COURT FILE NO.: CR-21-937
DATE: 2022 08 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
M. Miller, for the Crown
– and –
Viraphone Savina ACKHARATH and
P. Slansky for Ms. Ackharath
Alea Sabira BAKSH
D. Humphrey for Ms. Baksh
HEARD: June 7,8,13,14,15,17,20, 2022
REASONS FOR JUDGMENT
Woollcombe J.
Introduction
[1] Ms. Ackharath and Ms. Baksh are jointly charged with one count of importing cocaine into Canada.
[2] It is undisputed that on July 29, 2019, the co-accused arrived together at Pearson International Airport on a flight from Port of Spain, Trinidad and Tobago, where they had been for a week. They each had two checked bags. They were referred to the secondary inspection area and their bags were inspected.
[3] Carefully concealed between the plastic lining and outer covering of each of the four suitcases were four packages of cocaine. The total cocaine retrieved was 2,460.4 grams in Ms. Ackharath’s luggage and 2,529.1 grams in Ms. Baksh’s luggage. Based on wholesale pricing at the time, the value of the total amount of cocaine was between $239,000 and $263,000.
[4] Ms. Ackharath and Ms. Baksh both testified. Generally, their evidence was that prior to the trip, a business proposal had been made to Ms. Ackharath by Cory Cosby, who was her cocaine dealer and friend. Ms. Ackharath testified that the proposal was that she would smuggle passports into Trinidad, deliver them to a specific person there, and then return to Canada with suitcases concealing money and jewellery. It was her evidence that she was repeatedly reassured by Cory that there would not be any drugs involved and that she accepted this. She conveyed her confidence that there would not be drugs to her best friend, Ms. Baksh. Ms. Ackharath testified that she did not know that there was cocaine concealed in her luggage.
[5] Ms. Baksh agreed to join Ms. Ackharath in this plan, although her evidence about her understanding of the plan was slightly different. She testified that she believed that they were smuggling money to Trinidad and that they were bringing back “papers”, likely passports. Like Ms. Ackharath, she said she was satisfied that there would be no drugs involved.
[6] Each accused testified that before leaving Canada on July 22, 2019, Cory provided them with a leather, zipped up folder which each believed concealed something. Ms. Ackharath said that she had the only binder. Ms. Baksh said that she had one as well. Each testified that the binder or binders were delivered to a person named Neil in Trinidad, a person to whom Cory had told them to make this delivery.
[7] On the day they were returning to Canada, each testified that they were picked up by Trudy, a woman in Trinidad who had been their driver while they were there and who seemed to be working with Neil. They were taken to her house. There, they re-packed their belongings into two bags they were given by Neil. Each testified that she believed that there was material concealed in the bags, though each said it was undetectable: Ms. Ackharath said that she believed that there was money and jewellery; Ms. Baksh testified that she believed that there were papers, likely passports.
[8] On arrival in Canada, the co-accused were sent to the secondary inspection area of the airport. Ms. Baksh’s first bag was emptied, inspected and x-rayed. The Border Services Officer then punctured what appeared to be an area of concern and a Narcotics Identification Kit test result was presumptively positive for cocaine. Both accused were arrested and, ultimately, the cocaine was located.
[9] The question to be decided is whether the Crown has proven beyond a reasonable doubt that the accused knew that they were importing an illegal drug.
The Relevant Legal Principles
[10] The accused are presumed innocent of the offence charged. It is the Crown that must prove their guilt beyond a reasonable doubt. That high standard is much closer to absolute certainty than it is to probable guilt. To find the accused guilty, I must be “sure” that the Crown has proven each of the elements of importing.
[11] Section 6(1) of the Controlled Drugs and Substances Act (“CDSA”) provides:
Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.
[12] Cocaine is a substance included in Schedule I of the CDSA. Importing means bringing a controlled substance into Canada (or causing it to be brought into Canada) from elsewhere: R. v. Foster, 2018 ONCA 53, at para. 56, leave to appeal refused, [2018] S.C.C.A. No. 127. It is conceded that each accused imported cocaine into Canada from Trinidad and Tobago.
[13] The only issue to be decided is whether the Crown has proven beyond a reasonable doubt the mens rea, or mental element of the offence, for each accused. The mens rea for importing can be proven by establishing either actual knowledge or wilful blindness: R. v. Briscoe, 2010 SCC 13, at para. 21.
[14] When an accused possesses a controlled substance with a significant value, as is the case here, a trier of fact may infer both knowledge of the nature of the substance and knowledge of the substance itself. These inferences “may be available from the objective improbability that such a valuable quantity of drugs would be entrusted to anyone who did not know the nature of the contents or the means of transport”: R. v. Burnett, 2018 ONCA 790, at para. 64; R. v. Bains, 2015 ONCA 677, at para. 157.
[15] Wilful blindness is recognized in Canadian criminal law as a substitute for actual knowledge. It imputes knowledge to an accused where the accused’s “suspicion is aroused to the point where he or she sees the need for further inquiries, but makes a deliberate choice not to make those inquiries:” R. v. Burnett, at para. 142. In other words, as was recently explained by Trotter J.A. in R. v. Olvedi, 2021 ONCA 518, at para. 21, wilful blindness:
…involves the presence of a subjective suspicion about a fact, circumstance, or situation, and a decision not to make inquiries, preferring to remain ignorant of the true state of affairs: see Briscoe, at para. 21; R. v. Pilgrim, 2017 ONCA 309, 347 C.C.C. (3d) 141, at para. 66.
[16] A helpful discussion about wilful blindness in the context of an accused making some inquiries is found in R. v. Lagace, 2003 CanLII 30886 (ON CA), [2003] O.J. No. 4328 (C.A.), at paras. 28-29, where the Court held:
28 … Culpability on the basis of wilful blindness rests on a finding of deliberate ignorance. An accused who suspects that property is stolen but declines to make the inquiries that will confirm that suspicion, preferring instead to remain ignorant is culpable. Where an accused makes some inquiry, the question remains whether that accused harboured real suspicions after that inquiry and refrained from making further inquiries because she preferred to remain ignorant of the truth. Where some inquiry is made, the nature of that inquiry will be an important consideration in determining whether the accused remained suspicious and chose to refrain from further inquiry because she preferred to remain deliberately ignorant of the truth. For example, a finding that an accused took all reasonable steps to determine the truth would be inconsistent with the conclusion that the accused was wilfully blind: R. v. Mara, 1997 CanLII 363 (SCC), [1997] 2 S.C.R. 630 (S.C.C.) at para. 51.
29 I, of course, do not suggest that there is any onus on the accused to demonstrate that all reasonable steps were taken. In any case where the Crown relies on the doctrine of wilful blindness and some inquiry has been made, the trier of fact will have to decide whether the Crown has proved beyond a reasonable doubt that despite that inquiry the accused remained suspicious and refrained from making any further inquiry because she preferred to remain ignorant of the truth...
[17] Each of the co-accused testified and, as I have indicated, denied knowing that there were drugs concealed in their bags. Each also testified that as a result of the questions asked of Cory, and his assurances that there would be no drugs involved, she was satisfied that while she would be smuggling something illicit, it would not be drugs.
[18] In accordance with the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, if I believe the evidence of the accused, I must acquit. Even if I do not believe the testimony of the accused, if it leaves me with a reasonable doubt as to her state of mind, I must acquit. Even if I am not left with a doubt by the evidence of the accused, I may find each of them guilty only if I am satisfied beyond a reasonable doubt of their guilt on the basis of the evidence that I do accept.
Analysis
The Absence of Probative Evidence of Motive
[19] I begin by observing that while the Crown does not need to prove motive, it is submitted that Ms. Ackharath did have a financial motive and that this is relevant to proof of her knowledge that she was importing drugs. Ms. Ackharath’s evidence was that in the spring of 2019 – when she agreed to carry out Cory’s proposal in exchange for $10,000 – she was broke, addicted to drugs, and desperate. However, she said that she was not so desperate that she would import drugs. The Crown suggests that she was, and that she knew she was doing so.
[20] I accept that Ms. Ackharath had a financial motive to accept Cory’s business proposal. I also accept that evidence that a person was under financial pressure at the time she is alleged to have committed an offence for financial reward is relevant: R. v. Burnett, at para. 112. The difficulty is that even if Ms. Ackharath had a financial motive, which I accept she likely did, she readily agreed that she was prepared to illegally smuggle items into the country for Cory for the $10,000 he offered. In these circumstances, the presence of her financial motive does not assist in determining if she knew that what she was importing was drugs, as opposed to money and jewellery.
[21] The Crown does not suggest that Ms. Baksh had a financial motive to import drugs.
[22] In the circumstances of this case, I find the evidence of Ms. Ackharath’s financial circumstances do not assist in determining her state of mind and whether she knew she was importing cocaine.
The Demeanour Evidence in the Airport
[23] There was significant debate and evidence at trial about whether the co-accused were more friendly than is usual with Border Services Office (“BSO”) Campos, and whether this could be taken as evidence supportive of the fact that they knew they were importing drugs.
[24] After carefully reviewing the evidence and submissions, I make nothing of the airport demeanour evidence respecting the accused being friendly. First, “friendliness” is a very subjective assessment. Second, even if either or both accused were friendlier than the travellers with whom BSO Campos normally interacts, it might well be explained by the fact that they were nervous because that they knew they were involved in illegal smuggling, even if they did not believe that they were smuggling drugs. In these circumstances, I find the evidence of no assistance in deciding the critical issues.
Drawing an inference about knowledge from the value of the drugs
[25] The situation is unlike many of those in which an inference can be drawn from the value or quantity of the drugs that no one would have been entrusted to import them had they not been aware that they were doing so: R. v. Burnett; R. v. Bains.
[26] In this case, both of the accused knew that they were smuggling into Canada something that was illegal and valuable to Cory, and that they were being paid to do so. They appreciated the importance of the success of their importation. I see a real difference between what can be inferred from the value of the cocaine in this case and what can be inferred in other cases where the accused claims to have been a blind courier. These accused were not blind couriers. While I accept that the careful packaging and distribution of risk between each of the co-accused reveals some degree of sophistication on the part of Neil or Cory, I am not persuaded that I can infer from this degree of care that the accused must have known that there were drugs in each of their bags. They knew that there was something valuable, but I cannot infer that they must have known that there were drugs.
Troubling Aspects of the Co-Accused’s Evidence
[27] There are aspects of each accused’s evidence that are troubling. I will not review all of the concerns raised by the Crown about their evidence, but will mention those that I find to be the most significant of my credibility findings.
[28] These include:
i. It seems obvious to me that anyone looking objectively at this plan, apparently created by Cory, Ms. Ackharath’s cocaine dealer, was highly unlikely to be the shady smuggling deal created by a trusted friend, as Ms. Ackharath described, and was almost certainly going to be a drug deal. I found both accused exaggerated the extent of what they characterized as a trusting friendship between Cory and Ms. Ackharath, in an attempt to make more plausible their evidence as to why they believed his assurances that they would not be smuggling drugs. Ms. Ackharath repeatedly described Cory as someone she trusted, and as a friend, pointing out that he had dated a friend of hers and that she knew he worked in a sanitation department. Yet there was little else in her evidence to suggest that there was anything much beyond a drug dealer / client relationship that would instill trust. She seemed at pains to embellish the trusting nature of their relationship, and yet I heard little evidence to support this claim. Ms. Baksh’s evidence about the relationship between Cory and Ms. Ackharath came across as very contrived. She described hearing about the friendship from Ms. Ackharath, although she acknowledged never meeting Cory until their departure day. That day, she said that she could see the “respect and love” Cory had for Ms. Ackharath and that she witnessed that he cared for her well-being. Ms. Baksh seemed to say this was evident by the fact that he mentioned Ms. Ackharath’s daughter and told her that there would be future trips. There was nothing said to support how she could tell that there was “respect and love” from Cory to Ms. Ackharath. I find that she deliberately and gratuitously exaggerated the relationship in order to justify her evidence that she trusted Cory.
ii. There are further reasons to have serious doubts about Ms. Baksh’s and Ms. Ackharath’s credibility.
First, and most significantly, Ms. Baksh’s statement to RCMP Officer Johal was replete with self-serving lies, including a fabricated story that they had bought the luggage from someone selling it in a parking lot by the hotel.
Second, Ms. Baksh deliberately attempted to deceive BSO Campos in the secondary inspection area when he asked her if she had packed her bags herself, omitting that she knew that there was something concealed in the bags by Neil.
Third, the evidence about Ms. Ackharath’s understanding of the reason that they were taking passports down and returning with money and jewellery seemed to evolve over the course of her testimony. While she was consistent about her understanding as to what was being transported, over the course of her examination-in-chief and her cross-examination, she never testified that her understanding was that the money was payment for the passports. Then, for the first time in re-examination, in response to what I regarded as leading questions, she made this link in what I find was an attempt to bolster her credibility.
iii. There are also, importantly, some significant inconsistencies between the evidence of Ms. Ackharath and of Ms. Baksh. While details about minor matters are understandable, given the passage of time and frailty of human memory, there are marked discrepancies between the two regarding matters that are material:
The evidence between them of the details of the plan are in conflict. Ms. Ackharath, who made all the plans with Cory, testified that she was told that she would be taking papers and documents to Trinidad and would be bringing back money and jewellery. Both accused testified that they had numerous conversations about the plan in the weeks leading up to its execution. Indeed, Ms. Ackharath testified that she shared with Ms. Baksh all the details that Cory provided her. Yet the evidence of Ms. Baksh was that she believed the plan involved them taking down binders in which there would be money concealed, and that they would be returning to Canada with papers and documents, which she speculated were passports. This is a very different plan from that described by Ms. Ackharath. I find these details are significant and it is inconceivable to me that the accused would have had such different understandings of what the plans were. This causes me to have doubts about the truth of their evidence.
There were significant inconsistencies about the binders that were given to them by Cory to take to Trinidad. Ms. Ackharath was unequivocal that they were only given one binder by Cory to take to Trinidad and that she took it. Ms. Baksh said that she understood that they would both be taking binders to Trinidad and that both did, in fact, do so. Furthermore, Ms. Ackharath said that the first time she saw the binder was when Cory gave it to her in the car on the way to the airport and that she held it so that Ms. Baksh could see it. Ms. Baksh testified that Cory gave a binder to both her and to Ms. Ackharath in his condo. She described opening the binder in the car and said that Ms. Ackharath saw her do so. The difference in their evidence respecting whether there were one or two binders is significant and, again, causes me to have concerns about their candour with the court and whether the inconsistencies indicate that one or both were fabricating their evidence.
There were other inconsistencies about Cory’s business partner, whom both accused claimed to have met on the day that Cory drove them to the airport. Ms. Ackharath testified that he showed up at the underground parking lot before they went to the airport and that he was never upstairs in Cory’s apartment. He sat in the front seat as Cory drove them. Ms. Baksh’s evidence was that they met the business partner in Cory’s apartment – that he arrived after they got there and sat on the couch. She said there was discussion at that time about the fact that they were taking binders, which would be picked up by Neil in Trinidad. Ms. Baksh further testified that the partner drove them to the airport and that Cory was in the passenger seat. While in some respects the details about the business partner and who drove are minor, it seems to me that this was an important meeting at Cory’s condo and that the drive to the airport was an important step in the plan and one which both of them would have remembered clearly. The significant discrepancies create further concerns about their reliability.
There were other inconsistencies between Ms. Ackharath and Ms. Baksh’s testimonies in respect of how the binders were given to Neil in Trinidad. Ms. Ackharath described them going down to the hotel lobby to meet Neil and said he was paranoid about the cameras and he said to give it to him later. She testified that they then got into Trudy’s car and that she gave him the folder in the car. Ms. Baksh described meeting Neil and him being paranoid, but said that they delivered the binders to him outside the hotel near the wall, as opposed to later in the car. Given the importance of the delivery of the binder or binders, it is surprising that the co-accused have such different accounts of the transfer of the binders. Again, the significant differences cause me to have concerns about the veracity of their evidence.
The final significant area of inconsistency between the co-accused arises in their descriptions of the evening they went to Trudy’s on the date of departure, immediately before travelling to the airport. In her examination-in-chief, Ms. Ackharath described entering into a big living room with their luggage and said that the luggage that they were to take back (with the money and jewelry) was there. Under cross-examination, she could not recall if it was there. She said that she and Ms. Baksh checked out the new luggage and thought they seemed fine. Neil was not present as he was taking a nap. She gave no evidence of him being proud of what was concealed in the bags. By contrast, Ms. Baksh testified that when they got to Trudy’s, Neil was sleeping in a bedroom with the door shut and there was no luggage waiting for them. He came out with the luggage an hour later. She described him as being proud of the bags and wanting Ms. Ackharath and her to examine them. Again, this was an incident about which one would expect both accused to have a good memory.
I observe that there were other inconsistencies between the co-accused upon which I place less reliance. For instance, there were differences in their descriptions of what they did on what days, when they left the resort and what they did when they left the resort, and when Trudy’s children were present with them. Most of these are easily explained, in my view, by the fact that they are relatively minor and inconsequential details about which I would expect their memories to have faded. I place no weight on these.
[29] I do not accept the defence position that the inconsistencies suggest that Ms. Baksh, who heard the evidence of Ms. Ackharath and knowingly gave a different version, are a “badge of honesty” or support a conclusion that she was a truthful witness. While I agree that she could have changed her evidence so as to be lock-step with Ms. Ackharath, I do not think her decision not to do so means that she is entirely believable, particularly in view of the fact that she misled both BSO Campos (by omission) and Officer Johal.
[30] With respect to the admitted lies to Officer Johal, the defence’s position is that when Ms. Baksh, feeling lost and betrayed by both Cory and Ms. Ackharath, was told mistakenly that there were 13 kg of cocaine worth over a million dollars, she was at a breaking point and in a state of shock, and so made up a story about where the luggage came from that could never withstand scrutiny. I do not accept this position. In my view, she had no reason whatsoever to fear for her safety at that moment. Nor is there any indication from her videotaped statement that she was in some sort of state of shock or fear. The statement, of course, was at 8:43 p.m., following her 2:05 p.m. arrest. By that time she had had more than 6 hours to think about what had happened. I do not think her lies are so easily explained by her being in shock.
[31] I also do not accept the defence position that the differences between each co-accused’s understanding of the plan as to what was being transported to and from Trinidad can be explained by some mis-communication between them or a misunderstanding by Ms. Baksh. This is a major difference in their versions of events, which does not seem plausible on the basis of their evidence about their discussions. This inconsistency causes me to suspect that they had some difficulty keeping straight the details of a false story rather than that there was a miscommunication or that one of them has a faulty memory about this important detail.
Evidence that Supports the Reliability of the Accused’s Evidence
[32] There are, however, numerous aspects of the evidence of both co-accused that suggest that parts of their testimony are credible and reliable:
i. Most significantly, in my view, is Ms. Baksh’s evidence that on July 19, 2019, three days before they went on the trip to Trinidad, she made the following internet search on Google: “how to [sic] papers look in an x-ray”. She testified that she did this because she wanted to ensure that the papers she brought back to Canada concealed in her luggage, which she understood would be x-rayed, would not be detected. She said that when she did this search, she saw several images of how papers look under x-rays, and that x-rays of luggage and papers looked normal. She said that as a result of this search, she felt reassured that what she was importing in her luggage would not be detected. Ms. Baksh’s evidence about having done this search is confirmed by Exhibit 17, which is an extract from her cell phone that shows the searches she did. Ms. Baksh further testified that she did not do any searches for what cocaine or other drugs look like under x-ray, explaining that she never thought there would be cocaine in the luggage.
ii. Ms. Baksh testified that she discussed these searches with Ms. Ackharath within the next day or so and that it comforted both of them that they would not be detected. Ms. Ackharath confirmed that Ms. Baksh had told her about having googled information about detecting passports or something similar on her phone, and that they had discussed this before they left.
iii. In addition, I find it significant that Ms. Ackharath readily conceded that her first thought when Cory approached her with his business proposal was that it would likely involve drugs. She testified that she had made clear to him repeatedly that she did not want to be involved with importing drugs. While the details of the conversations she had with Cory, during which she says she reassured herself that there were no drugs involved, were not entirely internally consistent, she and Ms. Baksh were emphatic, unwavering, and candid that they were worried about the possibility of drugs and so Ms. Ackharath repeatedly sought out assurances from him that there would not be any. Moreover, Ms. Baksh also described both her and her friend Jovana seeking out and obtaining reassurance from Cory that there would not be any drugs. The co-accused were consistent that they were each satisfied by Cory’s assurances that this was true.
iv. The text messages between Cory and Ms. Ackharath confirm that she had had a number of meetings with him in the days leading up to the trip and that the plans unfolded as she and Ms. Baksh described. These support Ms. Ackharath’s evidence about having sought out these assurances repeatedly.
v. Even if the co-accused were inconsistent about what was being taken to Trinidad and what was being brought back, they were consistent and candid in their acknowledgement that they had agreed to participate in what they knew was an illicit smuggling scheme for which they would each be paid $10,000.
vi. While there were some inconsistencies between the co-accused about a number of aspects of their trip, including meeting with Neil to give him the binders and about the evening at Trudy’s before their departure, much of the rest of their evidence was consistent, including being met at the airport by Trudy, the fact that they met Neil and Trudy after and the fact of the final meeting the night before their departure. Moreover, much of their evidence was confirmed by the content of various text messages.
Conclusions about Knowledge
[33] Having considered the whole of the evidence, I cannot accept as true either accused’s denial of knowing that there were drugs in their luggage. As I have explained, there are too many compelling reasons to question their credibility and the reliability of their evidence. While I do not believe the evidence of either accused, their evidence does cause me to have a reasonable doubt about whether the Crown has proven that they knew that there was cocaine or another drug in their luggage.
[34] That does not end the analysis as the Crown relies on the doctrine of wilful blindness as an alternative route to prove that the accused had the requisite mental state.
Wilful blindness
[35] This is a case in which each accused readily agreed that she had suspicions about what Cory had asked them to do and whether he was having them import drugs. They both testified that they made many inquiries of Cory in order to assuage their concerns. In order to establish wilful blindness, the Crown must demonstrate that after making the inquiries that they did, the accused continued to have strong suspicions and that they refrained from making further inquiries because they preferred to remain ignorant. The question is not whether the accused should have been suspicious, but whether they in fact were suspicious: R. v. Malfara, 2006 CanLII 17318 (ON CA), [2006] O.J. No. 2069 (C.A.), at para. 2. The suspicion must rise to the level of a probability, rather than a possibility. In other words, to be wilfully blind, the accused must have still suspected after their inquiries that there would probably be drugs in their luggage, and refrained from obtaining “final confirmation” so that they could deny having knowledge. Because wilful blindness is replacing knowledge, it makes sense that the Crown should have to prove a high level of subjective suspicion on the part of each accused: R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, at paras. 102-103; R. v. Brown, 2018 ONCA 481, at paras. 56-57; R. v. Blondin, 1971 CanLII 1411 (SCC), [1971] S.C.J. No. 42, affirming 1970 CanLII 1006 (BC CA), [1971] B.C.J. No. 656 (C.A.).
[36] In my view, there was, objectively, every reason for the accused to continue to have strong suspicions that Cory had arranged for them to import drugs. He was a drug dealer. Neither of them had any knowledge of any involvement he had in the jewellery business or in dealing with passports. They were being paid a large amount of money, and having their trips paid for by Cory, in order to transport what they had to know were valuable products that were to be well-concealed in their bags. There were compelling reasons that their suspicions should have been, and were, heightened.
[37] The crux of the issue is whether the inquiries that they made were sufficient to remove the accused’s suspicions that their luggage would probably contain drugs.
[38] The Crown submits that while some inquiries were made, they were intentionally insufficient. I agree with the Crown that Ms. Ackharath never really asked the sorts of questions that one might have expected. She repeatedly asked whether she was bringing back drugs and was told by Cory that she was not. On her own evidence, she did little beyond that. She did not ask why she was taking documents or passports to Trinidad. She did not ask why she was bringing jewellery or money back to Canada. She did not ask to see the documents in the binder that she was given before leaving Canada. Instead, she asked for assurances that there were no drugs.
[39] She said that she did receive such reassurances and some information, which she accepted. For instance, Cory told her that he knew she was a mother and so would not do this to her. This resonated for her. Similarly, Ms. Ackharath testified that in an early July meeting, she had asked Cory how she would be taking the passports and he had told her it would be in a sealed folder. He showed her a similar folder and how they would be concealed.
[40] While I do not think Ms. Ackharath’s approach was objectively reasonable, that is not the test. I do find that from her perspective, leading up to the trip, she was, naively perhaps, persuaded by the assurances she received that she would not be importing drugs.
[41] Ms. Baksh did not seek out any direct contact with Cory as the trip was planned. However, she and Ms. Ackharath had a number of important discussions about the plan. She too was concerned that Ms. Ackharath’s cocaine dealer was setting them up for drugs. She was repeatedly assured by her best friend that this was not the case. She trusted Ms. Ackharath, who made clear to her that she trusted Cory and that he had said he would not put her at risk because he knew she was a mother.
[42] Ms. Baksh’s inquiries did not stop there. Three days before the trip, she did her Google search about whether papers would show up on an x-ray. While this seemed an odd search to conduct, and her evidence as to what it revealed seemed equally odd to me, her evidence about conducting this search and the images that she saw as a result was unchallenged by the Crown. In addition to the search that we know she did do, which suggests she was not concerned about importing drugs, there is significance to the absence of other searches done respecting drugs. There is no evidence that she ever did a search of anything related to importing drugs. The inference I draw is that by June 19, any suspicions that she had previously held that they were importing drugs had very much abated. That she shared this information with Ms. Ackharath also led to any suspicions she had being further reduced.
[43] The Crown submits that both accused had an opportunity to ask further questions on the departure day when they met with Cory and his business partner. I agree that there was an opportunity, but I am not persuaded that the presence of the business partner raised flags that they were importing drugs, nor that it ought to have. In any case, it is clear that the person that they thought needed to be questioned was Cory. Jovana proceeded to do just that. Both Ms. Ackharath and Ms. Baksh said that Cory again said that there would be no drugs.
[44] The final occasion on which the Crown submits that the accused had suspicions and declined to ask questions was when they were taken to Trudy’s home and given the luggage with the concealed drugs. While Ms. Ackharath told Ms. Baksh to inspect the bags, and did so herself, she testified that what she looking to ensure was that whatever was in the luggage was well concealed, which it was. At that point, she said that she had no concerns that there were drugs in the luggage. Similarly, Ms. Baksh said that she was satisfied that what they were taking back was well-concealed and that she asked no questions about what it was because she was not concerned that it was drugs. On the basis of this evidence, it was entirely reasonable for them not to ask to see what had been concealed and to leave it as it was, confident that it was not drugs.
[45] The Crown submits that the accused decided not to ask Trudy or Neil about the contents of the bags and what was concealed because they did not want to know. I accept that objectively, it would have made sense to ask what was in the luggage and to ensure, for a final time, that it was not drugs. But their evidence was that by this point, they had no worries or suspicions that there were drugs. Cory had satisfied them. Asking Neil and Trudy was not, therefore, necessary to allay any suspicions.
[46] At the outset, each accused had suspicions that they were being set up to import drugs. As time went on however, and as Ms. Ackharath continued her discussions with Cory, I find her suspicions were lowered. However she still had some worries, and continued to make some inquiries so as to allay her concerns. She also continued to reassure her friend Ms. Baksh, who was younger than her, looked up to her, and trusted her. Ms. Baksh was not without concerns, as her Google search indicates, but it also suggests that her worries were not about drugs. The conversation at Cory’s apartment on July 22 continued to lower any suspicions they had. By the time they left Canada, they knew they would be doing illegal smuggling, but I cannot conclude that they thought what they were bringing back was probably drugs and that they deliberately failed to ask further questions.
[47] While I think it would have been prudent to ask Trudy and Neil about the packages in their luggage before they came home, I find that by that point, each accused had come to believe that there was a low probability that there would be drugs. Each had made inquiries and had been left believing that there would probably not be drugs. While I think each of them was taking a terrible risk, and that objectively they made terrible decisions, I am not convinced beyond a reasonable doubt that they had a high enough level of suspicion, or that they declined to make further inquiries because they wished to remain ignorant. In these circumstances, the Crown has failed to prove that accused were wilfully blind.
Conclusions
[48] All counsel agreed that the culpability of each accused should be considered separately, but that it was most likely that the verdict would be the same for the two co-accused. I have considered the culpability of each of them separately. I am not persuaded beyond a reasonable doubt that either Ms. Ackharath or Ms. Baksh knew that she was importing drugs into Canada or was wilfully blind to that fact. Accordingly, each is found not guilty of the offence charged.
J.W. Woollcombe J.
Released: August 11, 2022
COURT FILE NO.: CR-21-937
DATE: 2022 08 11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Viraphone Savina ACKHARATH
and
Alea Sabira BAKSH
REASONS FOR JUDGMENT
Woollcombe J.
Released: August 11, 2022