, not taking extra care to avoid it breaking, which could have resulted in the loss of a valuable product, and not concealing it from inspection, apart from placing it in a plastic bag. The exculpatory evidence also includes that he exceeded his personal alcohol exemption and declared this fact on his Customs Declaration Card, thereby increasing the risk that his luggage would be searched at the airport, and drawing specific attention to the alcohol bottles, one of which contained the cocaine.
[105] In my view, guilt is not the only reasonable inference that can be drawn from the totality of the circumstantial evidence in this case. The evidence and the absence of evidence are capable of supporting a reasonable inference that Mr. MacMillan was not aware of the illegal drugs in his possession. It matters not whether I believe he is probably guilty of the offence charged. I am left with reasonable doubt about his guilt, so he must be acquitted.
Petersen J.
Released: November 15, 2021
COURT FILE NO.: CR-20-192
DATE: 2021 11 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
NATHAN DAVID KERTCHER MACMILLAN
JUDGMENT
Petersen J.
Released: November 15, 2021