COURT FILE NO.: CR-20-362-00
DATE: 2023 09 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Gregory Corriveau, for the Crown
- and -
Cassandra Gordon
Maija Martin, for Ms. Gordon
HEARD: September 22, 2023
RULING
D.E HARRIS J.
[1] The defendant is charged with importing cocaine from Aruba to Canada on November 6, 2019. She and her 12-year-old son JB were found to have cocaine taped to their bodies in secondary inspection at Pearson Airport. The defence is duress.
[2] Ms. Gordon testified that on her way to the airport in Aruba for the return flight to Pearson, the two men she had causally met in the previous days took her to a bungalow where she was threatened with a gun. The cocaine was taped to her and then to her son JB. The two men said that they had people watching them. Ms. Gordon was very frightened, did not trust the police or customs officials and did not feel they would believe her if she disclosed that she was carrying drugs under coercion. The Crown accepts that if Ms. Gordon’s evidence is believed or leaves the jury in reasonable doubt, duress lies and they must find her not guilty.
[3] At the conclusion of Mr. Corriveau’s cross-examination of Ms. Gordon, he suggested that she had willingly agreed to carry the cocaine and went to the bungalow for this purpose. However, “everything went wrong” when the men forced JB to carry cocaine as well. That is when she refused. It was at this point that Ms. Gordon was coerced, not before. Ms. Gordon answered these questions from the Crown in the negative and denied his suggestions. Curiously, what appears to be the Crown’s main theory—that Ms. Gordon’s entire duress evidence is untrue—was never put to her in cross-examination. Only the “alternate theory” was put.
[4] After inquiry in the absence of the jury, Mr. Corriveau has said that he intends to go to the jury with this alternate theory based on these last questions put to Ms. Gordon. Ms. Martin argues that this should not be allowed.. Both counsel accept that the test to be applied on the question is whether there is an “air of reality” to the alternate theory. If there is no air of reality, the Crown should not be permitted to advance the theory in front of the jury.
[5] In my view, the Crown’s alternate theory lies in the realm of speculation. The full evidentiary context does not generate reasonable inferences to support the theory. The theory cannot be left with the jury.
[6] Ms. Gordon testified that the drugs were taped to her body under duress and then to her son’s body under duress. In her evidence, she detailed the circumstances in the bungalow and its immediate aftermath. She denied that she ever voluntarily agreed to carry and import cocaine. That is the essence of her defence.
[7] It may be that the alternate theory of the Crown is premised on the idea that a mother loves her 12-year-old son and has a strong protective instinct. Ms. Gordon’s evidence certainly supports this premise. But that observation is incapable of going further and populating the evidentiary vacuum in a way to lend support to the Crown’s alternate theory.
[8] These are the steps along the Crown path to support this theory: 1. There was no duress originally and Ms. Gordon voluntarily agreed to import the drug. This inference is available to the Crown and is based on a direct challenge to Ms. Gordon’s evidence and her credibility. It is the Crown’s main theory; 2. The two perpetrators in Aruba sprung the demand on Ms. Gordon only at the last minute in the bungalow that her 12-year-old son would have to carry drugs as well; and 3. This led Ms. Gordon to come under duress. It was based on threats to her son, not to her, at least originally.
[9] There is no direct, nor in my view, circumstantial evidence to back up this scenario. The line between evidentiary inference and speculation is notoriously difficult to draw: R. v. Khan, (1998) 126 C.C.C. (3d) 35 at paras. 70-77; leave refused 138 Man. R. (2d) 124 (note); Mezzo v. R., 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802 at para. 62. All we know about what happened in the bungalow is from Ms. Gordon’s evidence. A finder of fact can believe some, none or all of a witness’ evidence. However, what is accepted or believed must not be speculative. To cobble together and fill in a detailed and specific deviation from her evidence of the kind that the Crown seeks is simply not possible. There is nothing of evidentiary substance upon which to hang such a scenario.
[10] In the face of Ms. Gordon’s denial of the suggestion, and in the absence of any other evidence which could form at least some foundation for it, the Crown theory falls on the speculative side of the line.
[11] For these reasons, the Crown cannot go the jury with their alternate theory. In the charge to the jury, in the section dealing with "what is evidence?", I will stress that the suggestions put by the Crown at the end of the cross-examination of Ms. Gordon were denied by her and therefore are not evidence and cannot be used in any way in the jury's decision.
D.E HARRIS J.
Released: October 30, 2023
COURT FILE NO.: CR-20-362-00
DATE: 2023 09 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
-and-
Cassandra Gordon
RULING
D.E HARRIS J.
Released: October 30, 2023