Court File and Parties

Court File No.: CR- 22-237 Date: 2024 06 05

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING M. Bedini, for the Respondent Respondent

- and -

LAURIE TOYKA SIMON S. DiClemente, for the Applicant Applicant

Heard: June 3, 2024

RULING ON APPLICATION FOR DIRECTED VERDICT (Delivered Orally)

Baltman J

Introduction

[1] Ms. Simon is charged with importing nearly half a kilo of cocaine into Canada. The sole issue is knowledge, i.e. whether she knew cocaine had been secreted within her luggage.

[2] The trial is proceeding before me as a judge alone. After the Crown closed its case, Ms. Simon brought a motion for a directed verdict. In this ruling I am dismissing that motion. My reasons follow. If necessary, they will be expanded upon at a later date.

Factual Allegations

[3] The essential facts are agreed upon. Much of them are based on surveillance footage from Toronto Pearson International Airport (“Pearson”).

[4] Ms. Simon arrived at Pearson in the evening of October 20th, 2019, on a direct flight from Antigua. She was travelling alone. After passing through the primary Canada Border Services Agency (CBSA) inspection area she proceeded to luggage carousel #5. She had two shoulder purses. She is seen using her cell phone while travelling through the airport and while awaiting and receiving her luggage.

[5] Ms. Simon eventually lifted three separate bags from the luggage carousel. She placed each of them by her side. She then removed the luggage tag from one of the suitcases and wrapped it around the strap of one of her shoulder purses. Ms. Simon then called a porter for assistance and passed through the secondary CBSA checkpoint with two of the three suitcases she claimed off the carousel, along with her shoulder purses. She left the third suitcase – from which she had removed the luggage tag - sitting beside the carousel.

[6] Ms. Simon left the airport with her personal items and the two suitcases she claimed off the carousel. The suitcase she left sitting beside the carousel was discovered there the next morning (October 21) by BS Officer Cullen. He opened the suitcase, and found a second suitcase inside. He x-rayed both bags and discovered that each contained cocaine within their inner linings. Nothing else was found inside of the suitcases.

Legal Framework

[7] When an accused applies for a directed verdict of acquittal at the end of the Crown’s case, the trial judge must determine whether there is any evidence upon which a reasonable jury, properly instructed, could find the accused guilty of the crime charged. The threshold that the Crown must pass on a directed verdict motion is very low; the motion should not be granted in a case where there is admissible evidence which, if believed, would result in a conviction. The trial judge may direct an acquittal only if the Crown fails to adduce some evidence of culpability on one or more of the essential elements of the offence charged: R. v. Charemski, [1988] 1 S.C.R. 679, at para. 2; R. v. Tomlinson, 2014 ONCA 158, at para. 151.

Submissions and Analysis

[8] The defence argues that the actus reus of importing does not exist here, because the suitcase was abandoned before it cleared Customs. He relies on para. 106 of R. v. Okojie, 2021 ONCA 773, at para. 106, where Watt J.A. observed that the “physical element” of importing “occurs when the contraband (and its carrier) clear Customs.” Until then, maintains the defence, the bag has not entered Canada and therefore the act of importation is incomplete.

[9] However, Watt J.A. proceeded to note that clearing Customs “concludes” the physical element of the offence. That endpoint does not mean that someone who takes physical possession of the suitcase at the airport but subsequently leaves it behind was not in control of it.

[10] The actus reus in this case was factually completed when Ms. Simon physically took possession of the suitcase: R. v. Gill, 2017 ONSC 3558, at para. 70. She removed it with her own hands from the carousel. She then took the luggage tag off that suitcase and attached it to her purse. These acts are an acknowledgment by Ms. Simon that the bag belongs to her. That she ultimately left that bag by the carousel may, depending on the evidence, be a mitigating feature. But it does not alter the fact that she physically took possession of that bag.

[11] Nor does it matter that she never physically tried to get the suitcase out of secondary. As the Supreme Court of Canada found in R. v. Bell, [1983] 2 S.C.R. 471, the offence of importing begins once the drugs cross the border into Canada. The majority held that it was not necessary to prove that the accused physically carried the goods into the country.

[12] Following that reasoning, in R. v. Metcalf, 2022 ONSC 5247, Dennison J. concluded that the actus reus of importing is legally complete once the drugs crossed the border into Canada. As she stated at para. 52, “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.”

[13] And even more recently, in R. v. Dhatt, 2023 ONCA 699, our Court of Appeal affirmed that personal carriage of narcotics “over the border” satisfied the physical element of the offence, as the accused has thereby caused a controlled substance to be brought into the country: para. 18. This suggests that the critical dividing line is not, as the defence suggests, the point where the traveller exits from secondary, but rather when she causes the narcotics to enter Canada. It makes no difference whether the means of entry is a truck driving over the border, as in Dhatt, or an airplane flying over the border, as here. In either case the accused has participated in the physical element of the offence.

Conclusion

[14] For those reasons, the application is dismissed.

Baltman J

Released: June 5, 2024