Court File and Parties

COURT FILE NO.: CR-21-1459-0000 DATE: 2023 04 13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING David Quayat and Rachel Ward for the Crown

– and –

COURTNEY DENNIS Michael Little for the defendant

HEARD: January 16-20, 24-25, April 13, 2023

Reasons for Judgment

D.E HARRIS J.

[1] Courtney Dennis said he would pay Sherry Sherratt and a woman by the name of Amanda Marsh (who did not testify at this trial) $10,000 to go to St. Maarten and bring back a significant amount of cash. Ms. Sherratt and Ms. Marsh, after staying for several days, flew back to Canada with the understanding that the cash had been secreted in their luggage by persons unknown. When customs officials searched their bags, false compartments were discovered. Rather than containing cash, cocaine was found, a total of 4 kilograms of it.

[2] The Crown alleges that Mr. Dennis knew all along that it was drugs in the suitcase, not cash. Mr. Dennis took the witness stand and testified that he did not know it was drugs. He was working for his cousin who had assured him that it was cash in the suitcases.

[3] Mr. Dennis is charged with importing cocaine. The main issue is whether he knew there was cocaine in the two women’s suitcases. In addition, when the police attempted to arrest Mr. Dennis several months later, he fled the scene in his vehicle. He is charged with resisting arrest.

I. THE IMPORTING COCAINE ALLEGATION, COUNT 1

SUMMARY OF THE CROWN EVIDENCE

[4] David Deman was a crack cocaine addict and bought a half ball of crack for $100 for his own use on a regular basis from Mr. Dennis. He knew Mr. Dennis as “Ben.” On some occasions, during the drug transactions in Deman’s truck, he brought along his girlfriend, Sherry Sherratt, 55 years of age. At some point in November 2019, Ms. Sherratt was asked if she would travel to St. Maarten and bring some cash back to Canada. Ms. Sherratt agreed and was to be paid $10,000. Mr. Dennis wanted another woman to go as well and so Ms. Sherratt recruited Ms. Marsh, 28 years old, a friend of her daughter’s. There was some inconsistency in the evidence about how much cash it would be but one version was $100,000 for Ms. Sherratt and $50,000 for Ms. Marsh. Mr. Dennis assisted with the preparations for the two women to travel and funded their trip, including paying for their passports and going to the passport office to apply for them. He gave them spending cash and bought them matching suitcases to use on the trip. He gave them cell phones to use on the trip. He bought their plane tickets and paid for their hotel room.

[5] According to Ms. Sherratt, a few days before they were to fly, she got cold feet and expressed this to Mr. Dennis. Mr. Dennis threatened her and said that she might be killed if she did not go. He denied this in his evidence. It is unnecessary to resolve the conflict.

[6] Ms. Sherratt and Ms. Marsh did go on December 14, returning on December 21. It was clearly understood—and this was clear from both the Crown and defence evidence—that Mr. Dennis had told them that he could not go with them to St. Maarten because he had a criminal record. But when they arrived at the airport in St. Maarten, Mr. Dennis was there. He had arrived on December 10, before the women arrived, and left on December 17, before they departed.

[7] Ms. Sherratt and Ms. Marsh were told to get into a taxi with Mr. Dennis. The taxi stopped in a remote area. Another car pulled up and their belongings were taken from their suitcases and transplanted into new suitcases. Mr. Dennis helped them check into the resort and then left. They saw him one other time at a bar down the street from the resort.

[8] Ms. Sherratt examined her suitcase at one point. It felt like cash had been secreted in the false lining. Flying back to Canada on December 21, 2019, Ms. Sherratt did not declare the cash she believed she was carrying which was well above the $10,000 limit on the declaration form. In Toronto Pearson International Airport, her suitcase was X-rayed. The officers found cocaine in both her and Ms. Marsh’s bags and they were both arrested.

[9] Ms. Sherratt immediately gave an interview to the police, explaining that Mr. Dennis had asked her to bring the cash back for him. After testifying against Mr. Dennis at his preliminary hearing, Ms. Sherratt pled guilty to importing, with her counsel specifying that the foundation of the plea was willful blindness of the cocaine. On a joint submission, because of her assistance in the prosecution, Ms. Sherratt received a conditional sentence. It is not necessary to determine what Ms. Sherratt’s true state of knowledge was with respect to the contents of the suitcase.

THE CROWN’S DISCREDITABLE CONDUCT APPLICATION

[10] The Crown seeks to admit evidence that Mr. Dennis is a drug dealer as one piece of evidence to help prove that he knew there was cocaine in the two suitcases. The facts underlying the application are not in contention. There can be no dispute that Mr. Dennis is a drug dealer. Evidence establishing this came from Mr. Deman and Ms. Sherratt’s evidence. Mr. Deman bought crack from Mr. Dennis regularly, including not long before the St. Maarten trip.

[11] Mr. Dennis admitted in his evidence in chief that together with coaching children’s soccer, working on construction, and catering, he also sold crack to Deman and others in this time period. He also admitted that he had a criminal record for drugs, including convictions for possession of crack in 2006 (x2) and 2008 (x2) and convictions for trafficking in 2010 and possession for the purpose of trafficking in 2018.

[12] Drug dealing is discreditable conduct outside the ambit of the indictment. A long history in Anglo-Saxon law considers it presumptively inadmissible because it encourages forbidden bad character reasoning: R. v. Handy, 2002 SCC 56 , para. 55 . The Applicant Crown argues that the evidence is admissible to show motive to import drugs and argues that it is probative of knowledge that it was drugs being imported. That is the main issue on this trial. The defence argues that the evidence is purely bad character evidence and is impermissible general disposition evidence.

Lepage and Morris

[13] The analysis in this case should begin with R. v. Lepage, (1995) 1995 SCC 123 , 95 C.C.C. (3d) 385, [1995] 1 S.C.R. 654. Factual similarities between that case and this one bear on the Crown’s application to admit evidence that the accused is a drug dealer.

[14] In Lepage, the accused was charged with trafficking in LSD. The drug had been found in the house the accused shared with two other roommates. One of the roommates testified that the accused was the major drug dealer in the house. The trial judge, based in part on this evidence, found that the drugs were the accused’s. The Supreme Court of Canada in Lepage upheld the judge’s reasoning, with Justice Sopinka holding for a majority of the Court:

36 In the present case, the testimony of [the roommate] is not merely relevant to the character of the [accused], but is also relevant to possession which is a key issue in the case. In the circumstances of this case, there were three people living in the house and it was clear that the drugs belonged to one of the three. Surely, it is relevant to the issue of possession to have one of the three testify that the drugs were not his and furthermore, indicate that the [accused] is in the business and therefore it is more likely that he was the owner of the drugs.

37 The evidence is not being adduced solely for the purpose of showing that the [accused] is likely to have committed the crime because he is the type of person who would be likely to possess drugs. As I stated above, this would be inadmissible character evidence based on the criminal disposition or propensity of an individual… Rather, the evidence of [the roommate] merely illustrates that someone who is in the business of dealing narcotics has more opportunity and is more likely to be in possession of narcotics. (Emphasis added)

[15] Justice Major with Justice Cory in dissent did not agree, holding:

54…[the roommate] did not testify that he had seen Lepage handle the bag of LSD or have the bag in his possession. He did not testify that he saw Lepage place the bag, under the couch. Nor did he testify that Lepage had admitted possessing the LSD. The only purpose of this evidence in my view was to show the disposition of the accused, or his propensity to traffic in narcotics and associate with dealers. This is an impermissible purpose.

55 As recognized by my colleague, character evidence may be admissible if it is relevant to an issue in the trial, and if its probative value outweighs its prejudicial effect: R. v. B. (F.F.), 1993 SCC 167 , [1993] 1 S.C.R. 697 . In Justice Sopinka’s view, the evidence of [the roommate] was relevant not solely to character, but also to possession, in that someone in the business of dealing narcotics had more opportunity and was more likely to be in possession of narcotics. With respect, this is evidence of propensity to deal in drugs, and nothing more. This is what is precluded by the general exclusion of character evidence. The accused is only forced to stand trial for the transactions forming the subject-matter of the charge for which he is being tried.

[16] Justice Binnie discussed Lepage in his Handy reasons. He said:

87 Cogency increases as the fact situation moves further to the specific end of the spectrum.

89 The difference between the majority and the minority [ in Lepage ], it seems, was that the majority considered the connections or correspondence between the act charged and the prior acts of possession (what McCormick on Evidence (5th ed. 1999), vol. 1, at p. 687, calls “situation-specific behaviour”) sufficiently compelling to draw safely the inference of possession on the facts charged, whereas the minority considered any linkage to be so general as to have no probative value with respect to the particular facts of the offence on the particular date charged.

[17] Justice Binnie commented that the majority believed that the nexus between the evidence of drug dealing was specific and compelling while the minority considered it too general to produce significant probative value.

[18] Justice Sopinka’s language has been criticized for suggesting that the admissible use of the roommate’s evidence was a non-propensity, non-character use. It had been clarified before the time of Lepage in R. v. B. (C.R.), 1990 SCC 142 , [1990] 1 S.C.R. 717 at pp. 731-732 and then definitively several years later in Handy at paras. 59-68 that in fact all character evidence operates based on propensity inferences: see Professor R.J. Deslile, Annotation to Lepage, 1995 SCC 123 , 1995 CarswellOnt 3. In retrospect, Justice Sopinka’s suggestion that the source of admissibility was not propensity may not have been on a solid footing. However, that has not led to doubts in the case law about the correctness of the decision in Lepage.

[19] Somewhat similar to Lepage is R. v. Morris, 1983 SCC 28. The accused was convicted of conspiracy to smuggle heroin after a co-accused he was closely connected to was arrested on his return from Hong Kong and found to be in possession of heroin. The legal question was the admissibility of a newspaper clipping about the heroin trade in Pakistan found in Morris’ apartment. The majority held that the clip was admissible. The minority held that the newspaper article was disposition evidence and nothing more and showed only general propensity to commit the offence. In their view, it should have been held inadmissible.

[20] The cases of Lepage and Morris are two examples of discreditable conduct found to be admissible by the Supreme Court. In my view, there is at least as much value generated by the tendered evidence in the present situation as in those two cases.

[21] The major feature of both similar act and discreditable conduct admissibility is the prohibition on bad character reasoning. The law is clear that evidence which only demonstrates bad disposition or bad character is inadmissible. Bad character is the poison ingredient jeopardizing an accused’s fair trial rights. It casts moral and/or reasoning prejudice. However, if the legitimate probative value of the evidence to an issue other than bad character outweighs the impact of the tendency towards bad character, the evidence will overcome the rule of presumptive inadmissibility. See B.(C.R.) at pp. 731-732; Handy at paras. 59-67, 70-73 ; R. v. L.B. (1997), 1997 ONCA 3187 , 116 C.C.C. (3d) 481 (Ont. C.A.), at 503-504, leave to appeal to S.C.C. refused, (1998), 227 N.R. 281 (note) (S.C.C.) ; R. v. Batte, (2000) 2000 ONCA 5751 (Ont. C.A.) at paras. 102-106 ; McCormick On Evid. § 190.1 (8th ed.) (online).

[22] Justice Doherty put it succinctly in R. v. Dooley, 2009 ONCA 910 at para. 170 , where he wrote:

… [there is a] difference, highlighted in Handy, at paras. 89-91 , between prohibited general propensity reasoning, and situation-specific propensity reasoning, which is justified where the propensity operates in a closely defined and circumscribed context, for example, physical abuse within the family unit of the same child during the same period of time.

THE PROBATIVE VALUE OF MR. DENNIS’ HISTORY OF DRUG DEALING

[23] In the case of similar fact evidence where probative value depends on the similarity between the live issue in the trial and the evidence sought to be admitted, "calling cards", "signatures", "hallmarks" or "fingerprints" are examples of a close relationship and connection which make coincidence, or mistake, extremely unlikely: Handy, para. 91 . These examples do not pertain, however, to discreditable conduct evidence. There are differences in the mechanics of how probative value is generated in the context of discreditable conduct evidence and similar act evidence. One of the main differences is that discreditable conduct evidence creates probative value through means other than similarity: R. v. Johnson, 2010 ONCA 646 at para. 98 . Examples of means of creating probative value from discreditable conduct includes evidence going to motive (R. v. Luciano, 2011 ONCA 89 at paras. 113-117 ; Johnson at paras. 97-99 ) and evidence of a disposition to act violently towards one’s spouse (R. v. F. (D.S.) (1999), 1999 ONCA 3704 ; R. v. Moo, (2009) 2009 ONCA 645 (Ont. C.A.), at paras. 96-99 , leave refused [2010] S.C.C.A. No. 152); McCormick On Evid. § 190, 190.5 (8th ed.) (online citing Federal Rule, 404(b). The catalogue is wide-open, however, significantly more so than with similar fact evidence which is dependant on a high degree of similarity.

[24] The outstanding issue on this trial is whether it has been proven beyond a reasonable doubt that Mr. Dennis knew that what was secreted in the suitcases was cocaine, not cash. The explanation advanced by Mr. Dennis is that his cousin was behind the entire operation and he said it was cash. He trusted his cousin.

[25] But Mr. Dennis was a long-time drug dealer and had been selling drugs to Mr. Deman stretching back for several months. There had been a least a dozen transactions previously with Deman alone. Mr. Dennis’s stock-in-trade was selling drugs. That was his business. As part of his business, he had an ongoing motive to obtain drugs for the purpose of selling to customers: for a discussion of motive evidence see R. v. Malone , [1984] O.J. No. 22 , 11 C.C.C. (3d) 34 (Ont. C.A.) at para. 25 . Paraphrasing Justice Sopinka in Lepage, someone who is in the business of dealing narcotics is more likely to be importing cocaine, a commodity not produced in Canada, for the purpose of supplying his business than he is to be importing substantial amounts of cash.

[26] In my view, the propensity inference involved—from a drug dealing propensity to knowledge that drugs and not cash were in the suitcases—falls on the situation-specific, narrowly circumscribed side of the line. This evidence is integrated into a highly specific context. The propensity described is closely tethered to the surrounding evidence.

[27] Furthermore, there is an important aspect in this case relating to probative value which was absent from Lepage. This stems from Mr. Dennis’ evidence that he believed it was cash in the suitcases, not cocaine. An effort by the Crown to rebut this evidence by the use of discreditable conduct evidence of drug dealing is highly germane to the one live issue upon this trial: knowledge. Justice Binnie in Handy at paras. 73-74 emphasizes the importance of isolating the live issue upon which the discreditable conduct is pertinent. Rebutting the defence put forward generates substantial probative value. To not allow it would be to countenance a fundamental imbalance in the evidence.

WHAT IS THE PREJUDICIAL EFFECT OF THE DRUG DEALING EVIDENCE?

[28] The evidence of prior drug dealing has both general and specific elements. There is, as there always will be with bad character evidence, naturally occurring moral and reasoning prejudice. Moral prejudice is caused by the taint of bad character leading to indifference towards the presumption of innocence: Handy at paras. 31, 129-143 . Reasoning prejudice is the tendency to overvalue the evidence of drug dealing towards the issue of Mr. Dennis’ knowledge and the element of distraction from the real issues at stake: see Handy at paras. 31, 144-147 ; M. Rosenberg, Evidence of Similar Acts and Other Extrinsic Misconduct (National Criminal Law Program, Criminal Evidence, 1994) at pp. 23-24; vol. 1A of Wigmore on Evidence, s. 55.1, pp. 1060-1061); Great Britain Law Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at § 7.2.

[29] Both moral and reasoning prejudice are present in this case and both pose risks to the fair trial rights of Mr. Dennis. Drug dealing convictions may excite strong emotions against an accused person. Reasoning prejudice is amplified when the crime charged is the same as that tendered as the discreditable conduct evidence advanced.

[30] There is an abundance of commentary reflecting on discreditable act evidence in judge alone trials: R. v. Tsigirlash, 2019 ONCA 650 at paras. 38-40 ; R. v. MacCormack, 2009 ONCA 72 , 241 C.C.C. (3d) 516 at paras. 56 , 68-69; R. v. J.W., 2022 ONCA 306 at para. 34 ; R. v. Roks, 2011 ONCA 526 , 274 C.C.C. (3d) 1 (Ont. C.A.) at para. 94 ; R. v. B. (T.), 2009 ONCA 177 , 243 C.C.C. (3d) 158 (Ont. C.A.) at para. 27 . The principles of admissibility are the same whether it is a jury or a judge alone case. A good deal of the damage wrought by bad character evidence arises from the appearance of unfairness which can pervade both judge alone trials as well as jury trials. But the fact is, propensity evidence going to bad character and going to a legitimate issue—here, knowledge of the contents of the suitcases—are to some degree inextricable. In a non-jury case, a judge can demonstrate in his or her reasons the efforts made to rely only on the non-bad character elements of the propensity evidence. A judge can rely explicitly on the legitimate thread of the evidence, leaving the bad character element to the side.

[31] Moral prejudice can be reduced by compartmentalizing the potential bad character evidence and isolating it from the deliberative process. Reasoning prejudice can also be greatly reduced. Furthermore, care can be taken to ensure that the circumstantial inference from prior drug dealing towards a conclusion of knowledge of drugs in the suitcases forms only part of the body of circumstantial evidence and is not overvalued.

[32] In conclusion, the evidence of Mr. Dennis’ drug dealing, particularly to Mr. Deman, is more probative than it is prejudicial. It is admissible on the issue of Mr. Dennis’ knowledge of whether the suitcases contained cash or cocaine.

MR. DENNIS’ EVIDENCE THAT IT WAS CASH IN THE SUITCASES

[33] Mr. Dennis testified and denied knowing that there was cocaine in the suitcases. Although it was conceded that Deman and Sherratt were both Vetrovec witnesses, Mr. Dennis’ account did not differ fundamentally from their evidence. As the defence conceded, most of the primary evidence was not contentious.

[34] Mr. Dennis testified that his cousin asked him to help import money from St. Maarten. It was not clear to him what this money was from, but his cousin is a drug dealer, so he expected the money was likely proceeds of drug dealing. All the money to fund the trip was given to him by his cousin. Because of his criminal record, Mr. Dennis was not planning to go himself. However, that changed when his cousin, at the time the passports were finalized, told him to go down to make sure the women were comfortable. Mr. Dennis admitted not telling the women that he was going to be there as well.

[35] Mr. Dennis testified that the cousin was with him at the airport when Sherratt and Marsh arrived and were put in the taxi. There was mention of the taxi stopping in his evidence, but Mr. Dennis did not see the suitcase switch. Mr. Dennis and the two women stayed at different hotels, both of which had been arranged by the cousin. His cousin told him at a lunch a couple days later that the money had been put in the suitcases already. Mr. Dennis believed it was done when the taxi stopped soon after leaving the airport.

[36] Before the women returned to Canada, Mr. Dennis learned of a security incident in which Ms. Marsh’s passport went missing from her room. There was some suggestion that the suitcases were moved as well, something Ms. Sherratt denied. In any case, this was all hearsay evidence and not admissible for its truth.

[37] In cross-examination, Mr. Dennis testified that the cousin was to pay him $1000 for his efforts. He did not ask the cousin many questions about what was going to happen and why. Throughout, Mr. Dennis steadfastly denied any knowledge that this was a drug importation scheme, maintaining that it was all about cash.

THE EVIDENCE WITH RESPECT TO MR. DENNIS’ COUSIN

[38] Mr. Dennis testified that it was his cousin behind the whole enterprise to import cash. Everything he did was to help his cousin. When it turned out to be cocaine, not money, Mr. Dennis was as shocked as anyone else. He honestly believed, based on everything the cousin had said and done, that it was cash in the suitcases.

[39] The two families had grown up together. The two were like brothers. Mr. Dennis trusted his cousin 100%. However, once the drugs were found by customs, Mr. Dennis testified that their familial bond had vanished and had changed into malice and antagonism.

[40] In examination in-chief, when asked by his counsel, Mr. Dennis refused to reveal the name of his cousin, saying that he feared for his life. He elaborated that he and his family had been threatened several times by associates of his cousin just before trial and in the summer. The Crown cross-examined in the area, but no attempt was made to elicit the name of the cousin. I was not asked, as I could have been, to order Mr. Dennis to divulge the name of the cousin. Nor was I asked to consider contempt proceedings. Although I considered it, I made a conscious decision not to press Mr. Dennis on the issue. It would have interfered with counsel’s trial choices and their presentation to do otherwise.

[41] The Crown argued in submissions that Mr. Dennis was passing blame to the cousin, an imaginary person. The Crown could not call or find this person in order to investigate him. This should greatly affect Mr. Dennis’ credibility. The defence argued in response that Mr. Dennis’ decision not to name the cousin out of fear was completely reasonable and nothing should be drawn from it.

[42] I agree with the Crown. The refusal to identify the cousin damages Mr. Dennis’ credibility. It is true that an accused has the right to silence at the investigatory stage and the trial stage: R. v. Turcotte, 2005 SCC 50 , [2005] 2 S.C.R. 519; R. v. Noble, 1997 SCC 388 , [1997] 1 S.C.R. 874. However, although he never has a legal obligation to do so, if at trial the accused elects to testify, he sacrifices his right to silence. Having chosen to give evidence on his own behalf, he must bear the full responsibility that comes with that decision. An accused, like an ordinary witness, must answer all questions put by the lawyers, subject only to rules of relevance, admissibility, and privilege.

[43] The Supreme Court said in Globe and Mail v. Canada (Attorney General), 2010 SCC 41 at para. 1 :

It is a general and well-accepted rule of evidence that witnesses who are called to testify are obliged to answer the questions put to them, so long as they are relevant.

[44] There is no right to pick and choose what questions to answer and what not to answer: “The Law of Witnesses and Evidence in Canada” online, (Peter J. Sankoff ), § 9:10. Refusing to Testify or Answer.

[45] Similarly, a witness has no right to object to answering a question on the grounds of irrelevance: R. v. Fields, (1986) , 28 C.C.C. (3d) 353, 53 C.R. (3d) 260 (Ont. C.A.) at para. 11 . The irrelevancy of a question may be a ground to challenge a contempt conviction but that is a different issue.

[46] The questioning of Mr. Dennis about the cousin and his identity was clearly relevant and admissible. With respect to whether the area is privileged, it could not be credibly argued that it was. Comparing the situation to recognized legal privileges, such as police informer privilege, journalistic-source privilege, and solicitor-client privilege, as well as the legal rules around professional secrecy, demonstrates that the constituent elements of a recognized privilege were wholly absent. On the most general level, there could be no assessment of competing interests which is at the heart of these areas of privilege: Globe and Mail at paras. 49-60 ; R. v. National Post, 2010 SCC 16 . The bald, unsupported assertion that Mr. Dennis was in fear for his life precluded any judicial balancing of interests.

[47] In this case, Mr. Dennis, represented by counsel, decided to withhold the identity of his cousin. It is to be presumed that Mr. Dennis made his decision with open eyes. It was reasonable to expect that not divulging this information could well have an effect on his testimonial credibility. He would have received advice of counsel on this question. Mr. Dennis balanced the supposed threat to his life against the possibility that not revealing the name of the person behind the importation would impact negatively on his credibility.

[48] The purported actions of the cousin was not a peripheral issue. The cousin formed the central foundation for Mr. Dennis’ mistaken belief that there was cash in the suitcases. The defence hung largely on the cousin and his supposed conduct.

[49] There were good reasons why a person in Mr. Dennis’ position would not want to name names. Identifying this person could well have led the police to commence an investigation to assess Mr. Dennis’ credibility. The cousin, if he existed, may have had an alibi, for example, for the time Mr. Dennis said he was down with him in St. Maarten. Or, on the other hand, the airline manifests could have been checked to see if he had been down in St. Maarten as Mr. Dennis said he was. Other steps could have been taken.

[50] Mr. Dennis’ unilateral decision not to divulge the cousin’s identity precluded any scrutiny of the cousin and, consequently, of Mr. Dennis’ version of events which put the cousin at the centre of the drug importation. It also made impossible to weigh Mr. Dennis’ claim to be in fear for his life, the very reason Mr. Dennis claimed he could not divulge identity. As a consequence, the person actually guilty of the offence, and who dupped Mr. Dennis into assisting, was a phantom. The identity of the cousin nor the validity of Mr. Dennis’ fear of him could not be tested in court.

[51] In my view, the failure to name the cousin must bring with it evidentiary repercussions. It ought not to lead on its own to a wholesale rejection of Mr. Dennis’ evidence. However, it does diminish Mr. Dennis’ credibility in relation to the role played by his cousin. It is difficult to give credence to the existence and role played by the cousin. Faith in a witness is diminished when they deliberately refuse to disclose a vital factual part of their version of events, facts that could be investigated by the police and potentially proven false.

THE EXCHANGE OF SUITCASES

[52] An important piece of Ms. Sherratt’s evidence was about the suitcase switch. Soon after getting in the taxi from the airport to her resort, the taxi stopped in a remote area and another car pulled up. Mr. Dennis said they were his cousins. They all got out of the cab. Her and Amanda’s suitcases were taken out of the taxi, their belongings were removed and then placed in two other suitcases which must have been in the other car. This happened very quickly. Presumably, this was likely when the drugs were put into the suitcases. Ms. Sherratt’s evidence was not clear whether Mr. Dennis was in the car with her or in another car. But he was present at the scene.

[53] Mr. Dennis testified that he was in another vehicle with his cousin and another man and were driving in front of the taxi carrying Ms. Sherratt and Ms. Marsh. They stopped in a dark parking lot, and because he had been drinking a lot, he got out to relieve himself. He was about 10-15 feet away from the cars and it took a long time for him to finish. He never saw or heard anything involving suitcases. When he got back to the cars, the women and his cousin were standing outside.

[54] This story is unbelievable. At perhaps the major point of clandestine action, when the suitcases were loaded with the drugs, Mr. Dennis did not see what had happened, did not hear what had happened, and never noticed that the suitcases he had bought for the women had been switched. This degree of obliviousness appears more convenient than real. I do not believe it.

THE EFFORT INVOLVED IN THE ST. MAARTEN TRIP

[55] On both Ms. Sherratt’s and Mr. Dennis’ evidence, there was an enormous amount of time, energy, money, and person power put into the importation of whatever was in the suitcases. There were the preparations—buying suitcases, purchasing plane tickets, obtaining a room at the resort, getting passports, providing spending money. Mr. Dennis himself went down to St. Maarten to shepherd the scheme along. According to him, the cousin was there as well. There were helpers of different kinds with different roles. And, according to Mr. Dennis, this was all to bring back cash to Canada. Importing money is a regulatory offence not a criminal offence. The women were to be paid $10,000 for their efforts, a large amount for simply bringing in money to Canada contrary to regulations.

[56] In view of all of this, in my opinion, it is much more likely that it was cocaine in the suitcases, not money. The effort and the surreptitious nature of the conduct support that it was cocaine and that it was known by Mr. Dennis to be cocaine. It was agreed that the cocaine in this case could have been purchased in St. Maarten for between $36,000 and $48,000 and sold in Canada, depending on whether retail or wholesale, for between $211,000 and $440,000 for a potential profit of between just under $150,000 up to $405,000. This amount of profit would be worth the effort; the monetary benefit of bringing in money would not be. According to Ms. Sherratt, Mr. Dennis said he wanted to smuggle in the money in order to avoid paying taxes on it. This was a major effort for such a limited benefit.

[57] Furthermore, into this category also falls the surprise presence of Mr. Dennis in St. Maarten. It would be odd indeed if Mr. Dennis went down to St. Maarten to ensure that cash the women were to bring back was carefully handled. The amount of risk and potential profit could not justify this. The reason Mr. Dennis gave on the witness stand for going to St. Maarten, to ensure the women were comfortable, is nonsensical. He only saw them twice.

[58] This factor also supports an inference that Mr. Dennis knew that there was cocaine in the suitcases and did not honestly believe, contrary to his testimony, that it was cash.

CONCLUSION

[59] Because the defendant has testified and there is a major credibility issue in the case, the rule in R v. W.(D.), 1991 SCC 93 , [1991] 1 S.C.R. 742 applies. Summarized, if Mr. Dennis’ evidence and other supportive evidence that he did not know about the cocaine leaves a reasonable doubt, he must be found not guilty. On the other hand, the Crown must prove beyond a reasonable doubt that Mr. Dennis knew that it was cocaine the women were carrying. It is not an either/or preference between the Crown and defence. The third alternative of being left in a state of reasonable doubt is crucial.

[60] Mr. Dennis’ evidence that he honestly believed there was money in the suitcases and not cocaine, taken in the context of all the other supportive evidence, is neither believable nor does it leave a reasonable doubt. I reject it based on the cumulative weight of the prior drug dealing, the failure to name the cousin, the implausibility of not noticing the switch of the suitcases, and the extravagant efforts to set up the scheme and bring back what was supposedly only money from St. Maarten. The evidence relied upon by the Crown in the context of all the evidence convinces me beyond a reasonable doubt that Mr. Dennis knew it was cocaine and that he aided and abetted in its importation: R. v. Briscoe, 2010 SCC 13 at paras. 14-16 . He orchestrated the cocaine importation scheme from start to finish. His guilt is the only reasonable inference.

[61] There will be a finding of guilt on the importing count, count 1.

II. RESIST ARREST, COUNT 3

[62] On March 12, 2020, the police had gathered sufficient information to arrest Mr. Dennis for the importing. A number of RCMP officers in unmarked cruisers parked in his apartment outdoor parking lot, waiting for him to exit and get into his vehicle. They would then effectuate the arrest.

[63] Mr. Dennis eventually came out, moved quickly into his vehicle, and as the police officers began to surround him, drove out of his spot and sped away. Clearly, and it was not argued otherwise, objective grounds existed for the arrest and the officer in charge of the operation, Cst. Kabir Khoshi, subjectively believed that there were sufficient grounds.

[64] The issue to be decided is whether Mr. Dennis knew that it was the police attempting to apprehend him. If he did know, his flight from the scene of the takedown was an intentional act for the purpose of resisting arrest. The proper verdict would be guilty. If it is not proved beyond a reasonable doubt that Mr. Dennis knew, as he testified he did not, he must be found not guilty.

[65] About 8 officers in 4 unmarked police cars arrived and set up positions in the parking lot early in the morning. The evidence of the five police officers who testified contained inconsistencies about where they were situated when Mr. Dennis came out at about 3:30 p.m. and what they saw. Officer Fatallah, who was together with Const. Khoshi in a car, testified that Mr. Dennis got in his car and accelerated forward, soon hitting a speed of 80 kilometers an hour in the parking lot. When challenged by defence counsel about this high speed, the officer launched into a long and earnest explanation of his prowess in estimating speed based on his experience in provincial speed enforcement. But it is very unlikely that Mr. Dennis’ type of car could possibly have hit this high speed in the limited area available to it in the parking lot.

[66] Despite the many flaws in the police evidence, some basic facts are beyond dispute. The officers were wearing vests with POLICE written on the front and back, although Officer Khoshi was also wearing a traffic type vest which could theoretically have obscured the POLICE word written on his chest. Officer Khoshi made the call on his radio to begin the takedown, exited his vehicle and called out “POLICE!” Mr. Dennis was about 15 metres from him and still walking towards his vehicle. At this point, Mr. Dennis took off at a run and jumped into his vehicle, immediately pulling forward and accelerating. Officer Khoshi was now about 6 metres away. Mr. Dennis drove off. The driveway exit was not blocked and so he got away. It had been agreed beforehand that they would not chase him.

[67] There were about six officers coming towards him when Mr. Dennis ran and got in his car. Others besides Officer Khoshi yelled out POLICE! Officer Sabourin got to the passenger door of Mr. Dennis’ vehicle at the time Mr. Dennis got in. He opened the door as Mr. Dennis started to drive off.

[68] Mr. Dennis testified that he did not know that it was the police. It was not until he drove away that he realized it may well have been. Mr. Dennis did not testify as to who he thought the people coming at him were. He phoned his girlfriend in his apartment soon afterwards and learned that it was in fact the police. They were executing a search warrant. But he did not return, instead turning himself in several days later.

[69] In my view, despite the flaws in the police evidence, there is no doubt that Mr. Dennis knew it was the police. He saw the word written on their chests, he heard them call out, and they were rushing towards him. The one officer was opening the passenger door of Mr. Dennis’s vehicle as he began to drive away. There was no other reasonable possibility other than that these people were police officers. Mr. Dennis did not testify to an alternative belief.

[70] I should record here that I do not accept that the police stole money from his apartment during the execution of the search warrant. There was no confirmation for Mr. Dennis’ evidence in that regard and the police officers denied it. I did not believe him in this regard.

[71] Based on all the evidence, I am convinced beyond a reasonable doubt that Mr. Dennis knew that it was the police. He intended to evade them and resist arrest. He will be found guilty of this count.

[72] In summary, the indictment will be endorsed, Guilty of Count 1; Guilty of Count 3.

D.E HARRIS J. Released: April 13, 2023