R. v. Tremblay, 2013 BCSC 705

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tremblay, 2013 BCSC 705 Date: 20130425 Docket: 26073-2 Registry: Vancouver Regina v. Nadine Fayann Prevost and Michel Andre Norman Tremblay Before: The Honourable Mr. Justice Fitch Corrected Judgment: The front page of this Judgment has been amended to reflect the names of Counsel for the Crown and in paragraph 180, the first line has been corrected on April 25, 2013. Reasons for Judgment Counsel for the Crown: Edlyn Laurie & Clare Benton Counsel for Ms. Prevost: Leslie Anne Wall Counsel for Mr.

Tremblay: George Xuereb Place and Date of Hearing: Vancouver, B.C. March 5-8, 11 and 12, 2013 Place and Date of Judgment: Vancouver, B.C. April 25, 2013 A.

Introduction [ 1 ] Nadine Prevost ("Prevost") and Michel Tremblay ("Tremblay") stand jointly charged in a single count indictment alleging that they: ... on or about April 9, 2010 at or near the City of Richmond, in the Province of British Columbia, did unlawfully possess a controlled substance to wit: N-methylenedioxyamphetamine (MDMA or Ecstasy), for the purpose of exporting from Canada, contrary to Section 6(2) of the Controlled Drugs and Substances Act. [ 2 ] Both accused were stopped by Canada Border Service Officers ("BSOs") in the jetway at Gate 51 of the Vancouver International Airport as they were about to board Air Canada flight 33 destined for Sydney, Australia.

They were travelling together. As neither was able to provide consistent or sensible answers to basic questions, the BSOs formed reasonable grounds to suspect that both were exporting illegal narcotics out of Canada. Both accused were detained, cautioned and advised of their right to counsel. [ 3 ] Both were then taken to a secondary inspection area ("secondary") in the airport.

Their checked luggage, consisting of three bags, one red hard-sided suitcase checked in by Prevost, and two soft-sided black suitcases, one checked in by Prevost (but with a luggage tag with Tremblay's name on it) and the other one checked in by Tremblay, was removed from the flight. After further questioning in secondary, the luggage was eventually opened, emptied of its clothing and deconstructed. All three pieces of luggage contained false compartments in which MDMA had been secreted. Two packages of MDMA were retrieved from a hidden compartment in the top side of Prevost's red hard-sided suitcase.

The two packages weighed 1.2 and 1.93 kilograms, respectively. Both black soft- sided suitcases had false bottoms. The black suitcase checked in by Prevost had secreted in the false bottom a package of MDMA weighing 2.37 kilograms. The black suitcase checked in by Tremblay had secreted in the false bottom two packages of MDMA weighing 1.13 and 1.24 kilograms, respectively.

In total, the three pieces of checked luggage contained 7.87 kilograms of MDMA. [ 4 ] The central issue that arises on this trial is whether the Crown has proven beyond a reasonable doubt with respect to each separate accused that they had the requisite knowledge that their checked luggage contained illicit drugs. Identity is not in issue. It is not contested that both accused exercised control over the luggage that contained the narcotics. It was admitted at trial by both accused that all three pieces of luggage contained MDMA in the quantities noted above.

If the Crown has established beyond a reasonable doubt that each accused had the required legal knowledge that illicit drugs were in the suitcases, it is not contested and the evidence establishes that the accused possessed the drugs for the purpose of exporting them from Canada. [ 5 ] In order to establish the mens rea of the offence charged, the Crown must prove beyond a reasonable doubt that each accused

had legal knowledge that illicit drugs were in the suitcases.

The Crown can establish this essential element by proving that the accusedhad actual knowledge of the existence of illicit drugs in the suitcases, were reckless as to the existence of illicit drugs in the suitcases, orwere wilfully blind as to the presence of illicit drugs in the suitcases. [6] Recklessness involves a finding or inference based on all the circumstances of the case of knowledge or conscious awareness ofa danger or risk that the conduct of the accused could bring about the result prohibited by law, and persistence by the accused in thatcourse of conduct. As noted in R. v.

Sansregret, (SCC), [1985] 1 S.C.R. 570 at para. 16, recklessness is found in "theconduct of one who sees the risk and who takes the chance." [7] Wilful blindness can also substitute for actual knowledge where, as here, knowledge is a component of the mens rea of theoffence charged. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he orshe sees the need for further inquiries but deliberately chooses not to make those inquiries. An accused who is wilfully blind adopts acourse of "deliberate ignorance": R. v.

Briscoe, 2010 SCC 13 , [2010] 1 S.C.R. 411 at paras. 21-24.

As Sopinka J. put it in R. v.Jorgensen, (SCC), [1995] 4 S.C.R. 55 at para. 103, "[a] finding of wilful blindness involves an affirmative answer to thequestion: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?" [8] On the evidence in this case, Crown counsel takes the position that it is open to the Court to find beyond a reasonable doubtthat each accused knew of the presence of illicit drugs in the suitcases, or was reckless or wilfully blind to this fact. [9] Counsel for Prevost takes the position that the Crown has not proven beyond a reasonable doubt that Prevost knew thesuitcases contained illicit drugs, nor has the Crown established beyond a reasonable doubt that she was reckless or wilfully blind to thisfact. [10] Counsel for Tremblay acknowledges that there is an evidentiary foundation upon which the Court could convict Tremblay onthe basis of recklessness, but takes the position that the evidence does not establish beyond a reasonable doubt that he had actualknowledge of the presence of illicit drugs in the suitcase or that he was wilfully blind to that fact.

B. Brief History of the Proceedings [11] A blended voir dire was held before the trial to determine the voluntariness of statements made by Prevost to BSO Getzie("Getzie") at the jetway and, thereafter, in secondary. Prevost also challenged the admissibility of those statements asserting violationsof sections 10(

a) and 10(

b) of the Charter. I was satisfied beyond a reasonable doubt that the statements made by Prevost to Getzie wereshown by the Crown to be voluntary and that the statements were obtained in a constitutionally compliant manner. Accordingly, thestatements made by Prevost to Getzie were admitted on the trial. [12] Tremblay did not join in on the voir dire and admitted that the statements he made to BSO Than ("Than") and BSO Baxter("Baxter") at the jetway, and later in secondary, were voluntary and admissible. [13] With the agreement of counsel, the evidence called on the voir dire was admitted on the trial proper.

Counsel were satisfied, asam I, that adopting this procedure would not result in the inadvertent inclusion of inadmissible evidence on the trial proper: R. v. Jir,2010 BCCA 497 at para. 10. [14] The Crown called five witnesses at trial: BSOs Getzie; Baxter; Than; Purewal; and Cpl. Huang, who was qualified to giveopinion evidence on the pricing, use, packaging and distribution of MDMA, including its transportation outside Canada's borders. Acting Superintendent Nanner was called by the Crown on the voir dire and by Tremblay at trial. [15] Both Prevost and Tremblay testified in their own defence. C. The Evidence (

a) BSO Getzie [16] On April 9, 2010 BSO Getzie was in the jetway of Gate 51 at the Vancouver International Airport enforcing the provisions ofthe Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, as amended. In essence, she was looking fortravellers who were carrying more than $10,000 out of the country and who had failed to report this before going through security. AirCanada flight 33, outbound to Sydney, Australia was scheduled to depart from Gate 51 at midnight. [17] At approximately 11:45 p.m.

Getzie intercepted Prevost and Tremblay in the jetway as they were about to board flight 33. Getzie asked for and was provided with their passports and boarding cards. [18] Getzie asked where they were going. Prevost said to Australia. When Getzie asked the purpose of the trip, Prevost replied thatshe was going with her boyfriend on a birthday trip. Getzie noted from Prevost's passport that it was not her birthday so she pressedPrevost on the point. Prevost explained that it was the only time she could get away. When Getzie asked if this was due to work,Prevost replied that it was.

When Getzie asked what work Prevost did, Prevost replied that she was unemployed. [19] When asked about the tickets, Prevost told Getzie that a friend named "Jimmy" had bought the tickets for her. When Getzieasked why, Prevost explained that Jimmy was good at making travel arrangements. At this point, Getzie asked BSO Than to continuespeaking with Tremblay while she spoke with Prevost. Than escorted Tremblay to another part of the jetway. [20] Getzie then asked Prevost if Jimmy was a travel agent. Prevost said that he was not.

When Getzie asked what Jimmy did forwork, Prevost replied that she did not know. [21] Prevost advised Getzie that she had one suitcase that contained clothes, shoes and shampoo. Getzie asked Prevost to produceher itinerary and noted that it included stopovers in Shanghai, Delhi and London, before returning to Vancouver on April 29, 2010.

When Getzie asked Prevost about these stops, Prevost told her that when Jimmy purchased the tickets he told her he had family in India that it would be a good place for her to visit. When Getzie asked if Prevost had a hotel booking in Australia, she replied that she did but was not sure where. When asked about her accommodations in India, Prevost said that she would be staying with Jimmy's family. [ 22 ] Getzie asked Prevost if anyone had given her anything to take on the trip.

Prevost replied that she had not done anything wrong. [ 23 ] Getzie expressed to Prevost a concern that she may have narcotics in her suitcase. Prevost again replied that she had not done anything wrong and that she had never had anything like this happen to her. [ 24 ] Given the inconsistencies and uncertainties in Prevost's account, Getzie detained Prevost for attempting to smuggle narcotics out of Canada, advised her of this fact, and escorted her to secondary.

Getzie made arrangements for the suitcases to be removed from the aircraft. [ 25 ] A DVD (video only) depicting approximately one hour of Getzie's interactions with Prevost at secondary (from when they arrived to just before the x-ray of Prevost's red suitcase) was introduced at trial. Prevost was talkative, demonstrative and emotionally upset at various points during the interview, particularly after the suitcase was emptied of its contents. Getzie is shown holding Prevost's passport, travel documents and trip itinerary and asking questions of Prevost.

The passports of both Prevost and Tremblay were stamped with a visa authorizing travel in the Republic of India after April 7, 2010. [ 26 ] On arrival at secondary at about 12:05 a.m. on April 10, 2010, Getzie asked Prevost when she got her suitcase. Prevost replied that she bought the suitcase that day. When Getzie asked where it had been purchased, Prevost replied that she had not bought it but borrowed it from a friend named Desiree. Prevost advised Getzie that Tremblay had two suitcases. [ 27 ] Getzie asked Prevost how much she paid for her tickets.

Prevost told her that she gave Jimmy $1,500 but was not sure of the total cost of the tickets. She said that Jimmy would tell her if it was more than $1,500 so she assumed that her ticket cost about that much. When asked why Jimmy purchased the tickets, Prevost said it was because he was knowledgeable about making travel arrangements and that she always wanted to go to India. When asked what she was seeing and doing in India, Prevost replied that she was seeing a temple.

When Getzie brought to Prevost's attention that the itinerary reflected that her ticket actually cost $3,550, Prevost said that she did not know it was that expensive. Getzie asked again if Prevost had a hotel booking in Australia. Prevost replied that she did and that she had not paid any additional money for her accommodation in Australia. Getzie testified that she noted the cost of the Australia hotel booking, as reflected on the trip itinerary, to be $750. [ 28 ] When Getzie asked what she would be doing in Australia, Prevost replied that she was looking around.

When asked by Getzie who she was meeting in Australia, Prevost said she did not know but that Jimmy told her to call the number of a Surrey-based travel consultant on arrival in Australia to get more information, including about the India leg of the trip. An envelope containing a Surrey- based travel consultant's business card was in the documents Prevost provided to Getzie in the jetway.

When Getzie asked why Prevost did not call this number beforehand, Prevost replied that she did not have time to do so. [ 29 ] Prevost told Getzie the tickets had been purchased a few days prior to travel and given to her by Jimmy. Getzie noted that the tickets had actually been purchased the day before the scheduled travel date. Prevost could not explain to Getzie why the tickets were purchased so close to the travel date. [ 30 ] When Prevost's red hard-sided suitcase arrived at secondary, Getzie testified that she asked Prevost whether the suitcase was hers. Prevost confirmed that it was.

Prevost also said that she packed the bag herself and, when asked if she was aware of all of its contents, said "Yes, absolutely." [ 31 ] When questioned about Jimmy, Prevost said he was a family friend and that she had known him for quite some time. She told Getzie that she saw Jimmy about twice a month. When asked if she knew Jimmy's last name, Prevost said she did not. When asked if she knew what Jimmy did for work, Prevost said "No". [ 32 ] Getzie testified that she began to empty Prevost's suitcase of its contents at about 1:00 a.m.

Before Prevost's suitcase was fully emptied, Getzie knew that one of Tremblay's suitcases had been x-rayed and appeared to contain rectangular packages in a false bottom. [ 33 ] After emptying the bottom of the suitcase, Getzie noted that the top side of the suitcase was heavy. Prevost told Getzie that she had a lot of stuff in the top side of the suitcase.

In fact, Getzie testified there were very few items in the top side of the suitcase - some socks and bathing suits were the only items that were eventually removed from the top side. [ 34 ] Once Getzie completed emptying the top side, she noted that the top side was heavier and denser than the bottom. She expressed concern to Prevost about the weight of the top side of the suitcase, asked Prevost why it was so heavy and told Prevost that she suspected the suitcase contained narcotics. She asked Prevost whether Prevost thought there was, or could be, drugs inside.

Prevost replied that she did not know, that Jimmy gave her the suitcase and that, "The drugs aren't mine". Getzie testified that no drugs or suspicious packages had been identified in the red suitcase when Prevost made this remark. Getzie testified in cross-examination that she remembered very clearly that this remark was made prior to the x-ray of Prevost's red suitcase.

Getzie testified that she did not record this remark in her notebook but included it in her "will say" which was prepared later that same day. [ 35 ] Prevost then told Getzie that Jimmy had brought all three suitcases for them to use to her house at 7:00 p.m. on the day of travel. She said she was told to pack her belongings in the suitcase. She told Getzie that she did not know what was in the suitcase but thought it could be something bad.

Prevost told Getzie that both she and Tremblay were at her house on the evening of April 9, 2010, that both of them were nervous, and that one or both of them were drinking. [ 36 ] When Getzie asked Prevost how they got to the airport, Prevost initially said that her roommate took them but later said that Jimmy did. [ 37 ] Getzie testified that BSO Baxter x-rayed Prevost's red suitcase in her presence at about 1:15 a.m. The x-ray revealed two

rectangular packages in the false top of the red suitcase belonging to Prevost. Getzie arrested Prevost at 1:17 a.m. [ 38 ] Getzie testified that after her arrest Prevost, who was chatty and demonstrative throughout, became deflated. She told Getzie that Jimmy approached her at a pub and asked if she wanted to go on a trip. Jimmy did not tell her where she would be going but said that it would be a paid vacation for her. He said that she would be paid for her travel, plus $5,000 when she returned to Vancouver. She told Getzie that this happened within a month of the travel date.

She told Getzie she had been contacted nine days before the trip and told to be ready the next day. She was contacted the next day and told the trip was not happening. She was again contacted seven days before the trip and told that she was leaving the next day. She was contacted the day after that and again told that the trip was not happening. She was contacted the day before the actual travel date and told she was leaving the next day. She told Getzie that she did not know Tremblay was going until a few days before the last call.

She told Getzie she did not really know Tremblay but was told to act as if they were a couple. [ 39 ] Getzie also testified that Prevost told her at some point during the interview that she had turned a blind eye to what was in the suitcase. Getzie testified that she could not recall whether this was said before or after Prevost's arrest. She denied that Prevost only said this after she suggested to Prevost that she knew or should have known that there were drugs in the suitcase and told her to "stop turning a blind eye" to what was going on.

Getzie was adamant that it was Prevost who brought up turning a blind eye to what was in the suitcase. Getzie testified that Prevost said she knew the suitcase "wasn't cricket." Getzie denied in cross-examination that Prevost only eventually agreed with Getzie's suggestions that she should have known there were drugs inside the suitcase. [ 40 ] Getzie testified that Prevost told her Jimmy said nothing bad was going to happen. When Getzie asked Prevost what Jimmy did, Prevost then told her that Jimmy is a drug dealer who sells in local bars.

Prevost told Getzie that she had never done anything like this before but that Tremblay had bragged to her about previously swallowing narcotics for the purposes of transportation, for money. [ 41 ] Prevost's red suitcase was subjected to an ion scan at about 2:30 a.m.

The outside of the suitcase tested high for the presence of cocaine and positive for the presence of MDMA. [ 42 ] Getzie testified that after Acting Superintendent Nanner ("Nanner") arrived in secondary she briefed him on the highlights or gist of the investigation, including what Prevost had said, but not on all of the details because there was a lot of information. She has no recollection of Nanner taking notes and no recollection of exactly what she told him.

Nanner was not actively involved in the questioning of Prevost. [ 43 ] Getzie testified that later that morning she was involved in the deconstruction of Prevost's red suitcase and the retrieval of two vacuum sealed packages containing MDMA in powder form from the hidden compartment in the top side. [ 44 ] Getzie testified that she made very few notes in her notebook while standing in the jetway as time is of the essence when doing pre-boarding inquiries of travellers. She testified that she made some additional notes at secondary, but not all of them were verbatim.

She testified that she generally uses quotation marks to indicate whether what is being recorded is a verbatim account of events. She agreed that there were no quotation marks used in her notebook. She testified that she records in her notebook key points that will assist in refreshing her memory. She said that it was her job to engage travellers in conversations not disrupted by a verbatim recording of questions and answers. [ 45 ] Getzie testified that she left work at about 10:00 a.m. on April 10, 2010 and returned at 6:00 p.m. that day to prepare her "will say" statement.

She testified that this statement was based on her recollection of events as refreshed by the documentation she obtained from Prevost and the notes that she made in her notebook. She testified that she dealt with no one else and attended no formal debriefing between her investigation of Prevost and the preparation of her will say. [ 46 ] In cross-examination, Getzie testified that when she prepared her will say, her recollection of her interaction with Prevost earlier was fresh in her mind. She testified that this was a serious matter involving a large amount of narcotics.

While she acknowledged that the extensive conversation she had with Prevost was not reflected in her notebook, she said it stood out in her memory and that when travellers make abnormal or unusual statements they tend to stand out. She testified that after she had all the pieces of the puzzle from her interview of Prevost and the search of her suitcase, she had a complete picture.

She testified that this was "a big deal" and she knew that the paperwork needed to be done the next day. [ 47 ] Getzie adamantly denied a suggestion put to her in cross-examination that she told Prevost in the jetway that she was concerned about Prevost having narcotics and that Prevost said, "I don't know that" or words to that effect. [ 48 ] Getzie similarly denied a suggestion put to her in cross-examination that Prevost said to her in secondary, when concern was being expressed about the hidden compartment in the top side of her suitcase, that if drugs were found in the suitcase, they were not hers.

Getzie was adamant in cross-examination that Prevost never used the word "if" in the context of this conversation. Getzie testified that Prevost said, "The drugs in there are not mine." She testified that the remark stood out because it is not a usual thing for a traveller to say. [ 49 ] Getzie testified in cross-examination that she had no recollection of Prevost saying that she did not know there were drugs in the suitcase and would never have agreed to go on the trip had she known this.

She testified that it was possible Prevost said this at an earlier point in the interview but that Prevost's version of events changed as the interview progressed. [ 50 ] In cross-examination Getzie denied not telling Nanner that Prevost knew or was suspicious that there were drugs in her suitcase.

Getzie also denied telling Nanner only that Prevost knew something bad was in the bag but did not know what it was. [ 51 ] Getzie further denied a suggestion put to her in cross-examination that Prevost said the drugs in the red suitcase were not hers only after the x-ray of that suitcase when Getzie told her she believed that drugs were secreted inside. (

b) BSO Baxter

[ 52 ] BSO Baxter testified that he was also stationed at Gate 51 at the relevant time and that he dealt primarily with Tremblay. His involvement came about when BSO Than waved him over to assist with the interview of Tremblay in the jetway while Getzie was interviewing Prevost in another part of the jetway. [ 53 ] Baxter overheard Than ask Tremblay who purchased the plane ticket. Tremblay said that a third party had done so. Than asked if Tremblay knew this person. Tremblay said that he did not know the purchaser of the tickets and had never met him personally.

Tremblay added that he only knew this person by his first name. Than asked Tremblay about his employment. Tremblay said he worked as a tree planter but was unable to provide details about his income or how frequently he worked. When asked how much money he was carrying, Tremblay said he had no money but that he had given Prevost money to carry for him. When asked how much money he had given her, Tremblay provided no details.

Tremblay provided no details in response to Than's questions about what he was going to do in Sydney and where he was going to stay. [ 54 ] Baxter testified that Tremblay appeared to be nervous, fidgety and uneasy and was avoiding eye contact during the interview. He was perspiring, his hands were trembling and he was moving from side to side. He also appeared to be under the influence of alcohol or drugs but seemed to understand the questions that were being put to him.

He testified that Tremblay became more alert as the interview proceeded. [ 55 ] Than asked Tremblay if a third party had given him luggage to carry on the trip. Tremblay did not answer the question verbally but just stared at Baxter and Than. Baxter testified that he appeared to be trying to avoid the question. [ 56 ] Than asked Tremblay whether any of his checked luggage contained drugs.

There was another long pause while Tremblay stared at both of the officers before saying words to the effect of, "What do you mean?" and, "Well, I don't think so." Baxter testified that Tremblay had become stiff and rigid in his posture. Baxter testified that the pauses between the questions that were asked of Tremblay and his replies were between five and ten seconds long. Than arrested Tremblay at 11:50 p.m. for exporting illegal drugs. [ 57 ] BSO Baxter testified that he x-rayed the first black suitcase at 12:55 a.m. He x-rayed Prevost's red suitcase at 1:05 a.m. and the second black suitcase at 1:20 a.m.

He confirmed that he informed Getzie of the result of the first x-ray before the red suitcase belonging to Prevost was x-rayed. [ 58 ] With respect to the first black suitcase, Baxter testified that once emptied it felt unusually heavy like something was still inside. With respect to the red suitcase belonging to Prevost, Baxter testified that once emptied the weight of the suitcase felt about right. With respect to the second black bag, it also felt unusually heavy once the contents had been removed. (

c) BSO Than [ 59 ] When BSO Than asked Tremblay about the trip in the jetway, Tremblay was slow to give answers. Further, his answers were very general. Tremblay said only that he was going on the trip to do some sightseeing. When questioned about the tickets, Tremblay said he did not know who purchased them or how much they cost because his girlfriend, Prevost, did the planning. He said that he gave her money a few days ago. When asked how much money he was carrying, there was a long pause before Tremblay said that he had given money to Prevost. When asked how much, he was unable to say.

He did not know when the tickets were purchased but said that they were given to him two days ago. When asked why such short notice, Tremblay said he just wanted to get away to relax. [ 60 ] When asked if he was able to get time off work for the trip, Tremblay replied that he had two weeks off. As Than noted the trip was three weeks in duration, he asked Tremblay how this was possible. Tremblay provided no answer to this question. [ 61 ] Than asked Tremblay about his checked luggage.

Tremblay said that he and Prevost checked three suitcases. [ 62 ] When Baxter asked if Tremblay had drugs, Tremblay just stared at them, look down at the floor and said, "I don't know." [ 63 ] Baxter then asked Tremblay if the suitcases belonged to him or if they were given to him by someone else. Tremblay gave no reply to this question. [ 64 ] Than testified that Tremblay was nervous, fidgety and avoiding eye contact. He was slow to respond to questions. Tremblay's eyes were red and he had alcohol on his breath. Than testified that Tremblay may have been under the influence.

While he appeared to understand the questions he was being asked, he provided vague and general responses and, even then, only after long pauses. [ 65 ] En route to secondary, Tremblay asked Than, "What's this all about?" When Than responded that it was based on a belief that drugs or contraband were in the suitcases, Tremblay asked, "Whose belief?" Than responded, "Mine." [ 66 ] At secondary, and after the two black suitcases had been delivered to him, Than asked Tremblay if the bags belonged to him. Tremblay confirmed that they did. Than asked if Tremblay packed the bags himself. Tremblay responded, "Yes".

Than asked if Tremblay was aware of the contents of the suitcases. Tremblay again responded, "Yes" and said that he had packed the suitcases with his girlfriend. [ 67 ] Than testified that the first black suitcase he emptied had only a few items in it - four pairs of women's shoes, a blanket, and a zip-up sweater. When asked, Tremblay said that he had never seen these items before. [ 68 ] Than also testified that when he lifted the empty suitcase it felt abnormally heavy. He said that the suitcase felt full even with its contents emptied.

An x-ray of the suitcase confirmed the presence of a container or object in a false bottom. [ 69 ] Than testified that the second black suitcase contained a mixture of men's and women's clothing and travel maps. Tremblay confirmed that the men's clothing belonged to him. When the second suitcase was emptied it, too, felt abnormally heavy. X-rays of the second suitcase also confirmed the existence of a container or object in a false bottom. Than was present for the deconstruction of all of three suitcases. All of them had MDMA in powder form concealed in a container made of wood which was glued, nailed shut and

covered with a black cloth. (

d) BSO Purewal [ 70 ] BSO Purewal was called by the Crown only on the voir dire . His role that evening was to assist the lead officers in the investigation of Prevost and Tremblay at secondary. His only relevant evidence was that Prevost and Tremblay were at different counters in secondary and that they were not within view or hearing distance of one another when they were being interviewed. (

e) Acting Superintendent Nanner [ 71 ] Acting Superintendent Nanner ("Nanner") arrived at secondary at 1:53 a.m. on April 10, 2010 and spoke with Getzie and Baxter for about 20 minutes. He remembers being apprised of the basic details of what had occurred at the jetway and that three suitcases belonging to Prevost and Tremblay, which were suspected to contain contraband, had been removed from the aircraft. [ 72 ] Nanner testified that he made a

summary of what he considered to be the important information Getzie and Baxter gave him. He testified that he had no recollection of Getzie telling him in the office that Prevost had said she did not know what was in the suitcase but that it might be something bad. He agreed that had Getzie said this to him in the briefing, he would have made a note of it. He also had no recollection of Getzie telling him that Prevost had said, "It could be drugs but I didn't know or want to think about it." He testified that if he had been told this, he probably would have made a note of it.

He also agreed that if Prevost made a statement in his presence that she knew or thought drugs were in the suitcase, he would have recorded it in his notebook. He emphasized, however, that it was more important for the lead investigators to make notes than for him to do so. [ 73 ] Nanner testified that he made paraphrased notes of some of Getzie's interview of Prevost but was not present for all of it. [ 74 ] Nanner did testify that he overheard Prevost say to Getzie in secondary that she knew something bad was in the bag but did not know what it was.

He does not recall the question that prompted this response from Prevost. Nanner testified that he also overheard Prevost tell Getzie in secondary that she met Jimmy at a bar and that Jimmy asked her whether she wanted to go on a trip to Australia and India. Prevost said Jimmy gave her $1,500 and that she would be paid a total of $5,000 for her services. She told Getzie that two previous smuggling attempts had been cancelled. She further told Getzie that Jimmy brought her the suitcases and that she packed the bags. He overheard Prevost tell Getzie she had no relationship with Tremblay.

She also told Getzie that she asked no questions - she was being paid for the trip and was desperate for the money. (

f) Cpl. Huang [ 75 ] Cpl. Huang testified that about 13,000 Ecstasy pills can be pressed from one kilogram of MDMA. In 2010, a single pill would sell on the street for as low as $10 and as high as $25. [ 76 ] He testified that MDMA sells in Australia for three to five times more than it does in Canada. He testified that MDMA can be exported in any number of ways, including in the false bottoms of duffel bags and suitcases. When suitcases are used to transport MDMA, human couriers are used.

Once in Australia, the powder is pressed into pills using other substances and a binding agent, dyed and distributed. [ 77 ] He testified that when the human couriers are used they are sometimes approached in bars and asked if they would like to go on a trip to transport a bag. He testified that travel arrangements are made by the person engaging the courier and are often done at the last minute to coincide with the availability of the product. The person engaging a courier will sometimes hire an overseer to ensure that the bags are checked in and that the courier makes his or her way through security.

He testified that couriers can be paid in one of two ways. Some are given a lump sum for their hotel, food and transportation arrangements and that what they come back with constitutes their payment. Others are given a specific amount and submit receipts after the trip is over. The difference between the advance and the amount of the receipts constitutes the courier's payment. He testified that the principal, not the courier, pays for the cost of travel to and from the foreign destination. A person at the receiving end will take custody of the suitcase.

He agreed in cross-examination that it is not typical for a courier to pay for a portion of the cost of the trip. He also agreed that it is not typical for couriers to be paid nothing before the day of travel. (

g) Michel Tremblay [ 78 ] Michel Tremblay is 46 years of age. He testified that he became addicted to painkillers, alcohol and marijuana following a motor vehicle accident six or seven years ago. Around the time of the alleged offence he was regularly drinking alcohol to the point of intoxication, using marijuana on a daily basis and using cocaine about once a week. He would purchase and use cocaine in bars. [ 79 ] He testified that prior to his arrest he had known Jimmy for about two years. Jimmy was a drug dealer.

Tremblay would buy cocaine from Jimmy once a week and did so on a fairly regular basis for two years leading up to the date of the alleged offence. [ 80 ] Tremblay testified that about two months before the day of travel he was approached by Jimmy in a bar and asked if he wanted to take a trip. He testified that he asked Jimmy where the trip would take him. Jimmy said out of the country but gave no specific destination. Jimmy also told him that he would be paid on his return. Tremblay asked Jimmy what the purpose of the trip was.

Jimmy told him that he would be moving $250,000 in cash from one foreign country to another. No currency was mentioned and Tremblay never asked about this. Tremblay testified he said to Jimmy that if the trip had anything to do with drugs he did not want to be involved. He testified that Jimmy assured him that no drugs were involved. Tremblay testified that he believed Jimmy, trusted him and had no reason to doubt his word. He testified that Jimmy always treated him fairly in their drug-related transactions and that he had never heard of Jimmy being involved in exporting narcotics from Canada.

Tremblay testified that no details were provided by Jimmy about where, from whom, or to whom the money was to be picked up and dropped off. [ 81 ] Tremblay testified that he next spoke to Jimmy at the bar about two weeks later. He testified that Jimmy reassured him that no drugs were involved. Jimmy told him that he would be away for a few weeks and that he would be paid $10,000 on his return. He

testified that this second meeting occurred about two weeks before the date of travel. [ 82 ] Tremblay testified that he had an additional conversation with Jimmy between the second meeting and the date of travel. He testified that Jimmy called and said he would be leaving but did not say when. It was at this point that Jimmy told him that he would be travelling with a companion. [ 83 ] Tremblay testified that after this call Jimmy approached him at the bar and said he would be introducing him to a woman. Jimmy told Tremblay to tell the woman that he had previously taken a trip to another country.

Jimmy then introduced him to Nadine Prevost. Tremblay testified that he did not know Prevost. As instructed, Tremblay testified that he told Prevost that he had previously taken a trip. He denied telling her he had swallowed narcotics in the past.

Tremblay testified that when Prevost asked him how the trip was, he told her it was fine and that was the end of the discussion. [ 84 ] Tremblay testified that he has no recollection of asking Jimmy any questions about Prevost's role as a trip companion. [ 85 ] Tremblay testified that on the day of the trip he got a call from Jimmy early in the afternoon and was told he would be leaving that day. Tremblay testified that he told Jimmy he did not have a suitcase, only a duffel bag. Jimmy told him that he had a couple of suitcases that he would supply for the trip.

Tremblay testified that he did not, at the time, think anything about Jimmy's offer to supply suitcases. [ 86 ] Tremblay testified that he did not know where he was going until he saw the itinerary for the trip when Prevost showed it to him later that day. Up until that time, he knew only that he was going to India because he had earlier accompanied Jimmy and Prevost to apply for a visa for travel in India. [ 87 ] Tremblay testified that Jimmy picked him up within a few hours of this call. Tremblay had a garbage bag with his clothes in it. Jimmy drove Tremblay to Prevost's house.

Prevost's roommate, John, was also present. Tremblay testified that he gave Prevost the garbage bag with his clothes in it. He testified that he did not pack his clothes into one of the suitcases. Tremblay testified that there was further discussion with Jimmy about transporting the money from one foreign country to another. Jimmy said someone would meet them in Australia and in the second country.

Tremblay testified that it was possible Prevost was not present for the discussion about moving money as it was his deal with Jimmy. [ 88 ] Despite previously testifying that he knew he was going to India because he had applied for a visa, Tremblay then testified that he did not know he was travelling to India until he saw the itinerary on the day of travel. [ 89 ] Tremblay testified that before leaving for the airport he consumed five beers, smoked two joints and was feeling under the influence. [ 90 ] He testified that after checking in, he and Prevost did not talk very much about the trip but that he had no real recollection of the nature of their conversation. [ 91 ] He testified that when he was stopped and questioned by Than and Baxter in the jetway, he was having a hard time staying in one spot due to the injuries he sustained in the motor vehicle accident six or seven years ago.

He does not remember trembling but testified that he was nervous about leaving his family and going to new and foreign destinations. [ 92 ] He testified that he did not know or suspect that he was moving drugs for Jimmy. [ 93 ] He testified that he lifted the luggage out of the trunk at the airport and put it on a cart for check-in.

He never thought the luggage was too heavy but testified that he was accustomed to physical work. [ 94 ] In examination in chief, Tremblay testified that that he never thought about the risks associated with moving money from one foreign country to another and never asked Jimmy why he was being engaged to do this. He testified that when Jimmy said he would supply the luggage for the trip, he never suspected that Jimmy might "double-cross" him. [ 95 ] In cross-examination, Tremblay testified that he knew nothing about Jimmy other than the fact that he is a drug dealer who sold cocaine out of the bar he frequented.

He agreed that he did not know Jimmy's last name and knew nothing about Jimmy's personal life. [ 96 ] Tremblay agreed that he raised with Jimmy his concern about not wanting to be involved in the transportation of drugs because Jimmy is a drug dealer. [ 97 ] He testified in cross-examination that he never asked Jimmy about travel arrangements and the two of them did not discuss who would pay for expenses associated with the trip. [ 98 ] In cross-examination, he testified that when Jimmy phoned him at his house prior to the second meeting, Jimmy said that he would be travelling with another person "for company".

Tremblay testified that he thought this was a good idea. He never asked Jimmy if he could bring someone he knew instead. [ 99 ] He testified in cross-examination that when he was introduced to Prevost by Jimmy at the bar, he realized that he had previously seen her in the pub, but had never spoken to her. [ 100 ] Tremblay testified that Jimmy did not tell him why he was to say to Prevost that he had gone on a previous trip and that it was fine. Tremblay testified that he did not know and did not ask Jimmy why he was instructed to tell this false story to Prevost. He testified that he never thought about it.

Tremblay testified that after he did this, Prevost asked him how the trip was. He said that it was fine and fun and Prevost asked no other questions. [ 101 ] Tremblay testified that when he was picked up by Prevost and Jimmy to apply for a visa, he only found out en route where they

were going. He testified that he did not pay for the visa application, that Prevost filled out the form for him and that he just signed it. He testified that he was under the influence of alcohol that day and tired. Despite not knowing where he was going when he got in the car, Tremblay testified that he had his passport with him. [ 102 ] He agreed in cross-examination that he knew as of the date of the visa application that he would be travelling to India and was excited about it.

He testified that he did not ask Jimmy about what he was supposed to do in India. [ 103 ] When asked about why he did not bring his own duffel bag on the trip rather than use the suitcases Jimmy supplied, Tremblay said that his duffel bag was not very big and that he might purchase something on the trip. He also testified that despite the fact that he knew he was going on a trip, he did not take any steps to buy a suitcase.

When asked in cross-examination if he was planning on using a garbage bag to transport his clothes if Jimmy had not offered the use of a suitcase, Tremblay said, "No" but testified that he did not know you could not travel on an aircraft with a garbage bag full of clothes. [ 104 ] Tremblay testified in cross-examination that when he left for the airport he still did not know that Australia was on the itinerary.

He gave this evidence despite testifying in chief that before they left for the airport Jimmy told him someone would meet them in Australia. [ 105 ] Tremblay testified that he told his wife about the trip and that it involved transporting money between countries. He did not tell her right away that a female companion was travelling with him. He testified that she was upset that he would be gone for three weeks. He told her that he was going because they needed the money. He testified he did not tell his wife he was going with a female companion until the day of the trip.

Later, Tremblay testified that when he told his wife about the trip he did not know that he would be gone for three weeks and could not recall what he told his wife about the length of the trip. He was also uncertain about whether he told his wife about the trip for the first time on the day of travel. [ 106 ] He testified that Jimmy picked him up in the afternoon on the day of travel and drove him to Prevost's house. He did not ask Jimmy if Jimmy brought a suitcase for him to use. He testified that the first time he saw the two black suitcases was in Prevost's house.

Jimmy did not say which suitcase or suitcases Tremblay was to use and Tremblay testified that he did not ask. He testified that Prevost packed his clothes. Despite the fact that he did not know Prevost very well at the time, he testified that he thought nothing of her packing his clothes even though he generally packs his own. He testified that he did not recall why he did not pack his own suitcase but denied that it was because he did not want to handle the bags. [ 107 ] Tremblay testified that Prevost's roommate, John, drove them to the airport.

He was shown the trip itinerary either at Prevost's house that afternoon or en route to the airport. He testified that Prevost checked in the bags at the airport and that she had all of the travel documents with her. [ 108 ] He testified that he left for the airport with no money for any travel expenses and was not sure where expense money for the trip would come from. He testified that Prevost had all the information on the trip and that he would be relying on her for money. He reiterated that there was no discussion with Jimmy about expense money and that he never asked Jimmy about this.

He testified that Jimmy never told him to keep track of travel expenses. He agreed in cross-examination that he could not afford to travel abroad on his own for three weeks. [ 109 ] In cross-examination, Tremblay testified that Jimmy assured him he was not transporting currency outside of Canada but was picking up currency in one foreign country for transportation to another. He agreed that when he was about to leave Canada, he did not know who he was meeting in Australia, where they were to meet or how the money would be picked up there.

Further, he did not know who he would be meeting in India or when, where, how or to whom the money was to be dropped off in India. He testified that he did not know if he would be travelling far within Australia or India and did not ask Jimmy for any details. [ 110 ] Tremblay testified in cross-examination that when he was at Prevost's house the day of the scheduled trip, Jimmy again gave him assurances that money, not drugs, was involved.

He is sure that Jimmy never told Prevost and him to act like a couple. [ 111 ] When it was put to him in cross-examination that he sought assurances from Jimmy that he would not be transporting drugs because he was concerned about it, Tremblay replied that he never gave it any thought but that Jimmy's assurances nevertheless made him feel better because he did not want to be transporting drugs. [ 112 ] Tremblay testified that he never asked why Jimmy did not hire someone in Australia to deliver the money to India and does not recall thinking about it at the time.

He realizes now that the arrangement makes no sense. When asked to agree with the proposition that sending someone from Australia to India with the money would be less costly, Tremblay replied, "I don't know". [ 113 ] When asked whether he thought that Jimmy was asking him to do something illegal, Tremblay said, "Yes, but in another country." When asked in cross-examination to agree with the proposition that he was getting paid for doing something illegal, Tremblay replied, "I didn't think about it like that. I don't recall how I thought at the time.

I didn't pay attention to it." Tremblay then testified that he was not aware at the time that what he was being asked to do (transporting money from one foreign country to another) was illegal, or at least that he was not sure. Tremblay also acknowledged in cross-examination that money can be transferred through banks. When asked why he thought Jimmy needed the money transported by a courier, Tremblay replied that he did not know and never asked or wondered. He said he did not think it was strange. He testified that it made him feel better that this was not happening in Canada.

When asked why, he responded that he did not know. [ 114 ] Despite his earlier testimony, when Tremblay was asked in cross-examination whether he thought Jimmy might be asking him to transport drugs when he was originally approached, Tremblay replied "No." When asked whether he had a concern that Jimmy might be moving drugs, Tremblay again replied "No." When asked to confirm that he was testifying that he had no concerns about being asked to move drugs, Tremblay replied that he may have had a bit of a concern about it.

Tremblay was then asked whether it crossed his mind when he was approached by a drug dealer and asked to be involved in the movement of something that the transaction might involve drugs. Tremblay then admitted that it "did cross my mind". When asked to agree that this crossed his mind on several occasions he responded, "I suppose it may have." He ultimately agreed that that is why he wanted assurances from Jimmy that drugs were not

involved. He testified that it did not occur to him that Jimmy might be lying to him about only currency being involved. [ 115 ] When asked about lying to Prevost in the bar about going on a previous trip, Tremblay initially testified that he did not think of it at the time as a lie but then agreed that it was a lie. He testified that it never occurred to him that because Jimmy was instructing him to lie to Prevost, Jimmy might also be lying to him about the purpose of the trip. (

h) Nadine Prevost [ 116 ] Nadine Prevost is a 33-year-old single mother to two teenage children, one of whom has special needs. She was unemployed on the date of the alleged offence and has been on income and social assistance for the past few years. [ 117 ] She testified that she had known Jimmy for about three years before the date of the offence. She met him in a bar through her ex-husband. She testified that they would sometimes "hang out" and drink together. Jimmy would sometimes come over to her place for dinner and bring gifts for her children. She testified that she would see Jimmy once or twice a week.

She had Jimmy's telephone number and had been to his house on one previous occasion to help him move. She testified that she did not know Jimmy's last name in 2010 but learned of it through others after these events. [ 118 ] At the time of the alleged offence, she was aware that Jimmy was a drug dealer and that he sold cocaine in two local bars. She admitted purchasing cocaine from Jimmy in the past but testified that she has not used it for a number of years. [ 119 ] Prevost testified that about a month before the scheduled travel date, Jimmy called and asked her to meet him at the bar.

At the bar, Jimmy asked Prevost if she would like to go on a trip to Australia as a "companion" to a person named "Mike" from the bar. She testified that she remembered seeing Mike [Tremblay] sitting with Jimmy in the bar but did not know him well. Prevost testified that she sought and received assurances that she would not be expected to provide sexual services on the trip. She testified that Jimmy told her Tremblay needed a companion for sightseeing. Jimmy also told her that he had family in India and suggested that she go there as well.

Jimmy said she would be leaving within a month. [ 120 ] In a phone call with Jimmy about a week after the first meeting she was provided some additional details about the length of the trip and told that she would be paid $5,000 for the trip. Prevost then agreed to go on the trip. [ 121 ] Prevost testified that while Jimmy's request that she go on a trip as a companion did not make sense to her, she was not surprised that Tremblay would be her companion. She never thought that she or Tremblay would be doing something illegal, nor did she see the risk of becoming involved in criminal activity.

She thought she was agreeing to go as a companion on the trip to hang out with Tremblay and testified that this did not surprise her despite the fact that she did not know him. She testified that she was never told by Jimmy or Tremblay that money was being moved in the trip. She was told only that Mike was meeting someone in Australia. She was not told about the India leg of the trip on the first meeting. She testified that she had no reason not to trust Jimmy, that he had never lied to her, and that he had spent time with her family.

Further, while she knew Jimmy to be a drug dealer she did not know that Jimmy was involved in the exportation of drugs. She testified that it never entered her mind that Jimmy would do anything that might cause her to be arrested. [ 122 ] Prevost testified that Jimmy assured her during a phone call between the first and second meetings that she would not be doing anything that would get her in trouble. In cross-examination, she testified that this was just a general statement and that she never specifically asked Jimmy if she might get in trouble because she never saw this as a possibility.

When asked in cross-examination if she wondered why Jimmy said this if she was just going on a vacation, Prevost replied, "No." She agreed that while it was a strange thing for him to say, it raised no concerns in her mind. [ 123 ] Prevost testified that she was introduced to Tremblay by Jimmy at a bar about two weeks prior to the offence date. They talked about the trip and the need to obtain visas for travel to India. She testified that Jimmy said he had a cousin in India and that they would have a place to stay there.

She testified that she asked no further questions about the India leg of the trip and that it did not seem unusual to her that she was going to India. Jimmy told her that the trip would be about three weeks in duration and that she would be contacted when things had been arranged. Prevost testified that she was not surprised that Jimmy was doing the arrangements and did not suspect any illegal activity. [ 124 ] Prevost testified that she had a conversation in the bar with Tremblay when they were alone. Tremblay told her he had gone on a previous trip and that it was fun.

Prevost testified that she asked him no details about the previous trip and it did not cross her mind to do so. In cross-examination, she testified that the bar was crowded and loud and that her attention was elsewhere. [ 125 ] Prevost testified that she had saved up $1,500 and that she gave this amount of money to Jimmy for the trip later that evening. She testified that although Jimmy had not asked her for this money, giving it to him was "the right thing to do". She testified that she had saved this amount of money over two years and that it represented all of her savings.

She said that Jimmy never told her that she did not have to pay for the trip and she assumed that $1,500 would be enough to cover her share of the cost. She also testified that she did not discuss with Tremblay whether he was also giving Jimmy his own money for the trip. [ 126 ] She told Jimmy in a subsequent conversation that she would be purchasing some luggage for the trip. Jimmy said that he would lend her a suitcase.

Prevost testified that Jimmy's offer to loan her a suitcase did not seem unusual to her. [ 127 ] Prevost testified that the day after the second meeting in the pub, Jimmy called her and said he would be picking her up to apply for a visa for travel to India. He told her to bring her passport. They then went to pick up Tremblay. [ 128 ] Prevost testified that nine days before the offence date she was called and told she would be leaving sometime the next morning. She was called after lunch the same day, told that the visas were not ready and that she would not be leaving.

The same thing happened seven days before the trip. [ 129 ] Prevost testified that she was told on April 8, 2010 that she would be leaving the following evening. Jimmy said he would drop

off Tremblay at her house the next day. She testified that she had no concerns about what she was doing. [ 130 ] She testified that Jimmy brought three suitcases to her house the next day and told her that the red suitcase was hers. The suitcases still had price tags on them. Prevost testified that there was nothing unusual to her about being provided with a suitcase on the day of travel. Jimmy told Tremblay to put his belongings in the black suitcases. Tremblay had a garbage bag full of clothes which she offered to fold for him. She put his clothes in one of the black suitcases.

She packed her own clothing in the red suitcase and some additional clothing that would not fit into the red suitcase into one of the black suitcases. She testified that her son put the red suitcase in the trunk of the car for her and that she never lifted it.

Jimmy gave her an envelope with travel documents, contact information for a Surrey-based travel agent and their passports. [ 131 ] Prevost testified that she understood the red suitcase was being loaned to her and that she had no intention of handing it over to someone in Australia. [ 132 ] She testified that Jimmy told her that when they were ready to leave Australia she was to call him and he would give her details about the India leg of the trip.

Later, she testified that she was to call Jimmy at the airport in India and he would let her know whether they would be picked up at the Delhi airport or would be taking a taxi to Jimmy's cousin's residence. Prevost testified that she asked no questions. [ 133 ] She testified that she did not overhear any conversation between Jimmy and Tremblay about moving money. [ 134 ] Prevost testified that on the day of the trip she was given $500 as an advance for spending money that would go towards the $5,000 she would be paid.

In the result, she expected to net $3,000 from the trip ($5,000, less the $1,500 she gave to Jimmy, less the $500 advance). [ 135 ] She testified in cross-examination that she had no discussion with Tremblay about how his expenses would be paid. She agreed that $500 would not be enough to cover her expenses for a three week trip abroad but added that Jimmy told her if she needed more money he would send it to her and it would come off the final amount.

She testified that she had no further discussions with Jimmy about how additional money would be sent to her while she was away. [ 136 ] Prevost testified that her roommate, John, drove them to the airport and that she filled out the bag tags because Tremblay had been drinking. [ 137 ] She testified that it never entered her mind nor did she suspect that Jimmy would deliver to her a suitcase with drugs hidden in it. [ 138 ] Prevost testified that she never told Getzie she had a lot in the top side of the red suitcase but only that she had a lot in the suitcase. [ 139 ] Prevost testified that after Getzie emptied both sides of the suitcase and was handling the top part, she asked Prevost more than once if there was a false bottom in the suitcase with drugs inside.

Prevost testified that she said, "No" and "No. Not that I am aware of." [ 140 ] Prevost testified that the first time she suspected drugs might be in the suitcase was when she was in secondary and Tremblay's bag was being x-rayed. She gave this evidence despite acknowledging that Getzie said to her in the jetway that she was being detained because of a suspicion that she was exporting illegal narcotics out of Canada. [ 141 ] Prevost testified that she told Getzie in the jetway that she had nothing in her luggage and did not, at that time, have the slightest suspicion that narcotics were in her suitcase.

She agreed that she said to Getzie, "I've done nothing wrong. I've never had anything like this happen to me" but testified that this remark was made later, not in the jetway. [ 142 ] She testified that while in secondary she was asked several times by Getzie whether she had drugs inside the suitcase and said "No" on each occasion. Getzie asked her if she was sure and she replied that she was. [ 143 ] She testified that the first "big moment" of realization for her was when Getzie was called over to look at the x-ray of Tremblay's suitcase and she saw the looks on the officers' faces.

It was then that she thought to herself, "Oh, God. What if there is something in mine?" [ 144 ] Prevost testified that she never told Getzie before the first x-ray of one of Tremblay's black bags that Jimmy had given her the suitcase and that the drugs in there were not hers. Rather, she testified that it was after the x-ray that she said to Getzie, " If drugs were in the suitcase I didn't put them there. Jimmy did" [emphasis added]. [ 145 ] Prevost denied ever saying to Getzie that she "turned a blind eye" to the contents of the suitcase or that she knew it was not "cricket".

She testified that she has no idea what those expressions mean and never uses them. She testified that she has no recollection of saying to Getzie that she did not know what was in the suitcase and that it might be drugs but that she did not want to think about it. [ 146 ] Prevost agreed that she told Getzie that Jimmy said nothing bad was going to happen to her.

She did not think this was an unusual statement and thought it was just a reference to the trip and not to any illegal activity. [ 147 ] After her red suitcase had been x-rayed, Prevost testified that Getzie informed her there were narcotics inside the suitcase. She told Getzie she had nothing to do with the drugs and that Jimmy put them there. She drew Getzie a map showing where Jimmy lived. She testified that Getzie told her to stop lying and that she did not believe her.

Prevost testified that she told Getzie she did not have any more information. [ 148 ] Prevost was directed to Nanner's evidence that between 2:10 and 2:21 a.m. he overheard her say to Getzie in secondary that she knew something bad was in the bag but did not know what it was. When asked what she was referring to, Prevost replied that she had a bad feeling about the bags as they were being x-rayed.

[149] Contrary to her earlier evidence in chief, Prevost testified later in her examination-in-chief and in cross-examination that it didnot seem strange to her that she would be paid by Jimmy to go on a trip as a companion to Tremblay and that it never occurred to her toask any questions about the arrangement.

She testified that she never wondered why Tremblay did not bring his wife or a friend on thetrip and did not think it strange that the two of them would be travelling together for three weeks. [150] In cross-examination, Prevost admitted telling Getzie in secondary that she purchased the red suitcase that day and also that shehad borrowed it from her friend Desiree. She acknowledged that these were lies and testified that she told them to Getzie because shewas scared. She denied not telling Getzie the truth at first because she knew it would sound suspicious.

Prevost also admitted that shelied to Getzie when she said in the jetway that she was going on a birthday trip. She denied not telling Getzie that she was travellingabroad as Tremblay's companion because it would arouse suspicion. Prevost also acknowledged in cross-examination that she lied toGetzie when she said she did not know what Jimmy did for work. She denied that she did not want to tell Getzie that Jimmy was a drugdealer because it would sound suspicious.

While she admitted telling Getzie that Jimmy was a drug dealer after she had been arrested,Prevost denied that she told Getzie this because drugs had, by then, been discovered. Prevost refused to agree with the suggestion put toher in cross-examination that if she did not suspect anything there would be no reason to tell these lies to Getzie. [151] Prevost acknowledged in cross-examination that she had to unzip the red suitcase and raise the top in order to pack.

She testifiedthat she did not notice anything unusual at all about the top side of the suitcase. [152] Prevost testified that she became concerned about what might be in her suitcase after Tremblay's suitcase had been x-rayed butmaintained that she had no idea what might be in her suitcase. When asked if she was thinking there might be drugs in her suitcase,Prevost replied that she did not know what to think. D.

Discussion [153] Before proceeding to analyze the evidence, I instruct myself in accordance with some of the foundational principles of lawapplicable to this case, several of which were referenced by counsel in their closing submissions. [154] First, the accused are entitled to separate verdicts based only on the evidence admissible against each of them. The out-of-courtstatements of one accused are, of course, not admissible against the other.

For example, Prevost's out-of-court statement to Getzie thatTremblay had bragged to her about swallowing narcotics on previous occasions is inadmissible against Tremblay and forms no part ofmy consideration of the case against him. If I accept that this statement was made to Getzie by Prevost and that it is true, it may,however, be probative of Prevost's state of mind at the time of the alleged offence. [155] Second, Tremblay was cross-examined by the Crown on his criminal record. A criminal record may be relevant to theassessment of a testifying accused's credibility.

It cannot, of course, be used to reason that the accused is a person of bad character andtherefore more likely to have committed the offence charged. In this case, I have determined that Mr. Tremblay's relatively minor anddated criminal record does not assist me in the assessment of his credibility and I have placed no reliance on it for any purpose inreaching my verdict in relation to him. [156] Third, Tremblay testified that he regularly purchased cocaine from Jimmy in a bar and that he was prepared to transport currencyfor Jimmy from one foreign country to another.

Obviously, this evidence was fundamental to Tremblay's defence that he did not haveknowledge (at least actual knowledge) of the presence of narcotics in the suitcases. This evidence cannot, of course, be used to concludethat because Mr. Tremblay was prepared to engage in the surreptitious transportation of money from one country to another, he is thesort of person more likely to have knowingly exported illicit drugs from Canada.

I have confined my consideration of this evidence tothe question of whether it raises a reasonable doubt about whether Tremblay had knowledge, actual or otherwise, of the presence of illicitdrugs in the suitcases checked in at Vancouver International Airport. [157] Fourth, Tremblay did not respond to some of the questions he was asked by Baxter and Than in the jetway. Tremblay was underno obligation to respond to those questions and his failure to do so proves nothing.

I have placed no reliance on Tremblay's decision notto respond to some of the questions put to him in the jetway in reaching my verdict in relation to him. [158] Fifth, knowledge need not be proved by direct evidence. Such a finding can be based on circumstantial evidence, but only if Iam satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts: R. v. Twohey, 2009 BCCA 428, 86 B.C.L.R. (4th) 2 at para. 13. [159] Finally, as both accused testified, I must instruct myself in accordance with the analytical framework set out in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742 at para. 28 ["D.W."] (

a) The Case Against Mr. Tremblay [160] In Tremblay's case, the first step of the D.W. analysis requires some modification. As counsel for Tremblay acknowledges,even if I accept his evidence in its entirety, there is a basis upon which this Court could come to the conclusion that Tremblay wasreckless in the sense that he was aware of the risk that the suitcases Jimmy was asking him to transport out of Canada contained illicitnarcotics but made the decision to participate in the scheme with knowledge of that risk.

I will return to recklessness as a basis forliability after considering whether the evidence establishes beyond a reasonable doubt that Tremblay had actual knowledge that thesuitcases contained illicit narcotics. [161] Mr. Tremblay testified that he did not know the suitcases contained illicit narcotics. Mr. Tremblay was not a credible witness. Ido not believe him on this point and I reject his evidence. [162] First, the premise which underlies the "innocent dupe" defence offered by the accused makes no sense.

A considerable quantityof drugs was involved and, in the context of this case, it makes no sense that Jimmy would trick either accused. The drugs had to bepassed over to those awaiting their receipt and, contrary to the testimony of both accused, it only stands to reason that for the scheme tosucceed the couriers must have had specific delivery instructions. Common sense would dictate that Jimmy would not simply leave

matters to chance. The version of events related by both accused begs the question as to what they were going to do if they were asked to hand over their suitcases to people they did not know in Australia. [ 163 ] More particularly, Tremblay's evidence that he thought he was picking up money in Australia and transporting it to India also makes no sense. Even Tremblay agreed, at least in retrospect, that it makes no sense that he would be engaged to fly to Australia for the purpose of picking up money in Australia and transporting it to India.

Tremblay's evidence that he did not know he was going to Australia until the day of travel, did not know who he was meeting in Australia, where to meet them or how he would take possession of the money in Australia for transport to India, and did not ask Jimmy for any details about these arrangements, is incredible. He acknowledged in cross-examination that he understood the money Jimmy wanted transported could have been transferred through financial institutions but testified that he never asked or wondered at the time why he was being asked to do this. His testimony on this point defies common sense.

I reject completely his version of events that he thought the purpose of the trip was to transport money on behalf of Jimmy from Australia to India. [ 164 ] Tremblay's evidence that he had no discussion with Jimmy about expense money for the trip and never asked him about this is also incredible given that, by his own admission, Tremblay could not afford to personally pay the cost of travel abroad for three weeks. [ 165 ] Tremblay's evidence is internally inconsistent.

He testified that when he was picked up by Jimmy and Prevost to apply for a visa for travel in India he had no advance knowledge of where he was going. Despite this, he testified that he had his passport with him. Tremblay was inconsistent on a number of other points. He testified at one point that he did not know he was going to India until he saw the trip itinerary the day of travel. He later testified that he knew he was going to India because he had previously applied for a visa to travel in India.

Tremblay also gave contradictory evidence about whether he thought he would be doing something illegal in moving money from one foreign country to another. At first, he said he knew that this would be contrary to the laws of a foreign country and then said he did not think about it, before finally settling on a version of events that he did not know this was illegal. [ 166 ] Perhaps most significantly, Tremblay testified in chief that he never thought about the risk he was courting by agreeing to participate in Jimmy's scheme and never had a concern that Jimmy might be asking him to transport drugs.

In cross-examination, he finally acknowledged the obvious - that it did cross his mind, that it was a "bit of a concern", and that this is what motivated him to repeatedly get assurances from Jimmy that he would not be transporting drugs, including on the afternoon of the trip at Prevost's residence. [ 167 ] Tremblay was also evasive and reluctant to admit the obvious. For example, he admitted telling Prevost that he had been on a previous trip when this, in fact, had not occurred. He testified, however, that he did not think of it as Jimmy asking him to lie to Prevost.

When asked if he knew that what he was telling Prevost was a lie, Tremblay replied, "Not at the time", before agreeing that he did know it was a lie. [ 168 ] Tremblay's explanation for not taking his own duffel bag with him on the trip (it was small and he might buy things to bring home with him) is incredible. [ 169 ] Tremblay's testimony that he thought it was a good idea to have company on the trip and never asked Jimmy any questions about this is fanciful. His evidence that he never thought about why Jimmy instructed him to tell a false story to Prevost about going on an earlier trip is equally fanciful.

So, too, is his testimony that having done so, Prevost never asked him any questions about the previous trip. Again, his evidence on this point simply defies common sense. [ 170 ] Tremblay's evidence that he thought nothing of Prevost packing his clothes even though he did not know her is also unbelievable and I reject it. [ 171 ] Tremblay admitted that he knew nothing about Jimmy except that he was a drug dealer.

His evidence that he never really thought about Jimmy's offer to supply suitcases for the trip and so trusted him that he never suspected Jimmy might "double-cross" him also defies belief. [ 172 ] For many of the same reasons, the testimony of Mr. Tremblay does not leave me with a reasonable doubt. [ 173 ] I turn next to consider whether, on the basis of the evidence I accept, I am satisfied beyond a reasonable doubt that Tremblay had actual knowledge that the suitcases contained illicit narcotics. I am so satisfied for the following reasons: • Tremblay knew that Jimmy was a dedicated drug dealer.

Indeed, that is all Tremblay knew about him; • Tremblay was approached by his drug dealer in a bar and offered $10,000 for his services; • He was supplied by his drug dealer with suitcases to use on the trip; • Tremblay told Than that he packed the suitcases himself and that he was aware of the contents of the bags.

I accept Than's evidence that this was said by Tremblay; • Tremblay handled those suitcases and, given the relatively few articles that were packed inside, particularly in one of the two black suitcases, I am satisfied that he knew that the weight of the suitcases was not entirely attributable to clothing. Both Baxter and Than noticed this abnormality without any difficulty; • Arrangements for the trip were not made by him but by his drug dealer; • Those arrangements were made and communicated to him at the last minute; • I accept Than's and Baxter's evidence about what Tremblay said to them in the jetway.

Tremblay referred to Prevost as his "girlfriend". That was a lie. He lied to Than about being able to get two weeks off work. He lied about when the tickets had been given

to him. He lied about just wanting to get away to relax. He lied when he said he did not know and had never personally met theindividual who purchased the tickets. The fact that Tremblay told these lies to the officers was not contested at trial. No explanation,inconsistent with an inference of guilt, was offered for them. I am satisfied that Tremblay knew these statements to be false when hemade them. It is open to me to infer the existence of a culpable state of mind from the making of deliberately false statements: R v.Jones (2006), (ON CA), 211 C.C.C. (3d) 4 (Ont. C.A.) at para. 6.

In this case, and in the context of the evidence asa whole, I have no difficulty drawing the inference that Tremblay lied to divert suspicion from himself and to avoid a search of hisluggage because he knew that illicit drugs were secreted inside. • I recognize that considerable care must be exercised in drawing inferences from evidence of demeanour. For this reason, I wouldbe reluctant to draw anything from this evidence if it stood alone.

Having said that, Tremblay's nervous demeanour, when taken in thecontext of the evidence as a whole, also supports the inference that he knew illicit drugs were in his suitcases. [174] In coming to this conclusion, I have had regard to the evidence which suggests that Tremblay was using both drugs and alcoholaround the time of the offence and had consumed some five beers and two joints shortly before attempting to board the aircraft. Mr. Tremblay did not suggest in his evidence that this interfered with his ability to know or appreciate what was contained in thesuitcases. I am satisfied that Mr.

Tremblay knew well in advance of the departure date what he would be doing. [175] Taken as a whole, the evidence gives rise to an irresistible inference that Tremblay knew the suitcases contained illicit narcotics. I am satisfied that this is the only reasonable inference to be drawn from the totality of the evidence. [176] While it is unnecessary for me to go further, I wish to record that had I not been satisfied beyond a reasonable doubt thatTremblay knew drugs were secreted inside the suitcases, I would have convicted on the basis that Tremblay was at least reckless as to thecontents of the suitcases.

Indeed, his counsel acknowledged that is it open to the Court to convict on this basis. The concession wasnecessary and appropriate. Tremblay eventually admitted in cross-examination that he was concerned about the presence of drugs in thesuitcases and repeatedly sought assurances from Jimmy, including on the afternoon of the date of the offence when the suitcases weredelivered, that he would not be transporting narcotics. At minimum, the evidence establishes beyond a reasonable doubt that theTremblay was aware of the risk that he was being asked to export illicit drugs and proceeded to take the chance.

I am satisfied that hisconsumption of intoxicants did not impair his ability to appreciate that risk. (

b) The Case Against Ms. Prevost [177] Ms. Prevost was not a credible witness. I do not believe the evidence she gave and would reject it entirely in so far as it concernsher knowledge of the circumstances surrounding the offence. [178] Again, the "innocent dupe" defence offered by Ms. Prevost makes no sense. As noted earlier, for the scheme to succeed, theindividuals transporting the narcotics would have to know to whom they were to make the delivery. Ms. Prevost testified that Jimmy hadloaned the red suitcase to her and she had no intention of handing it over to anyone in Australia. But, as in Mr.

Tremblay's case, Icertainly do not rest my rejection of her evidence on this point. [179] Ms. Prevost's evidence that she voluntarily gave Jimmy $1,500 despite the fact that he did not ask for a contribution from her isincredible. Ms. Prevost was living on income and social assistance at the time and supporting two children as a single mother. Shetestified that it took her two years to save this money and it represented the entirety of her savings. That she would voluntarily turn overthe entirety of her savings to Jimmy, the person that was seeking to

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