COURT FILE NO.: CR-20-00330-00
DATE: 09 15 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
RANDALL METCALF
J. Mitschele and A. Choat, for the Crown
I. McCuaig, for the accused
HEARD: August 4, 2022
RULING: RE DIRECTED VERDICT
DENNISON J.
Introduction
[1] At the end of the Crown’s case the defence brought an application for a directed verdict on the basis that the Crown had not introduced any evidence upon which a reasonable jury properly instructed could find two of the essential elements of the offence of importing. In particular:
There is no evidence upon which a reasonable jury properly instructed could find that the cocaine was imported into Canada because Mr. Metcalf did not cause his suitcase to clear customs.
There is no evidence upon which a reasonable jury properly instructed could find that Mr. Metcalf intended to import the cocaine into Canada because he did not intend to clear customs but to transit through the airport.
[2] I provided brief oral reasons dismissing the application with further written reasons to follow. These are my further written reasons.
Review of the Evidence
[3] Mr. Metcalf had a plane ticket to travel from Bogota, Columbia to Toronto, and then from Toronto to London, Heathrow. He had two boarding passes. One for the flight from Bogota to Toronto and another boarding pass for the flight from Toronto to London. He had to switch planes in Toronto. There is also evidence that he checked his suitcase in Bogota on the flight bound for Toronto.
[4] When Mr. Metcalf landed at Pearson International Airport, he got off the plane and went to the International-to-International area of the airport to go to the gate to board his plane to London, Heathrow.
[5] Canadian Border Services Agency Officer (BSO) Caille testified there was a “lookout” for Mr. Metcalf. A colleague identified Mr. Metcalf in the International-to-International section of the airport. After the colleague identified Mr. Metcalf, she walked him to the primary inspection area. When they arrived at the primary inspection area, Mr. Metcalf asked how he should deal with the four bottles of wine in his suitcase on his custom declaration card. She told Mr. Metcalf to declare the four bottles because he was over the exemption permitted. Mr. Metcalf then proceeded through the primary inspection area.
[6] BSO Birmingham testified that she first observed Mr. Metcalf in the primary inspection area. His name had been given to the team at the International-to-International Area. When she saw Mr. Metcalf, she directed him to obtain his luggage from the baggage claim area and then to proceed to the secondary inspection area.
[7] Mr. Metcalf waited a long time in the baggage claim area for his suitcase. BSO Birmingham explained that the suitcase had to be recalled. She explained that the CBSA made a special request to Air Canada, and they had to go onto the plane to identify the suitcase and take it off the plane. Eventually, a representative from Air Canada brought the suitcase to the secondary inspection area.
[8] Mr. Metcalf was instructed to attend in the secondary inspection area to have his suitcase inspected in his presence. He was asked if this was his suitcase, if he packed it, and if he was aware of its contents. He said he did not pack the four bottles of wine, but a man put them in his suitcase, and he hoped that there was nothing in them. Hidden inside the four bottles was approximately two kilograms of cocaine.
[9] BSO Birmingham explained that when a person arrives at Pearson International Airport, they generally walk down a long hallway to the primary inspection area and that they then pass through the secondary inspection area where a traveler may or may not be searched.
[10] She agreed that this was not the path that an international traveler would necessarily take. They could go through the International-to-International program. She explained that there is an agreement between the Canada Border Services Agency (“CBSA”) and airlines that, for specific flights, the traveler and their baggage may transit through Canada without being examined by the CBSA. This program is designed to help facilitate international travel when the final destination is not Canada.
[11] BSO Birmingham agreed that in this program, the passenger’s luggage is taken off one plane and put onto another plane without the passenger picking up the luggage. The passengers may clear through an automated system as opposed to proceeding to the primary inspection area. She also explained that the agreement does not mean that the traveler or their luggage are exempt from examination by the CBSA.
[12] BSO Caille also explained that the CBSA may question any traveler and search a traveler or their baggage even if they are transiting through Canada.
Governing Principles on a Directed Verdict
[13] The test on a motion for a directed verdict is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”. The same test governs committal decisions at both preliminary inquiries and extradition hearings: United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at paras. 37, 44-46.
[14] The sufficiency of the evidence must be assessed with reference to the burden on the Crown to prove each element of the offence beyond a reasonable doubt. This means that “the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury could rationally conclude the accused is guilty beyond a reasonable doubt”: R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at para. 53: R v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, at p. 701; See also R. v. Turner, 2012 ONCA 570 at para. 16.
[15] In assessing the adequacy of the evidence, the judge is not to assess the credibility or reliability of the evidence. Those types of qualitative assessments of the evidence are for the jury to determine: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 15; Arcuri at paras. 23, 30 and 33; M.M., at para. 47.
[16] In cases “where the Crown adduces direct evidence on all the essential elements of the offence, the case must proceed… regardless of the existence of defense evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true”: Arcuri, at para. 29; Sazant, at para. 16.
[17] Where an essential element of the offence is proven by circumstantial evidence, the judge must engage in a limited weighing of the circumstantial evidence, including exculpatory evidence: Charemski, at p. 699; Arcuri, at paras. 22-23, 29 and 34.
[18] If the circumstantial evidence is capable of supporting competing inferences of pointing toward guilt and innocence, the judge is not to choose between the competing inference. In that case, only the inferences that favour the Crown are to be considered: Sazant, at para. 18: R. v. Jackson, 2016 ONCA 736, at para. 7;
[19] The inferences to be drawn from the primary facts must be based on logic and informed by human experience. The judge, like the jury, must not bridge gaps in the evidence through speculation or conjecture: United States of America v. Huynh, 2005 ONCA 305, at para. 7; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37; Jackson, at paras. 7-14.
Position of the parties
The Accused’s position
[20] The accused’s counsel submits that based on the Court of Appeal’s decision in R. v. Foster, 2018 ONCA 53, the Crown is required to prove beyond a reasonable doubt that he caused his suitcase to clear customs.
[21] The position of the accused is that he did not complete the physical act of importing because he did not cause the drugs to clear customs. He argues that he did not cause the drugs to be brought into Canada. It was only the actions of the CBSA that caused his suitcase to be removed from the plane and to be inspected.
[22] The accused’s counsel further submits pursuant to Foster, that the Crown must prove that Mr. Metcalf intended that the suitcase and drugs clear customs. He submits that there is no evidence that he had any intention for the suitcase to clear customs. There is no evidence that he intended for his bag to leave the custom protected area, nor did he have possession of the bag at any time. Mr. Metcalf took no steps to have his bag clear customs.
[23] It is the position of the accused that the definition of importing in Foster is consistent with the purpose of the offence which is to prevent drugs from entering Canada to be sold and used by Canadians. It is the position of Mr. Metcalf that while he may be guilty of another offence such as trafficking, given the Court of Appeal’s definition of importing in Foster, he cannot be found guilty of this offence.
The Crown’s position
[24] The Crown submits that Mr. Metcalf’s interpretation of “bringing into Canada” creates absurd results. It would mean that an individual who is found with drugs prior to clearing customs is not guilty of importing. Similarly, an accused person who drove across an unmanned border would not be guilty of importing.
[25] The Crown submits that in Foster, the Court of Appeal determined when the offence of importing is factually completed when travelling through an airport with drugs. It is the position of the Crown that importing commences once the drugs enter the jurisdiction of Canada and end, in this case, when the drugs were discovered at the secondary inspection area.
[26] The Crown submits that there is evidence that a jury properly instructed could find beyond a reasonable doubt that Mr. Metcalf caused his suitcase and drugs to enter Canada. He had a plane ticket and knew that he was switching planes in Toronto. It is reasonable to infer he knew his suitcase would be taken off one plane and put on the next plane. A person transiting through Canada is still subject to the law of Canada at Pearson International Airport. The CBSA has the lawful authority to inspect any traveler and their luggage. The airport is not a crime-free zone. The law does not require that Mr. Metcalf be in physical possession of his suitcase. He must cause it to enter Canada, which he did by checking his suitcase onto the flight bound for Canada. It is the position of the Crown that had Mr. Metcalf transited through Canada and left, the court would have had jurisdiction to charge him with importing and exporting because he brought drugs into and out of Canada.
[27] It is also the position of the Crown, that the Crown is not required to prove that the accused intended to clear customs or that the accused intended to have the drugs remain in Canada. The intention that must be proven is that the person intended to bring the drugs into Canadian territory.
Analysis
Issue #1: Is there evidence upon which a reasonable jury properly instructed could find that Mr. Metcalf brought cocaine into Canada?
[28] In answering this question, it is first necessary determine the actus reus of the offence of importing.
[29] I am satisfied that in this case the actus reus of the offence of importing commenced once the drugs crossed the border into Canada, and the offence was completed once the drugs were discovered at the secondary inspection. It is necessary to review the jurisprudence regarding the actus reus of the offence of importing to understand why I have come to this conclusion.
[30] Section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 creates the offence of importing into Canada a controlled substance as defined by Schedules I-VI of the Act.
[31] The actus reus or physical element of the offence of importing is the bringing a controlled substance into Canada. Unfortunately, importing is not defined in the Controlled Drugs and Substances Act, the Interpretation Act, or any other related statutes. The courts have therefore had to grapple with what importing means.
[32] In R v. Bell, 1983 166 (SCC), [1983] 2 S.C.R. 471, the Supreme Court of Canada considered the meaning of the word “import”. That case involved a controlled delivery of drugs from Jamacia to Toronto to Mirabel. The issue in that case was when the offence of importing was completed. The appellant argued that the offence was completed when the drugs entered Canada in Toronto. The respondent argued that the offence was complete when the drugs reached their intended final destination in Canada. A review of this decision assists in demonstrating that the offence commences when the drugs cross the border into Canada.
[33] The majority of the Supreme Court of Canada held that the ordinary meaning of importing means “to bring into the country or cause to be brought into the country”.
[34] The majority held that it was not necessary to prove that the accused physically carried the goods into the country or that the accused be present at the point of entry.
[35] In explaining what importing meant, the majority held that importing “may be committed anywhere in Canada and one offence may occur in whole or in part at more than one location in Canada”: at para. 34. The court provided an example of a drug importer who may, from one part of Canada make all the arrangements to import the drugs and do all the acts necessary to bring about the importation of the drugs at another location. In this example, the accused committed the offence of importing at two different locations. The majority held where the drugs entered the country, or the province where the arrangements were made, would both have jurisdiction to prosecute the offence.
[36] The majority also made it clear that importation is not a continuing offence. However, it is important to understand how the majority defined a continuing offence. A continuing offence is:
an offence where the conjunction of the actus reus and the mens rea, which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements for the commission of the offence continues and the accused remains in what might be described as a state of criminality where the offence continues: at para. 29.
[37] The fact that importing is not a continuing offence does not mean that the offence does not occur over a period of time. In fact, the majority explicitly rejected the argument that the actus reus occurred at a precise moment of time, i.e., the moment the drugs crossed the border into Canada. The majority recognized that the offence could occur at different times and different locations.
[38] The concurring opinion of Dickson J. is also helpful in demonstrating when the offence commences. He also found that the ordinary meaning of the word importing was to bring in goods from a foreign country. He explained at para. 18 that:
The elements of an offence of importing are present as soon as the goods cross the border, but the offence is not over and done with until the goods have reached their intended final destination within Canada. Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between.
[39] The Supreme Court ultimately determined that it was open for the Crown to charge importing in Toronto, Mirabel, or at St. Hubert.
[40] In Bell, the Supreme Court did not define the “endpoint or temporal limit of importing”. As a result, there has been much litigation over what the endpoint is for the physical element of importing.
[41] I will review two cases that are relevant to this analysis.
[R v. Foster, 2018 ONCA 53](https://www.minicounsel.ca/onca/2018/53)
[42] Ms. Foster flew from Jamacia to Toronto and had 1.2 kilograms of cocaine hidden in her bra. At trial, she advanced the defense of duress. She brought a motion for a directed verdict. She argued that she did not have a safe avenue of escape once the plane landed in Canada because the offence was complete when the drugs crossed the border.
[43] The Court of Appeal reviewed Bell as well as other jurisprudence including R v. Valentini (1999), 1999 1885 (ON CA), 132 C.C.C. (3d) 262, which considered the defence of duress. In Valentini, Justice Rosenberg held that the appellants could have sought the assistance of the authorities immediately upon entering the airport before they took physical possession of the drugs. He held that the offence was not complete to that point. He also held that the fact that neither appellant sought the assistance of police or customs officials after taking possession of their bags containing drugs was compelling evidence that a reason for completing the importation was not the lack of a safe avenue of escape. The Court of Appeal in Foster adopted this reasoning.
[44] In Foster, the Court of Appeal noted that the starting point and ending point for the actus reus of an offence is important because at some point the actus reus and the mens rea must be conjoined.
[45] Ultimately, the Court of Appeal held that the offence of importing was complete in law when the drugs entered Canada, but not factually complete until the contraband and its carrier cleared customs and the drugs became available to the ultimate recipient: at paras. 106 & 108. Because the offence was not factually complete, the appellant could have sought a safe avenue of escape after arriving at the airport and prior to clearing customs.
[R v. Okojie, 2021 ONCA 773](https://www.minicounsel.ca/onca/2021/773)
[46] Okojie was heard by a panel of five justices of the Court of Appeal because of the varying jurisprudence on the meaning of importing. In this case, the United States customs seized a FedEx package that contained heroin. They turned the package over to the CBSA who turned the package over to the RCMP. An RCMP officer posed as a FedEx delivery person and delivered the package to the accused. The principal issue in this appeal was when the offence of importing was complete.
[47] Watt J. held that Bell did not resolve the issue of when drugs “enter into the country”. However, Bell made it clear that the offence may be committed anywhere in Canada and, in all or in part, at more than one location. Watt J. held that the end point of importation “occurs when the contraband from abroad enters Canada and is no longer under the control of the appropriate authorities”: Okojie, at para. 104.
[48] Watt J.A. explained that the decision in Foster was consistent with the reasoning in Bell. As noted above, in Foster, the Court of Appeal found that the physical element of the offence ended when the appellant cleared customs. Once the appellant cleared customs, the relevant authorities were no longer in control of the drugs and the offence was complete.
[49] Watt J.A. also explained that in some cases, the drugs may be physically in Canada but never in control of the authorities because of the way the drugs were brought into Canada. In those cases, the offence of importing is complete when the drugs are physically in Canada.
[50] What is clear from Foster and Okojie is that where a person flies into Canada with drugs on their person or in their luggage, the actus reus of importing is legally completed once the drugs enter Canada. The actus reus is factually complete once the drugs clear customs. In this case, Mr. Metcalf legally committed the offence of importing once the drugs crossed the border into Canada. The offence was factually completed once the drugs were discovered at the secondary inspection area.
[51] I do not read Foster or Okojie as stating that the offence of importing cannot be completed earlier depending on the facts of the case. Take, for example, a situation where Customs officials met a person at the gate of an airplane to arrest them and during the arrest, the authorities discover drugs. There is no dispute that Customs officers have the authority to question and search individuals upon their arrival pursuant to s. 98 and 99 of the Customs Act R.S.C., 1985, c. 1 (2nd Supp.). It would defy common sense to find that the person did not physically import drugs into Canada because they did not attend at the primary or secondary inspection area. This example demonstrates the offence commences when the drugs cross the border into Canada and ends depending on the circumstances.
[52] I do not accept Mr. Metcalf’s argument that he did not commit the physical act of bringing, or causing his suitcase and drugs to be brought, into Canada because it was the CBSA officials that had his suitcase taken off the plane and inspected when he was only transiting through Canada. As explained at para. 30 in Bell, the ordinary meaning of the word import means “simply to bring into the country or to cause to be brought into the country.” A person does not have to physically carry the drugs into Canada but must cause them to be brought into Canada. Pearson International Airport is in Canada. When a person checks their luggage on a plane that is to land in Canada, they have caused their suitcase to be brought into Canada and to be subject to inspecting by Canadian authorities.
[53] As explained by BSO Birmingham, the CBSA has the authority to inspect all travelers and their luggage upon landing at Pearson International Airport, even if they are just transiting through Canada. The agreement to allow passengers and their luggage not to pass through customs is between the airlines and CBSA, not the CBSA and the passengers. As such, when the flight lands in Canada the CBSA has the authority to search any person and any luggage. A person who lands at Pearson International Airport does not have a right to skip or avoid going through customs. As such, whether Mr. Metcalf brought his suitcase to customs or whether the airline personnel brought the bag to customs is irrelevant in determining if he caused the drugs to enter Canada: see also R. v. Oluwa, 1996 8347 (BC CA), [1996] 107 C.C.C. (3d) 236 (B.C.C.A.), at paras 27-29.
[54] I am satisfied that a properly instructed jury could find that Mr. Metcalf committed the physical act of importing cocaine into Canada by causing his suitcase to enter Canada and be subject to a customs inspection. Mr. Metcalf had a ticket to travel from Bogota to Toronto to London. He checked one suitcase onto the flight from Bogota to Toronto. There were two tickets from which one may infer that he knew he had to change planes in Toronto, and an inference could be drawn that his suitcase also had to be taken off the plane in Toronto and loaded onto the next plane to travel to London.
[55] There is evidence that upon landing, CBSA officials identified Mr. Metcalf and those officials exercised their authority to search Mr. Metcalf and his suitcase. He was taken to primary inspection and then secondary inspection at which point the cocaine was discovered.
[56] Based on this evidence, a reasonable jury properly instructed could find that Mr. Metcalf caused the drugs to be brought into Canada.
Issue #2: Could a reasonable jury properly instructed find that Mr. Metcalf intended to bring the cocaine into Canada?
[57] In answering this question, the court must also determine what the mens rea requirement is for the offence of importing.
[58] The mens rea, or fault requirement, for importing requires that the accused knew the substance was a controlled substance and intended to bring the controlled substance into Canada.
[59] As explained in Okojie, the physical element (actus reus) must be contemporaneous or coincident with the fault element, but it is not always essential that they be completely concurrent: at para. 50.
[60] I reject the accused’s submission that Foster requires the Crown to prove beyond a reasonable doubt that Mr. Metcalf intended for his suitcase to clear customs as an element of the offence. I find that the Crown is required to prove beyond a reasonable doubt that the accused knew he had drugs and he intended to bring the drugs into Canadian territory. I have come to this conclusion for several reasons.
[61] First, the Court of Appeal in Foster held that actus reus of importing is legally complete once the drugs enter Canadian territory but is not factually concluded until the drugs clear customs and are available for the intended recipient. The Court in Foster and Okojie did not deal with the mens rea of importing. The Court did not state that the Crown had to prove the appellant had an intention to have the drugs clear customs.
[62] Second, a plain reading of the word import means to bring into Canadian territory. The graveman of the offence is bringing the drugs into Canadian territory, not whether the drugs clear customs. In many cases, the accused person does not seek to have the drugs clear customs. For example, where a person drives or boats across an unmanned border. There cannot be different elements for the offence of importing depending on whether a person arrives at a secure border or sneaks across the border: see R. v. Clarke, 2019 ONCJ 221, at para. 27.
[63] Third, Justice Watt’s jury instructions for the intention the Crown must prove, also suggests that the intention to be proven by the Crown is that the accused intended to bring the drugs into the country. It reads:
This question has to do with (NOA)’s state of mind, what s/he meant to do when s/he imported the (specify), a controlled substance.
Crown counsel must prove beyond a reasonable doubt that (NOA) meant to import (specify), in other words meant to bring it into the country, or to cause or get somebody else to bring it in, from outside Canada.
To determine (NOA)’s state of mind, what s/he meant to do with the substance, you should consider:
what s/he did or did not do;
how s/he did or did not do it; and
what s/he said or did not say about it.
You should look at (NOA)’s words and conduct, before, at the time, and after s/he imported the substance. All these things, and the circumstances in which they happened, may shed light on what (NOA) intended or did not intend to do when s/he imported (specify). Use your good common sense.
It is reasonable for you to conclude that a person means or intends to do what s/he actually does. This is not a conclusion that you must reach, but it is one that is open to you to draw. If a person imports a substance into Canada, in other words, you may, but do not have to conclude that s/he meant to do so. It is for you to say.
[64] There is nothing in the standard charge that tells the jury, the Crown must prove beyond a reasonable doubt that the accused intended the drugs to pass through customs, to remain in Canada or to be received by a recipient at the ultimate destination.
[65] Fourth, the accused’s counsel provided no jurisprudence that states that an element of the offence requires the Crown to prove the accused intended the drugs to pass through customs or prove an intention that the drugs remain in Canada.
[66] Fifth, two decisions support my finding that the Crown must prove beyond a reasonable doubt that the accused intended to bring the drugs into Canada, not that the accused intended to clear customs or have the drugs remain in Canada.
[67] In Oluwa, the British Columbia Court of Appeal held that the mens rea “is found in the basic intent to knowingly bring narcotics into Canada from abroad”: at para. 73. In that case, the appellant flew from Tokyo to Mexico City with a one and a half hour scheduled stop in Vancouver. The appellant’s ticket did not say that the flight stopped in Vancouver. The passengers exited the plane and waited in the transit departure facility at the airport while the plane was cleaned and refueled. The CBSA officers would often target in transit persons they found to be high risk. While in flight, the appellant was asked to fill out the declaration card. When the plane landed, a CBSA officer stopped the appellant and asked questions about his passport, and he was sent to secondary inspection. The CBSA officer ultimately suspected that the appellant had swallowed drugs which he ultimately admitted.
[68] After a voir dire, the trial judge found that CBSA officers had the authority to stop and search the appellant because he was in transit. The trial judge convicted the accused of importing.
[69] The British Columbia Court of Appeal upheld the trial judge’s finding that CBSA had the authority to search the appellant. The court held persons transiting through Canada had no immunity from customs.
[70] The majority of the Court of Appeal also upheld the appellant’s conviction for importing. The majority held that if the accused actually knew of the stop, it would be sufficient to support a conviction as the mens rea would be satisfied. The majority held that an inference could be drawn that the appellant knew his flight would stop in Canada. While the appellant had not testified, he was an experienced international traveler. It was common for long distant flights to make stops. It was therefore reasonable that the appellant who swallowed drugs would know that the drugs would go where he went.
[71] Donald J.A.’s dissent also supports a finding that the accused must have an intention to bring the drugs into Canadian territory. Donald J.A. held that that the appellant did not have the requisite intention because there was no proof that the appellant knew he would be bringing drugs into Canada because his ticket made no mention of any stop. The facts in Oluwa are different from the present case. Mr. Metcalf’s ticket clearly stated that he would be travelling from Bogota to Toronto and switching planes to travel from Toronto to London.
[72] In R. v. Booker, [1995] O.J. No. 2793 (S.C.), Hill J. also held that the Crown was required to prove that the accused intended to bring the drugs into Canada. In that case, the accused’s flight was diverted from the United States to Canada. The accused testified that she understood that her plane was not leaving that night. She had been instructed to take her carry-on luggage through customs to a hotel and to return the following day for her flight to the United States. She was referred to secondary inspection and the three bottles of rum in her carry-on bag contained 1.1 kilograms of cocaine.
[73] Ms. Booker argued that because her flight was diverted, she did not intend to voluntarily bring the drugs into Canada. She intended to enter the United States, not Canada. Hill J. rejected this argument finding that a person who travels accepts unexpected stops, and therefore the act of entry into a new jurisdiction may be reasonably imputed as a voluntary act of the individual traveler. That issue does not arise in this case because Mr. Metcalf knew his flight would stop in Canada.
[74] Hill J. succinctly stated the mens rea requirement for importation as follows at para. 62:
The mens rea for unlawful importation of a narcotic does not extend to an intention to bring the substance into Canada. The mental element of the crime relates to the knowing possession of the illicit substance in circumstances of an act of bringing the narcotic into Canada. [Emphasis added]
[75] Hill J. held that imputing such an intention was consistent with Canada’s international treaty obligations to defeat narcotic trafficking. He also held that the accused continued control of the drugs even when she knew that she was to enter Canadian airspace. She deliberately maintained control at the Toronto Airport. Rather than abandon control, she attempted to pass through customs and enter the country with her belongings. He held that this was not a case like He Kaw Teh v. The Queen (1985), 157 C.L.R. 523 (H.C. Aust) where Gibbs C.J. held that where an aircraft flies over Australian airspace or lands at an Australia airfield with no intention that they should be unloaded in Australia and they are not in fact unloaded, they will not be imported in the ordinary sense of the term. He also considered that several United States decisions found that a traveler “arrived” in the United States even if it was only for the purpose of refueling: Booker, at para 56.
[76] The accused submits that his situation is different from Booker. He submits that in Booker, the accused made a choice to go through customs to spend the night in Canada before returning the next day for her flight to the United States. In this case, Mr. Metcalf did not choose or intend to pass through customs but intended simply to transit through Canada, and therefore he did not intend to enter Canada, nor did he intend to have his bag enter into Canada. But for the actions of the CBSA, his bag would not have entered Canada.
[77] While this argument has some superficial appeal, it cannot be sustained. The offence of importing is meant to criminalize the bringing of drugs into Canadian territory and to defeat drug trafficking globally. Under Mr. Metcalf’s analysis, if Ms. Booker decided not to clear customs but to sleep in the airport with her carry-on, she would not be guilty of importing. That result does not reflect the graveman of the offence which is the bringing of drugs into Canadian territory and completely disregards Canada’s international treaty obligations.
[78] Contrary to the submissions of the accused, the purpose of criminalizing importation is broader than just stopping the sale of drugs in Canada. Requiring an intention that accused intended for the drugs to pass through customs or to remain in Canada is contrary to Canada’s international treaty obligations and would result in Canadian airports being a crime-free zone for the transiting of illicit drugs. As noted by Hill J. in Booker, to immunize a person from criminal liability because they intended to transit through Canada and the drugs would not remain in Canada is not in accordance with Canada’s international treaty commitment to globally defeat drug trafficking. The purpose of the law is to prevent drugs from entering Canada whether they are intended to remain in Canada or intended to transit through Canada. The Supreme Court of Canada reiterated the importance of international cooperation in combatting transnational crime in United States of America v. Cotroni 1989 106 (SCC), [1989] 1 S.C.R. 1469 at para. 27 as follows:
The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. That has long been the case, but it is increasingly evident today. Modern communications have shrunk the world and made McLuhan’s global village a reality. The only respect paid by the international criminal community to national boundaries is when these can serve as a means to frustrate the efforts of law enforcement and judicial authorities. The trafficking in drugs, with which we are here concerned, is an international enterprise and requires effective tools of international cooperation for its investigation, prosecution and suppression.
See also Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 27; R. v. Salvador, Wannamakere, Campbell and Nunes (1981), 1981 3357 (NS CA), 59 C.C.C. (2d) 521 (N.S.C.A.), at para. 538-540; United Nation Conventions Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (D/CONF. 82/15), Dec. 19, 1988. United States v. Ojebode, 957 F. 2d 1218 (Fifth Cir. 1992) at 1225.
[79] Moreover, no traveler who lands at Pearson International Airport has a choice to skip or avoid clearing customs. As such, it does not make sense to require the Crown to prove the traveler intended to pass through customs. Any person entering Canadian territory is subject to being questioned, searched, and having their luggage searched upon entering Canada. As stated in R. v. Ceballo 2021 ONCA 791 at para. 18, “As Doherty J.A. explained in R. v. Jones (2006), 2006 28086 (ON CA), 81 O.R. (3d) 481 (C.A. at paras. 30-35, given the importance of Canada’s effective control over its borders, no one entering Canada reasonably expects to be left alone by the state.” The fact that there is an agreement between the CBSA and airlines to facilitate travel does entitle a person to avoid customs or Canadian law at Pearson International Airport.
[80] Finally, the accused’s submission that he is not guilty of importing because he did not intend to clear customs but may be guilty of another offence such as trafficking is problematic. If the accused did not commit the offence of importing because the drugs did not “enter Canada”, how could the court have jurisdiction to try the accused for trafficking (i.e., transporting drugs) in Canada? The accused’s submission is an attempt to move away from the plain meaning and purpose of the offence.
[81] The law is meant to be clear so that an ordinary person can understand the criminal liability they face if they engage in certain conduct. The plain reading of the offence states that if you knowingly import (i.e., bring into Canada) drugs, you are guilty of the offence of importing. The plain reading of the offence does not state that the offender must intend that the drugs clear customs or that the accused intends that the drugs must remain in Canada. Requiring the Crown to prove beyond a reasonable doubt that an accused person intended to bring the drugs into Canadian territory is consistent with principles of statutory interpretation and Canada’s international obligations to fight drug trafficking globally.
[82] I am satisfied that a reasonable jury properly instructed could find that Mr. Metcalf intended for the drugs to cross the border into Canada and that his intention coincides with the actus reus of the offence.
[83] Mr. Metcalf checked his bag onto a flight from Bogota to Toronto to London. The ticket showed that he had to change planes in Toronto. This was not a case where there was an unexpected landing in Toronto. It is reasonable to infer that Mr. Metcalf knew his suitcase would have to be taken off the plane in Toronto and put on a different plane to fly to London with him.
[84] In Toronto, Mr. Metcalf deboarded and went to the International-to-International transit gate to board the next flight. He was stopped by CBSA officers. There is evidence that all passengers and their bags are subject to being searched by CBSA officers even if they are permitted to transit through the International-to-International gate.
[85] There is evidence that Mr. Metcalf was directed to secondary inspection and his luggage was brought. He confirmed the bag was his. The bag was searched and found to contain cocaine.
[86] The motion for a directed verdict is dismissed.
Released: September 15, 2022
Justice Dennison
COURT FILE NO.: CR-20-00330-00
DATE: 09 15 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and –
RANDALL METCALF
RULING: RE DIRECTED VERDICT
Dennison J.
Released: September 15, 2022