2010 QCCA 2359, 2010 QCCA 2359

R. c. Cedeno 2010 QCCA 2359 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004494-090 (500-73-002672-067) SEQ. ACC. 010/038) DATE: December 20, 2010 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JACQUES DUFRESNE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

NANCY CEDENO RESPONDENT – Accused JUDGMENT [ 1 ] THE COURT: On appeal from a verdict of the Court of Quebec, Criminal and Penal Division, District of Montreal (The Honourable Claude Millette) rendered on September 30, 2009, that acquitted the respondent on three counts of conspiracy to import cocaine and possession for the purpose of trafficking (section 465 Cr. C. and sections 5 and 6 of the Controlled Drug and Substances Act ) (counts 1, 7 and 9) and four counts of having acted for the benefit of a criminal organization (section 467.12 Cr.

C .) (counts 2, 4, 8, and 10); [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Chamberland J.A., with which Rochette and Dufresne JJ.A. agree: [ 4 ] ALLOWS the appeal; [ 5 ] ORDERS a new trial on the counts of conspiracy alone, to wit: counts 1, 7 and 9. JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JACQUES DUFRESNE, J.A. Mtre Yvan Poulin Mtre Alexandre Dalmau Counsel for the Director of Public Prosecutions of Canada For the appellant Mtre Robert Bellefeuille Chaiken, Bellefeuille For the respondent Date of hearing: November 3, 2010

REASONS OF CHAMBERLAND J.A. [ 6 ] The Crown appeals the verdict of acquittal on a series of counts, with the exception of one, in a file concerning the importation of cocaine involving a criminal organization. [ 7 ] It must be determined whether the trial judge erred in refusing to apply the doctrine of wilful blindness in a matter involving conspiracy, in giving a restrictive

interpretation of the notion of criminal organization, in failing to provide reasons for his conclusion regarding the credibility of the respondent and finally, in prohibiting the appellant from adducing evidence of the respondent's bad character after she had put her good character in issue. [ 8 ] This appeal was heard at the same time as two others, one dealing with the respondent's sentence (500-10-004680-102) and the other, with the acquittal on a charge of criminal gang activity against Julie Châteurneuf-Fleury (500-10-004495-097). [ 9 ] I will now provide a general

summary of the facts. The facts [ 10 ] From July 2005 to May 2006, the time relevant to the charges, Nancy Cedeno was a customs officer for Canada Border Services Agency, working at Pierre Elliott Trudeau Airport in Montreal. [ 11 ] She provided Omar Riahi with pre-stamped customs declaration forms as well as the daily codes that enable the carriers of these forms to avoid a search of their luggage upon arrival in Canada. [ 12 ] Ms. Cedeno had met Omar Riahi a few years earlier when he was a student working for customs. At the time of the events, he was a member of the Canadian Forces Military Police.

After returning from a trip to the Maritimes, it was he who approached the respondent and convinced her to become his accomplice. [ 13 ] Riahi and his group planned to use pre-stamped forms to smuggle narcotics into the country from Haiti and Venezuela. [ 14 ] On May 8, 2006, Ms. Cedeno was arrested for the first time and questioned. After only a few questions, she admitted her role in the scheme.

Once her interrogation was complete, she was released. [ 15 ] On November 22, 2006, following a police raid as part of Operation Colisée, she was arrested for the second time. [ 16 ] A number of charges of conspiracy to import and traffic in cocaine, corruption and criminal gang activity were brought against the respondent: [ translation ] 1.

Between January 1, 2005 and May 10, 2006, at Montreal, District of Montreal, at Laval, District of Laval, and elsewhere in the province of Quebec, elsewhere in Canada, in Colombia, in Venezuela, in the Dominican Republic and in Haiti, Nancy CEDENO and Omar RIAHI did illegally conspire with each other and with Daniel ALFRED, Jean-Marie Fritz BALMIR, Julie CHATEAUNEUF- FLEURY, Antonio DELL'ERMO, Eddy DORSICA, Ralph DUVAL, Micheal HANY, Celia HENRIQUEZ-MUJICA, Ray KANHO, Sébastien PIERRE-LOUIS, Reacarld JEAN-MICHEL, Giuseppe TORRE, a person by the name of Carmélite, a person by the name of Gogo (Oscar), a person by the name of Jérôme (Commandant), a person by the name of Juan, a person by the name of Kiki, a person by the name of Nancy, a person by the name of Pete, and other persons as yet unknown, the said conspiracy having the following purposes: (1) importation; and (2) possession of cocaine for the purpose of trafficking, thereby committing the indictable offence pursuant to

section 465 of the Criminal Code , read with sections 5 and 6 of the Controlled Drug and Substances Act ; 2.

Between January 1, 2005, and May 10, 2006, at Montreal, District of Montreal, at Laval, District of Laval, and elsewhere in the province of Quebec, elsewhere in Canada, in Colombia, in Venezuela, in the Dominican Republic and in Haiti, Nancy CEDENO and Omar RIAHI did illegally commit an indictable offence, to wit: conspiracy to import and possess cocaine for the purpose of trafficking, at the benefit of, under the direction of or in association with a criminal organization, thereby committing the indictable offence pursuant to subsection 467.12(1) of the Criminal Code , read with sections 5 and 6 of the Controlled Drugs and Substances Act and

section 465 of the Criminal Code .

3. Between July of 2005 and May of 2006, at Montreal, District of Montreal, at Laval, District of Laval, and elsewhere in the province of Quebec, being a public officer in the employment of Canada Border Services Agency, Nancy CEDENO did corruptly accept, obtain or agree to accept money for herself, with intent to facilitate the commission of an offence, thereby committing the indictable offence pursuant to subsection 120 (

a) of the Criminal Code . 4. Between July of 2005 and May of 2006, at Montreal, District of Montreal, at Laval, Distrrict of Laval, and elsewhere in the province of Quebec, Nancy CEDENO did unlawfully commit an indictable offence pursuant to the Criminal Code , to wit: corruption for the benefit of, under the direction of, or in association with a criminal organization, thereby committing the indictable offence pursuant to subsection 467.12(1) of the Criminal Code , read with subsection 120 (

a) of the Criminal Code . 7.

Between January of 2005 and October of 2005, at Montreal, District of Montreal, at Laval, District of Laval, and elsewhere in the province of Quebec, elsewhere in Canada and in Haiti, Jean-Marie Fritz BALMIR, Nancy CEDENO and Omar RIAHI did illegally conspire with each other and with Daniel ALFRED, Antonio DELL'ERMO, Eddy DORSICA, Ralph DUVAL, Reacarld JEAN- MICHEL, Ray KANHO, Sébastien PIERRE-LOUIS, Giuseppe TORRE, a person by the name of Carmélite, a person by the name of Jérôme (Commandant), a person by the name of Nancy, a person by the name of Pete, and other persons as yet unknown, the said conspiracy having the following purposes: (1) the importation; and (2) possession of cocaine for the purpose of trafficking, thereby committing the indictable offence pursuant to

section 465 of the Criminal Code , read with sections 5 and 6 of the Controlled Drug and Substances Act ; 8. Between January 1, 2005, and May 10, 2006, at Montreal, District of Montreal, at Laval, District of Laval, and elsewhere in the province of Quebec, elsewhere in Canada, and in Haiti, Jean-Marie Fritz BALMIR, Nancy CEDENO and Omar RIAHI did illegally commit an indictable offence, to wit: conspiracy to import and possess cocaine for the purpose of trafficking, at the benefit of, under the direction of or in association with a criminal organization, thereby committing the indictable offence pursuant to

section 467.12(1) of the Criminal Code , read with sections 5 and 6 of the Controlled Drugs and Substances Act and

section 465 of the Criminal Code. 9. Between July of 2005 and May of 2006, at Montreal, District of Montreal, at Laval, District of Laval, and elsewhere in the province of Quebec, elsewhere in Canada, in Colombia, in Venezuela and in the Dominican Republic, Nancy CEDENO, Julie CHÂTEAUNEUF- FLEURY and Omar RIAHI did unlawfully conspire with each other and with Celia HENRIQUEZ-MUJICA, Ray KANHO, Sébastien PIERRE-LOUIS, Giuseppe TORRE, a person by the name of Gogo (Oscar) and other persons yet unknown, the said conspiracy having the following purposes: (1) the importation; and (2) possession of cocaine for the purposes of trafficking, thereby committing the indictable offence pursuant to

section 465 of the Criminal Code , read with sections 5 and 6 of the Controlled Drug and Substances Act ; 10.

(2) Between January 1, 2005, and May 10, 2006, at Montreal, District of Montreal, at Laval, District of Laval, and elsewhere in the province of Quebec, elsewhere in Canada, in Colombia, in Venezuela, and in the Dominican Republic, Nancy CEDENO, Julie CHATEAUNEUF-FLEURY and Omar RIAHI did illegally commit an indictable offence, to wit: conspiracy to import and possess cocaine for the purpose of trafficking, at the benefit of, under the direction of or in association with a criminal organization, thereby committing the indictable offence pursuant to

section 467.12(1) of the Criminal Code , read with sections 5 and 6 of the Controlled Drugs and Substances Act and

section 465 of the Criminal Code .

[ 17 ] At the end of her trial, the respondent was convicted of corruption (count 3) but acquitted of all of the other charges. The judgment a quo [ 18 ] The trial judge began with a

summary of the facts relevant to the two importations of narcotics in which the respondent was involved: • the importation of nine kilos of cocaine from Haiti in September of 2005 (Eddy Dorsica never boarded the airplane because he was arrested at the Port-au-Pince airport in possession of the narcotics that he was supposed to bring back into Canada); • the importation of cocaine from Venezuela in April of 2006 (Julie Châteauneuf-Fleury returned to the country on April 17, 2006, but without the narcotics, which were seized in Venezuela). [ 19 ] The trial judge then summarized the legal principles applicable to the notions of conspiracy and the commission of indictable offences for the benefit of, under the direction of or in association with a criminal organization. [ 20 ] With regard to the conspiracy, he considered the question of mens rea in light of Ms.

Cedeno's testimony about her awareness of the other members of the conspiracy and her intention to take

part in an agreement that was much larger than she was aware. The trial judge first observed that it was not necessary for the accused to know the identity of all of the members of the conspiracy or all of the details of the plan.

He insisted, however, that the accused's wrongful intent must be proved; she must have been generally aware of the plan and have had the intention to join the members of the conspiracy and participate with them in achieving the illegal purpose. [ 21 ] The charges against the respondent (counts 1, 7 and 9) state that the purpose of the conspiracy was the importation and possession of cocaine for the purpose of trafficking.

Therefore, the trial judge concluded that the Crown had to prove that the respondent was aware of the purpose of the conspiracy (i.e., the importation of cocaine) but that this proof could not be made by arguing her wilful blindness. [ 22 ] Regarding the indictable offences committed for the benefit of, at the direction of or in association with a criminal organization, the trial judge again insisted on the need to prove the accused's wrongful intent.

She needed to have been aware that the indictable offence she was committing or in which she was participating was for the benefit of, at the direction of or in association with a criminal organization. [ 23 ] The trial judge then proceeded with an analysis of the various charges brought against the accused. [ 24 ] Regarding the corruption charge (count 3), he found that the respondent was a public officer (within the meaning of

section 2 Cr. C .) and that she gave Omar Riahi pre-stamped customs declaration forms (on five occasions) in exchange for financial consideration. She is therefore guilty on this count. [ 25 ] Regarding the charges of conspiracy to import cocaine and possession for the purpose of trafficking (counts 1, 7 and 9), the trial judge concluded that the respondent’s participation in a conspiracy with Omar Riahi and another person (Ray Kanho) of whose identity she was nonetheless unaware had been proved beyond a reasonable doubt.

He found, however, that there was nothing in the evidence that [ translation ] "formally demonstrates" that the respondent was aware of the purpose of the conspiracy. He reiterated that the doctrine of wilful blindness does not apply to prove the accused's knowledge of the objective of the conspiracy. [ 26 ] Regarding the charges of criminal gang activity (counts 2, 4, 8 and 10), the judge recognized that the crimes of conspiracy and corruption against the respondent were orchestrated by a criminal organization masterminded by a person by the name of Giuseppe Torre.

He found, however, that nothing in the evidence supported the conclusion that Ms. Cedeno had [ translation ] "knowingly" given the pre-stamped forms [ translation ] "with the intention" that they be used by this criminal organization.

He therefore entertained a doubt as to her intention to act on behalf of a criminal organization. [ 27 ] Regarding the possibility that the respondent acted for a [ translation ] "limited criminal organization" in committing the offence of corruption, the trial judge noted that she knowingly did business with two persons: directly with Omar Riahi and indirectly with Ray Kanho, although she did not know the latter’s identity. He found that the definition of "criminal organization" and the wording of

section 467.12 Cr. C. necessarily require the existence of a group of three persons in addition to the person charged. [ 28 ] He therefore found the respondent guilty of corruption but acquitted her of all the other charges of conspiracy and criminal gang activity. The issues [ 29 ] The Crown's appeal raises four main questions and, depending on the answers to these questions, a few incidental but important ones: 1. Did the trial judge err in law in ruling that the doctrine of wilful blindness does not apply to conspiracy? 2. Did the trial judge err in his

interpretation of the provisions concerning criminal organizations in imposing on the Crown a heavier burden than that intended by the legislature? 3. Did the trial judge err in failing to provide adequate reasons for his conclusions on the essential and critical issue in dispute, namely, the credibility of the respondent? 4. Did the trial judge err in prohibiting the Crown from cross-examining the respondent on facts in an attempt to demonstrate her bad character (specifically her drug consumption) when she had herself put her good reputation in issue? 1. Conspiracy and wilful blindness

[30] The trial judge concluded that the Crown was required to prove that the respondent was aware of the purpose of theconspiracy (in the present case, the importation of cocaine) but that it could not do so by arguing her wilful blindness.[1] [31] With respect for the trial judge, I find that this is an error. [32] In R. v.

Briscoe, [2010] 1 S.C.R. 411, 2010 SCC 13, the Supreme Court, per Charron J., stated that wilful blindness of a factmay substitute for actual knowledge of that fact whenever knowledge is a component of the mens rea (at para. 21): Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge wheneverknowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion isaroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.

SeeSansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570 and R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55.As Sopinka J. stated so succinctly in Jorgensen (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?" (Emphasis added.) [33] Briscoe was not accused of conspiracy but of kidnapping, aggravated sexual assault, and first degree murder. He had driven agroup of persons onto an isolated golf course in his car.

He had then been present during the rape and murder of an adolescent girlwithout intervening or saying anything. The evidence established that he deliberately chose not to inform himself about the intentions ofhis passengers and what they were doing with the girl. [34] Briscoe, rendered after the judgment under appeal, provides a definitive answer to the first question raised by the appellantwithout having to say much more about it. [35] Nevertheless, the appellant asks us to apply subparagraph (4)(b)(ii) of

section 686 Cr. C., to enter a verdict of guilt in respectof each of the three charges of conspiracy and then to impose the appropriate sentence. The appellant argues that the respondent testifiedat trial and that her version, even if accepted as fact, is clearly tantamount to wilful blindness with regard to the purpose of theconspiracy.

It would therefore be pointless in the circumstances to send the case back to trial. [36] The respondent, for her part, maintains that her state of mind was, as the evidence reveals, consistent with her ignorance of thetrue purpose of the conspiracy and that the trial judge's error therefore had no consequence on the outcome of the conspiracy charges. [37] In my view, it would be no more appropriate or prudent to enter a guilty verdict on the conspiracy charges than it would touphold the acquittals despite the judge's error concerning the application of the doctrine of wilful blindness with respect to therespondent's knowledge of the purpose of the conspiracy. [38] Indeed, it is true that many of the respondent's statements both upon her first arrest on May 8, 2006, and at trial support theconclusion that she was closing her eyes to the purpose of the conspiracy because she knew or strongly suspected that if she were to openthem, she would discover that the conspiracy was indeed to import narcotics.

Is that not what was in the judge's mind when he wrote, atpara. 44: [translation] "It is undeniable that it could be concluded, in light of the circumstances as whole, the veiled language used in thetelephone conversations, and Omar Riahi's attitude, that she ought to have been aware of the purpose of the conspiracy"[2] (emphasisadded)?

The fact remains, however, that he did not make a definitive finding on the issue; rather, he related various incidents that led himto conclude that there remained [translation] "a strong doubt" in his mind as to the accused's knowledge of the purpose of the conspiracy.The application of the doctrine of wilful blindness is closely connected with the assessment of the evidence and intimately connectedwith the assessment of the credibility of the accused; in my view, it is more prudent to leave these two issues to the trial court todetermine. 2.

Criminal organization [39] The appellant maintains that the trial judge erred in concluding that the definition of "criminal organization" and the wordingof

section 467.12 Cr. C. requires the existence of a group of three persons in addition to the accused. [40]

Section 467.1 defines what must be understood by "criminal organization". 467.1(1) In this Act, ... “criminal organization” means a group, however organized, that (

a) is composed of three or more persons inside or outside Canada; and (

b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed,would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of thepersons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence.[3] [41] Sections 467.11, 467.12 and 467.13 Cr.

C. define the offences of criminal gang activity[4] in increasing degrees ofseriousness: • participation in the activities of a criminal organization, 467.11 Cr. C.; • commission of an offence for the benefit of, at the direction of or in association with a criminal organization, 467.12 Cr. C.;

• instruction of a person to commit an offence for the benefit of, at the direction of or in association with a criminal organization, 467.13 Cr. C .; [ 42 ] In this case, counts 2, 4, 8 and 10 concern

section 467.12 Cr. C .: 467.12

(1) Every one who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for life.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization. [ 43 ] The offences related to organized crime carry harsh sentences (maximum fourteen years' imprisonment under

section 467.12 Cr. C .) that are to be served consecutively to any other sentence, not to mention the social stigma associated with having collaborated in some way with a criminal organization. In my opinion, therefore, sections 467.1, 467.11, 467.12, 467.13 and 467.2 Cr. C . must be interpreted with restraint and caution, in order to prevent these provisions, whose legitimacy is not in issue here, from infringing on those values dear to Canadian society and from having unintended effects that would create collateral victims to the State's war on organized crime. [ 44 ] The appellant argues that the offence described in

section 467.12 Cr. C . targets two situations: one in which the accused is a member of the criminal organization for the benefit of which the offence is committed, and one in which the accused is not a member but commits the indictable offence for the benefit of the organization. [ 45 ] I agree with this submission. [ 46 ] In the first situation, the "criminal organization" could be comprised of only the accused and two other persons, and the Crown would then be required to prove the other elements of the definition.

In the second, the "criminal organization" would be comprised of at least three persons other than the accused. [ 47 ] Here, the appellant argues that the respondent, along with Omar Riahi and Ray Kanho, was part of the criminal organization for the benefit of which she committed the indictable offences of corruption and conspiracy. [ 48 ] According to this argument, the trial judge was wrong to insist upon evidence of a group of three persons in addition to the accused. [ 49 ] I agree with the appellant.

For two reasons, however, I am of the opinion that the trial judge's error is inconsequential here. [ 50 ] First, it is not sufficient for the accused to have been one of the three persons required under the definition of "criminal organization"; rather, she must have formed part of the group or "organization". In this case, the judge concluded that Riahi and Kanho had manipulated the respondent. She did not form part of the group. She was merely used by the others to achieve their ends.

Moreover, the crude words they used when referring to the respondent indicate the extent to which she was not a part of the "organization" with Riahi and Kanho as the prosecution argues. In the context of offences related to the war on organized crime, it is in my view an error to find that the respondent was the third member of the "criminal organization". Such a finding would risk extending the scope of the offence created by

section 467.12 Cr. C . too far and in fact unjustly impose a double sanction on the respondent. [ 51 ] Second, the crime described in

section 467.12 Cr. C. requires proof of the accused's wrongful intent to act for the benefit of a criminal organization. In this respect, the trial judge found that there existed a reasonable doubt as to the respondent's intention to act for the benefit of the criminal organization to which Riahi and Kanho belonged. It appears to me that the same conclusion must be drawn with regard to the limited criminal organization of which the respondent may have formed a part with Riahi and Kanho.

It seems logical to conclude that there was a reasonable doubt as to her intention to act for the benefit of a criminal organization to which she belonged, when she was nothing more than a pawn, manipulated by her two accomplices. 3.

The credibility of the respondent [ 52 ] Judges have the duty and the obligation to provide reasons for their conclusions on the issues in dispute in order to explain the decision to the parties, to provide public accountability and to permit meaningful appellate review . [ 53 ] The appellant criticizes the trial judge for having failed to remark upon several contradictions in the respondent's testimony, particularly those concerning her knowledge of the purpose of the conspiracy. [ 54 ] In my view, this criticism is groundless. [ 55 ] The contradictions between the respondent's statements before trial and those made during the trial are not flagrant.

She did not deny the main element of the offences, namely, the provision of pre-stamped customs declaration forms. The contradictions raised by the appellant address formal concerns more than the substance of the answers provided by the respondent. [ 56 ] In R. v.

R.E.M ., [2008] 3 S.C.R. 3, 2008 SCC 51 , at paragraph 57 , the Supreme Court summarized the role of appellate courts when considering the sufficiency of grounds relating to credibility: Appellate courts must ask themselves the critical question set out in Sheppard : Do the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review? To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction.

Essential findings of credibility must have been made, and critical issues of law must have been resolved. If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo ), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law.

[57] The judgment in appeal reveals that the trial judge had a good understanding of the issues in dispute, that he took into accountthe evidence as a whole, and that he ultimately arrived at a decision. [58] With respect to the conspiracy charges, the judge's task consisted essentially in determining whether the accused knew aboutthe purpose of the conspiracy and whether she had wrongful intent.

Admittedly he could have provided a better explanation for why heaccepted the respondent's version, but it is easy enough to deduce from his reasons that he based his decision on her testimony at trial, herlimited (albeit vital) role in the plan, as well as the contemptuous attitude of the other conspirators toward her and their secretivebehaviour. [59] In my view, despite its flaws, the judgment in appeal is sufficient to permit a meaningful appellate review, even on the factualissues relating to the reliability and credibiilty of the respondent's testimony. 4.

The cross-examination by the Crown and the respondent's reputation [60] In response to certain questions concerning the reasons for the respondent's urgent wish, in 2005, to to speak to Riahiregarding the nature of the goods they were going to smuggle into the country, the respondent explained that she was beginning[translation] "to have suspicions" and that it had become imperative that she [translation] "check as quickly as possible". She added thatshe had two children and that she was very proud of the role she had played as a customs officer in drug seizures.

Immediately, theCrown prosecutor sought permission from the judge to ask her about her drug consumption, arguing that the respondent had tried todemonstrate her good character by referring to drug seizures and her desire to protect her children. [61] The trial judge refused, explaining as follows: [translation] I will allow the objection. And what you are submitting to me are arguments that could be used in a court case where it can be decided,specifically before a jury, that to ask questions about certain elements of the court file or about the court file as a whole could be tooprejudicial or too damaging.

But in this case, you want to cross-examine her about offences she may or may not have committed and withwhich she has not even been charged. I will not allow it. [5] [62] The appellant maintains that this decision is erroneous and that, because the respondent put her own good character in issue,the judge should have permitted the prosecution to present evidence of her bad character. [63] As a general rule, the Crown cannot introduce evidence of an accused's bad character unless the accused has already put hisgood character in issue.

The determination of whether the accused attempted to adduce evidence of good character through testimony, asin the present case, can sometimes prove difficult. An accused may deny guilt or repudiate allegations without being accused of trying toestablish his good character. The accused may not, however, under the pretext of contradicting the allegations, state or suggest that hecould not have committed the offence charged because he is an honest person since, in so doing, he would be bringing his own characterinto play (R. v.

McNamara (no. 1) (1981) (ON CA), 56 C.C.C. (2d) 193 at 346, appeal to the S.C.C. refused on thispoint, (SCC), 56 C.C.C. (2d) 576). [64] In this case it is not clear to me that the respondent, through her responses to the Crown prosecutor's questions, intended to puther character in issue.

After admitting that she provided pre-stamped customs declaration forms, she tried to explain why it was importantto her in 2005 to verify the exact nature of the goods that Riahi and his associate Kahno wanted to smuggle into Canada. [65] In any event, even if the respondent did put her character in issue, there is no dispute that the trial judge has full discretion toprohibit cross-examination on elements of bad behaviour that are only tenuously connected with the facts at issue.

In this case, we mayindeed wonder whether there is any connection at all between whether the respondent consumed drugs in the past (without ever havingbeen charged for it) and the fact that she is proud to have taken

part in a narcotics seizure in her role as a customs officer. [66] Given this context, in my view, the judge did not err in refusing to allow the cross-examination of the respondent on heralleged drug consumption. [67] For all of these reasons, I would allow the appeal and order a new trial only on the charges of conspiracy, to wit: counts 1, 7and 9. JACQUES CHAMBERLAND, J.A.