R. v. Rathod, 2021 QCCA 396

Official English Translation of the Judgment of the Court Narinesingh c. R. 2021 QCCA 396COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OF MONTREAL No.: 500-10-006487-175(500-73-004313-157) DATE: March 12, 2021 CORAM: THE HONOURABLEFRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. JACQUES J. LEVESQUE, J.A. MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A. SERENA KHAVITA NARINESINGHAPPELLANT — Accusedv.

HER MAJESTY THE QUEENRESPONDENT – Prosecutor JUDGMENT [1] After returning from Africa, the appellant, Serena Khavita Narinesingh, was arrested at the Pierre-Elliot-Trudeau internationalairport on July 18, 2015 when customs officers found 7.7 kg of heroin hidden in her suitcases. Neither the nature of the drug nor itslocation in the suitcases are contested. Moreover, the appellant gave several statements to the police. Having been in custody since herarrest, she decided, after consulting with counsel, to cooperate with the police. A long out-of-court statement was produced at trial.

Theappellant testified and recanted in part. [2] The appeal presents a particular difficulty given the state of the jurisprudence. The Crown filed an indictment comprising onecount of importing and one count of possession for the purpose of trafficking a drug listed in

Schedule I of the Controlled Drugs andSubstances Act, S.C. 1996, c. 19, specifically heroin, as opposed to a “controlled substance”. During the trial, the parties debated whetherthe Crown was required to prove beyond a reasonable doubt that the appellant had knowledge of the specific nature of the drug, namely,that it was heroin. The trial judge ruled that the Crown is bound by the particulars it chooses to include in a charge and that in the case atbar, it had to prove beyond a reasonable doubt that the appellant had subjective knowledge of the presence of heroin.

He also instructedthe jurors that they could rely on the appellant’s recklessness and wilful blindness as a basis for such knowledge. [3] Did the appellant know that her suitcases contained an illegal drug? Did she know that this drug was heroin? The outcome of thetrial was predicated on the answer to these two questions. The Crown argued in first instance, as it does on appeal, that the law does notrequire an affirmative answer to the second question to prove the appellant’s guilt.

This is the key issue on appeal, but before delving intoit, we examine the grounds of appeal that have been raised and the facts of the case. Grounds of appeal [4] The appellant raises five grounds of appeal, four of which revolve around her subjective knowledge of the imported substance. [5] The first ground is based on the judge’s answer to a question from the jury asking whether it was sufficient to conclude that theappellant knew she was transporting a controlled substance as opposed to heroin.

As previously stated, given the particularization in thecharges, the judge determined that the knowledge had to pertain to heroin. [6] Nonetheless, the second ground alleges that the judge was unclear in his instructions regarding the subject matter of theknowledge, that is, heroin or a controlled substance. That being said, the connection between the first two grounds is obvious and theappellant consolidated them. [7] Next, the appellant disputes the judge’s instruction to the jury, although it was consistent with R. v. Rathod, (Que. C.A.).

The judge explained to the jury that proof of knowledge, an essential element of importing and possession, could be shownthrough direct evidence (i.e., that the appellant knew the heroin was in her luggage), through recklessness (i.e., that she was aware of therisk of heroin being in her luggage and persevered in her conduct) or through wilful blindness (i.e., that she was aware she should inquire

further into what was in her luggage and she intentionally failed to do so). [8] The appellant argues that recklessness, unlike wilful blindness, cannot replace knowledge. She asks the Court, sitting as a panelof five judges, to overrule Rathod and give preference to the opinion in R. v. Sandhu (1989), (ON CA), 50 C.C.C. (3d)492, in which the Ontario Court of Appeal rejected the idea that recklessness can lead to the knowledge required for possession andimporting of illegal drugs.

It should be noted that, in Rathod, this Court specified that it was not adopting the rule set out in Sandhu, adecision that had been rendered a few years earlier. [9] The appellant’s fourth argument pertains to the admissibility of her out-of-court statement made to the police onDecember 9, 2015. [10] Lastly, the appellant submits that the verdict is unreasonable, because, in her opinion, the evidence does not show that she hadsubjective knowledge of the presence of heroin.

The appellant concedes, however, that if her December 9, 2015 statement is notexcluded, some of what she said supports the application of wilful blindness regarding the presence of a generic drug, although it doesnot lead to the conclusion that she knew the drug was even illegal. [11] A brief review of the facts of the case is in order before we analyze the grounds of appeal. The general facts [12] The appellant’s version of the facts was presented to the jury through her out-of-court statements and when she testified in herdefence.

The jury heard detailed, but not always consistent, evidence about her meetings with persons related to her trip to Rwanda andher return to Canada via Zurich and Brussels. These inconsistencies or contradictions certainly prevailed in the assessment of theappellant’s credibility. In great detail, and often in a manner inconsistent with her December 9, 2015 out-of-court statement, the appellantexplained her trip, what she knew and the manner in which she took possession of the suitcases in Africa.

Her narrative was not alwaysclear and contains numerous superfluous details, and persons were often only referred to by their first name. It is therefore difficult todetermine what story the jury accepted. For purposes of the appeal, the situation can be summarized as follows. [13] Before going on this trip, the appellant lived in Western Canada. She describes herself as an open-minded person who likes toparty, likes to help others and trusts others easily. In Western Canada, she worked as an escort and erotic masseuse and also earnedincome as a nanny and chef.

Indeed, many of her clients are at the heart of her narrative. [14] In July 2015, she made a second trip to Rwanda, for 10 days, less than three months after the first trip, to meet up, as she explainsit, with Abdullah (or Abdellah), with whom she was in love. There, she also saw an older man by the name of Malik. Malik was one ofher clients from Vancouver. He had introduced her to Abdullah as his nephew. Lastly, a friend of Malik, a person by the name ofMasoud, joined them in Africa. [15] For each trip, the airplane tickets were paid for in cash.

In addition, for the second trip she obtained a new passport, paid for by aperson by the name of Sam, another friend and client of the appellant who lived in Calgary. It was Sam who drove her to the airport andprovided her with a new telephone. Sam also knew Malik. It was Malik who paid for the airplane tickets and related expenses for thissecond trip. The appellant had known all of these people for years. [16] After a few days in Africa with Abdullah, Malik and Masoud, the appellant took possession of two new suitcases offered to herthere by these men.

The suitcases, which were padlocked, had been packed for her and that had made her uncomfortable. She had alsobeen told that the suitcases given to her contained something, without, however, having been told what it was, and that some peoplewould take possession thereof upon her return to Vancouver. She had been given the key to the suitcases. She stated that she hadsuspected the presence of drugs, but had chosen not to check the contents.

She also told the police officers that she had been promisedcompensation for bringing back the suitcases, namely, some twenty thousand dollars, which she needed to start a business. Upon herdeparture from Africa, Malik and Masoud accompanied her to the Kigali airport for her flight. [17] On July 17, 2015, when she arrived in Montreal, the appellant learned that her suitcases had been “delayed”. Sam and a man bythe name of Moe, who was another client of the appellant, were waiting for her at the airport.

She spent one night in Montreal andreturned to the airport the following day, accompanied by Moe, to retrieve the suitcases. When she was arrested by the border servicesofficer, she remained stoic. Moe fled the airport. The appellant gave explanations to the border services officer. [18] While in custody pending her trial, the appellant decided to cooperate with the investigators. After having been advised bycounsel, she met with the Royal Canadian Mounted Police investigators on December 9, 2015.

During that meeting, she admitted havinghad suspicions regarding the contents of the padlocked suitcases that had been given to her by her friends and that she had brought backto Montreal. She believed they contained drugs or some type of device: To be honest, I was thinking it’s either a device or has something to do with drugs. That’s what I was thinking. [19] Even though she had been left alone with the suitcases in her hotel room, with the key in her possession, she had preferred not tocheck their contents, other than the clothing that was in them and that had also been presented to her as a gift.

Analysis of the grounds of appeal Admissibility of the December 9, 2015 statement [20] It is useful to begin the analysis with the fourth ground of appeal pertaining to the admissibility of the December 9, 2015statement, because, given this statement, the appellant concedes that the jury could have found evidence therein that she had suspectedthe presence of drugs in the suitcases and had preferred not to check. On May 31, 2017, the case management judge, Guy Cournoyer,J.S.C., as he then was, concluded that the statement was admissible evidence: 2017 QCCS 2355.

[21] According to the appellant, this statement was motivated by fear that the people who had placed the drugs in her suitcases wouldretaliate against her or her family. Indeed, she alleged that they had threatened her directly in the course of the misadventure. Theappellant explained that she cooperated with the police in exchange for a promise to obtain their protection regarding this threat. [22] The appellant reiterates the arguments presented to Cournoyer, J.S.C., as he then was.

She argues that he was wrong in notconcluding that, in light of her fears, the police officers should have suspended the questioning in order to clarify the situation byensuring that her safety was not at risk and reassuring her, if necessary. They should not have continued the questioning when she hadlegitimate fears. According to the appellant, the police officers did not act appropriately. Instead, they used her fears to get her tocooperate and elicit her statement, intimating that they would intervene if they obtained more information.

Under these circumstances,her statement was not voluntary and, moreover, it was false in several respects. Lastly, the appellant argues that the judge did not givesufficient reasons for his decision. [23] This last ground of appeal has no merit and must fail. Reasons are sufficient if a judgment contains all the elements needed tosupport and understand the judge’s reasoning: R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869. That is the case here.

As forthe rest of the appellant’s arguments, she has not shown a palpable and overriding error in the findings of fact that led to the judge’sconclusion, such error being the threshold for this Court’s intervention: R. c. Tshitenge Masuku, 2017 QCCA 1641, para. 21; LSJPA —1840, 2018 QCCA 1985, para. 36; R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3, paras. 22, 71; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, para. 15; R. v.

Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, para. 51. [24] In his judgment, the judge set out the circumstances surrounding the statement, thereby taking into consideration the admissions,the appellant’s prior statement, the fact that she obtained legal advice before requesting the meeting, her repeatedly expressed desire totell the truth in order to help the police, the purpose of the meeting, the presence of an appropriate caution and, lastly, the absence of anypromises or of an intimidating atmosphere.

The judge concluded that the evidence did not show any unlawful suggestions by the policeofficers, whether implicit or explicit. In this regard, he did point out that the police officers’ words were sometimes ambivalent, but thatthey always explicitly stated that they could not make any promises. [25] The appellant explained that, due to her fears, she was trying to secure an in camera hearing, which would protect her from heraccomplices. The judge concluded that the police officers always told the appellant that it was up to the court and the Crown, not them,to decide on her request.

The judge was well aware of the circumstances and, in accordance with the jurisprudence, he found that theevidence did not show that the appellant’s will had been overborne so as to obtain her cooperation: LSJPA — 1840, 2018 QCCA 1985; R.v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3, para. 47; R. v. Spencer, 2007 SCC 11 , [2007] 1 S.C.R. 500, para. 15. [26] On the contrary, the judge concluded that the appellant had an [translation] “irresistible desire to confess” as described in thecase law: R. c. Chaussé, 2018 QCCA 874, affirming 2015 QCCS 1937; R. v. Harper, [1994] 3 S.C.R. 34.

This led him to conclude thatthe statement was given freely and voluntarily and his conclusions are based on the evidence. These are findings of fact. The Court seesno error on the part of the judge, and the appellant has not been able to convince it otherwise, including with her argument regarding herfears at the time of the questioning: LSJPA — 1840, 2018 QCCA 1985. [27] As for her allegation that the judge failed to weigh the prejudicial nature of the statement against its probative value, there isnothing to indicate that it had a prejudicial effect as defined in the jurisprudence: R. v.

D. (L.E.), (SCC), [1989]2 S.C.R. 111, 127-128; R. v. Handy, 2002 SCC 56 , [2002] 2 R.C.S. 908. [28] This ground is therefore dismissed. Guilty knowledge of the nature of the drugs [29] In his instructions to the jury, the judge often reiterated that the evidence had to convince the jury that the appellant knew thenature of the drugs, namely, that the substance was heroin. Here is the main passage in which the judge explained the three ways inwhich the jury could be convinced of that: Now, let’s go to the third question. Did Ms. Narinesingh know that the substance was heroin?

This question is important as the others,has to do with her knowledge of the nature of the substance. Did she know that the substance was heroin? Knowledge is a state of mind,Ms. Narinesingh’s state of mind. To prove this essential element, knowledge, Crown counsel must prove beyond a reasonable doubteither 1) that Ms. Narinesingh actually knows or was aware that the substance was heroin. Ms. Narinesingh does not have to know thetechnical term for the substance, but must have known that it was heroin. 2) Ms. Narinesingh saw the risk that the substance could be heroin, yet went ahead despite the risk.

Or 3) that Ms. Narinesingh herself was aware of the need to make an inquiry about the nature of what she was transporting, butdeliberately failed to do so because she didn’t want to know the truth about the nature of the substance. Here the issue is whetherMs. Narinesingh was aware of that need to inquire, not whether another reasonable person would have been. […] It is for you to say whether Crown counsel has proven beyond a reasonable doubt Ms.

Narinesingh’s knowledge of the nature of thesubstance in either of these ways. [30] It is indisputable that the jurisprudence requires the Crown to prove the particulars set out in a charge: R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, paras. 2, 11-13; R. v. Daoust, 2004 SCC 6 , [2004] 1 S.C.R. 217, para. 19; R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020; R. v. Douglas, (SCC), [1991] 1 S.C.R. 301; R. v. Vézina and Côté, (SCC), [1986] 1 S.C.R. 2, 26; R. v. Morozuk., (SCC), [1986] 1 S.C.R. 31, 37; R. v. Rosen, (SCC), [1985] 1 S.C.R. 83, 85; R. v. Côté, (SCC), [1978] 1 R.C.S. 8, 13; R. c.

Langille, 2007 QCCA 74; R. c. Pointejour-

Salomon, 2011 QCCA 771, para. 21; R. c. Giguère, (Que. C.A.). [31] The trial judge therefore required that the jury be convinced beyond a reasonable doubt that the appellant knew that she wasimporting heroin as opposed to a controlled substance, that is, a generic illegal drug. He gave instructions to that effect. [32] In Saunders, McLachlin, J., as she then was, noted that “[i]t is a fundamental principle of criminal law that the offence asparticularized in the charge must be proved”: R. v.

Saunders, (SCC), [1990] 1 S.C.R. 1020, 1023 [33] It is undeniable that once the drug has been particularized in the charge, the Crown must prove this material element in order toobtain a conviction. As McLachlin, J., as she then was, noted, “[i]n Morozuk v. The Queen, (SCC), [1986] 1 S.C.R. 31,at p. 37, this Court decided that once the Crown has particularized the narcotic in a charge, the accused cannot be convicted if a narcoticother than the one specified is proved”: R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020, 1023.

Morozuk had beenconvicted of possession of cannabis marijuana for the purpose of trafficking, which was the offence particularized in the charge, eventhough it was cannabis resin which was found, a different substance. The solution lay in amending the charge but only if doing so wouldnot prejudice the accused. The Supreme Court, which was of the view that the accused would not be prejudiced, amended the charge anddismissed the appeal.

It should be noted, however, that in Saunders and Morozuk, the contentious issue was not truly the accused’sknowledge, but rather the nature of the drugs themselves (cocaine vs heroin, the substance that was the subject matter of the conspiracyin Saunders, and cannabis marijuana vs cannabis resin, the substance that was the subject matter of the possession in Morozuk). This isnot the case in the matter at hand. [34] In the case at bar, the appellant was charged with importing and possessing heroin and no one disputes the fact that the drugfound in the suitcases was indeed heroin.

The problem does not lie with this material element, but rather with the connection between thedrug particularized in the charge and the guilty knowledge, an element of mens rea. [35] The Crown argues that it does not have to prove that the mens rea, i.e., the knowledge, pertains to the drug particularized in thecharge, but that knowledge of an illegal drug is sufficient. It relies on precedents to that effect: R. v. Blondin, (1970), (BC CA), 2 C.C.C. (2d) 118 (B.C. C.A.), summarily affirmed by the Supreme Court of Canada in [1971] S.C.R. v; R. v. Kundeus, (SCC), [1976] 2 S.C.R. 272, and R. v.

Cloutier (SCC), [1979] 2 S.C.R. 709, 734. [36] Blondin has been followed by a number of appellate courts, including this Court: R. c. McClelland, 2020 QCCA 324, para. 99; R.v. Williams, 2009 ONCA 342; R. v. Rai, 2011 BCCA 341; R. v. Lewis (2012), 2012 ONCA 388 , 284 C.C.C. (3d) 423, para. 12(Ont. C.A.); R. v. Stewart, 2020 ABCA 252. [37] It should be noted that R. v. Blondin, (1970), (BC CA), 2 C.C.C. (2d) 118 (B.C.

C.A.), which is cited inMcClelland, was summarily affirmed by the Supreme Court of Canada, in [1971] S.C.R. v, on a sole ground of appeal pertaining to thejudge’s error in instructing the jury that “the Crown was obliged to prove beyond a reasonable doubt that the accused knew that thecontents of the scuba diving tank (Exhibit 1) was a narcotic drug as alleged in the Indictment…”. That such an instruction is an error wasreiterated in R. v. Kundeus, (SCC), [1976] 2 S.C.R. 272, as well as in R. v. Aiello (1978), (ON CA),38 CCC (2d) 485 (Ont.

C.A.), which was summarily affirmed at (SCC), [1979] 2 S.C.R. 15. [38] More recently, in R. v. McClelland, 2020 QCCA 324, at paragraphs 99 and 100 of the judgment written by Gagnon, J.A., thisCourt agreed with this line of authority, stating the following: [translation] [99] For their part, doctrinal writers have accepted that the element inherent in possession under the criminal law — knowledge — can betransposed to the offence of importing narcotics. The jurisprudence, however, does not go as far as requiring evidence that the accusedhad knowledge of the exact nature of the illegally imported substance.

The Crown need only show that the accused knew he or she wasin the presence of some type of narcotic, here this being mens rea in the broadest sense. The jurisprudence has also accepted that suchknowledge can be established via the doctrine of wilful blindness. [100] In Williams, the Ontario Court of Appeal summarized the law on this issue as follows: [19] There is some support for this approach to the mens rea component of the s. 95(1) offences in the jurisprudence arising from drug-related prosecutions.

In trafficking, importing or possession cases, it is not necessary for the Crown to demonstrate that the accused knewhe or she possessed (or was importing or trafficking in) the very prescribed drug identified in the indictment, provided the accused knewthe drug was a narcotic—for example, the actual drug involved is cocaine whereas the accused believed it to be hashish, or is LSD butwas believed to be mescaline: see R. c. Burgess, (ON CA), [1970] 2 O.R. 216, [1969] O.J. No. 1582 (C.A.); R. c.Blondin, (BC CA), [1971] B.C.J. No. 656, 2 C.C.C. (2d) 118 (C.A.), [1971] S.C.J.

No. 42, 4 C.C.C. (2d) 566; R. c.Custeau, (ON CA), [1972] 2 O.R. 250, [1971] O.J. No. 1893 (C.A.); R. c. Kundeus, (SCC), [1976] 2S.C.R. 272, [1975] S.C.J. No. 78.

In Burgess, at p. 217 O.R., Brooke J.A. said: [We] are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusion that theaccused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the factthat he mistakenly believed the drug to be hashish rather than opium is of no moment. […] [21] Under the narcotics control regime, the offence in question forbids the possession of (or the importing of or trafficking in) anarcotic.

Which narcotic does not matter, as long as it is included in a forbidden schedule. Similarly, under s. 95(1) of the Code, theoffence is the possession of a loaded firearm. Whether the firearm is prohibited or restricted does not matter. The common denominatorin the comparison between the two types of offences is that the actus reus (possession of a forbidden item) and the mens rea (knowledgeof the characteristics that make it a forbidden item) do not relate to different crimes but rather to the same crime in each case.

[References omitted.] [39] This Court has adopted an approach consistent with that of other appellate courts. There is no reason to revisit the issue in thecircumstances of this case where, in particular, the rule does not cause any prejudice to the appellant. Consequently, the Crown is correctin arguing that the trial judge should not have emphasized in his instructions to the jury that the appellant’s guilty knowledge had topertain to the particularized drug. Knowledge of the presence of an illegal drug included in

Schedule I is sufficient. The ruling in Rathod and proof of knowledge [40] As stated above, the appellant requested a panel of five judges with a view to overruling R. v. Rathod, (Que.C.A.), where it was decided that knowledge can be established through wilful blindness or recklessness. [41] In that judgment, Proulx, J.A. made the following comment in a footnote: [translation] Contrary to the Ontario Court of Appeal’s position in R. v.

Sandhu (1989), (ON CA), 50 C.C.C. (3d) 492, where itwas decided that recklessness cannot be used to establish guilty knowledge (“where an offence requires knowledge on the part of theaccused, it is improper to instruct the jury that a finding of recklessness satisfies that requirement”), and in agreement with Professor DonStuart’s commentary on that judgment [(1989) 73 C.R. (3d), p. 163], I am of the view that in the case at bar the jury should have beenasked to consider both recklessness and wilful blindness as forms of guilty knowledge. The ruling in Sansregret seems conclusive on thatpoint.

I also note that in Aiello v. The Queen, (SCC), [1979] 2 S.C.R. 15, the Court endorsed the reasons of Martin, J.A.of the Ontario Court of Appeal [ (ON CA), 38 C.C.C. (2d) 485], who ruled that guilty knowledge can be based onwilful blindness just as on recklessness. R. v. Rathod, (Que. C.A.) [Emphasis added.] [42] As the trial judge explained in his instructions to the jury, the knowledge required for a finding of guilt can be establishedthrough direct evidence. However, as with any component of mens rea, this is generally the exception. In most instances, this knowledgeis inferred from the evidence.

Thus, in order to prove guilty knowledge, the law developed the concept of wilful blindness as a substitutefor actual knowledge. Wilful blindness (or deliberate ignorance) [43] As the Supreme Court recently reiterated, “[w]ilful blindness is a substitute for the accused’s knowledge of the facts wheneverknowledge is a component of mens rea and where the accused is deliberately ignorant”: R. v. Zora, 2020 SCC 14, para. 113; R. v.Morrison, 2019 SCC 15 , [2019] 2 S.C.R. 3, para. 98; R. v. Spencer, 2014 SCC 43 , [2014] 2 S.C.R. 212, para. 84. [44] In McClelland, Gagnon, J.A., specifically citing R. v.

Sansregret, (SCC), [1985] 1 S.C.R. 570, R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55, R. v. Briscoe, 2010 SCC 13 , [2010] 1 S.C.R. 411 and R. v. Rathod, (Que.

C.A.) as well as a number of authors, indicated the following: [translation] [84] In Briscoe, Charron, J. explained that the doctrine of wilful blindness “can substitute for actual knowledge whenever knowledge is acomponent of the mens rea”. [85] This legal concept can be summarized as follows: it involves a legal inference of guilty knowledge imputed to an accused based onhis suspicions regarding the existence of a significant fact in connection with a given activity.

Despite this state of mind, the accuseddeliberately chooses not to inform himself so that, as the circumstances warrant, he can say that he was unaware of this fact. [86] In Sansregret, the Supreme Court described the doctrine of wilful blindness as follows: […] wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because hedoes not wish to know the truth.

He would prefer to remain ignorant. [87] In Jorgensen, Sopinka, J. offered this succinct test to determine whether the doctrine applies: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? […] [92] This brings me to consider the level of suspicion required of an accused who shuts his eyes to a dubious situation.

In Sansregret,Jorgensen and Briscoe, the Supreme Court adopted Professor Glanville Williams’ suggestion that wilful blindness is based on aprobability: Before the doctrine of wilful blindness applies, there must be realisation that the fact in question is probable, or, at least, “possible abovethe average”. … A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; herealised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to denyknowledge.

This, and this alone, is wilful blindness. [93] Professor Sherrin is of the view that the majority position in Canada suggests that a high degree of suspicion is not required to provedeliberate ignorance. In my opinion, the jurisprudence relating to narcotics-related offences exemplifies this level of suspicion.

R. v. McClelland, 2020 QCCA 324, paras. 84-87, 92-93 [References omitted.] [45] There is therefore no doubt that the appellant’s actual knowledge could be imputed to her if the evidence led to the conclusionthat she wilfully refused to inquire further into the contents of the suitcases so as to remain unaware. Recklessness [46] The issue of whether criminal recklessness supports an inference of knowledge is more controversial in the jurisprudence.

Asstated earlier, the appellant asks this Court to overturn the principles applied in Rathod, supra, and conclude that the judge was in error tofollow the teachings in that decision and that he erred in telling the jury that the appellant’s guilty knowledge could be establishedthrough proof of her recklessness. In a different context, in Oluwa, the British Columbia Court of Appeal found that knowledge could beproved through recklessness: R. v. Oluwa (1996), (BC CA), 107 C.C.C. (3d) 236, para. 99 (B.C.

C.A.). [47] In Sansregret, the Supreme Court defined recklessness: In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminalmens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct couldbring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one whosees the risk and who takes the chance.

It is in this sense that the term “recklessness” is used in the criminal law and it is clearly distinctfrom the concept of civil negligence. R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570, 582. [48] In Rathod, Proulx, J.A. rejected the reasoning in R. v. Sandhu, (1989), (ON CA), 50 C.C.C. (3d), 492 (Ont.C.A.), preferring the reasoning in R. v. Aiello, (SCC), [1979] 2 S.C.R. 15.

In the latter judgment, the Supreme Courtsummarily affirmed the decision of the Ontario Court of Appeal, which had held that guilty knowledge could be based on wilfulblindness (or deliberate ignorance) just as it could be based on recklessness. Martin, J.A. had written: We are also of the view that the trial Judge erred in failing to direct the jury that the knowledge on the part of the respondent necessary toconstitute the offence, need not be proved by direct evidence but could be inferred from all the surrounding circumstances.

In our view, the trial Judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondentassumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to itbeing such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence wasestablished. R. v. Aiello (1978), (ON CA), 38 C.C.C. (2d) 485, 488 (Ont.

C.A.) [Emphasis added.] [49] As to Professor Stuart’s commentary regarding wilful blindness and recklessness, to which Proulx, J.A. referred in Rathod (seeabove at para. [41]), he intimates that the two concepts are “six of one, half a dozen of the other” insofar as recklessness is not confusedwith civil negligence. This commentary pertained to the ruling in Sandhu, in which the Ontario Court of Appeal took note of thejurisprudence and concluded that “[w]ilful blindness is imputed knowledge while recklessness is quite another thing”: R. c. Sandhu,supra, p. 497.

Professor Stuart wrote [(1989) 73 C.R. (3d) 163)]: “Recklessness involves actually recognizing a risk but proceeding. Being wilfully blind is recognizing the risk but suppressing thethought. The concepts appear overlapping. As long as there is in either case a rigorous application of the test of actual awareness, theextensions of mens rea seem generally sensible.” [Emphasis added.] [50] We see, on the one hand, that there is a thin line between the two concepts and, on the other hand, that the facts show that thepresence of wilful blindness usually implies the presence of recklessness.

In other words, wilful blindness in most cases involves criminalrecklessness; the reverse is not always true. [51] As for Professor Sherrin, he argues that it is the concept of wilful blindness, a form of recklessness, which is unnecessary.

In hisview, recklessness satisfies the criminal law requirements, although he acknowledges that the Supreme Court seems to want to maintainthe distinction between the two concepts: It essentially amounts to unacceptable, intentional risk taking, a mental state that is already captured by the concept of recklessness.While it may in theory be more than recklessness, in practice the differences seem to be few and of minimal significance. […] The Supreme Court of Canada has quite explicitly taken the position that recklessness and wilful blindness are distinct concepts thatshould not be confused.

In R v Briscoe, for example, the Court stated that “wilful blindness, correctly delineated, is distinct fromrecklessness” and “[i]t is important to keep the concepts … separate.” In R v Sansregret, the Court stated that “they result from differentmental attitudes”. Christopher Sherrin, Wilful Blindness: A Confused and Unnecessary Basis for Criminal Liability? (2014) 47 UBC L Rev 709.[References omitted.] [52] The Supreme Court has written that “wilful blindness, correctly delineated, is distinct from recklessness”: R. v. Briscoe, 2010SCC 13 , [2010] 1 S.C.R. 411, para. 20.

It clearly reiterated the importance of maintaining the distinction between the twoconcepts:

[23] It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction onthe doctrine: The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, anunstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almostbe said that the defendant actually knew.

He suspected the fact; he realised its probability; but he refrained from obtaining the finalconfirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect afinding that the defendant intended to cheat the administration of justice.

Any wider definition would make the doctrine of wilfulblindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added.] (Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret, at p. 586).) [24] Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilfulblindness”, as it connotes “an actual process of suppressing a suspicion”.

Properly understood in this way, “the concept of wilfulblindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (CanadianCriminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, asfor example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is notsimply a failure to inquire but, to repeat Professor Stuart’s words, “deliberate ignorance”. R. v.

Briscoe, 2010 SCC 13 , [2010] 1 S.C.R. 411, paras. 23-24 [Emphasis in original.] See also: R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, paras. 100-101. [53] In Zora, the Supreme Court characterized recklessness differently within the context of the offence of failing to comply with bailconditions, by attributing a greater level of intensity to it. Recklessness thus requires that the person be “aware that their continuedconduct creates a substantial and unjustified risk of non-compliance with their bail conditions… ”: R. v.

Zora, supra, para. 118. [54] However, Martin, J., speaking for the Court, specified that “these reasons should not be interpreted as changing the generalprinciples of recklessness as a fault element set out in Sansregret, as my description of recklessness is specific to the offence under s.145(3)”: R. v. Zora, supra, para. 119. In Hamilton, Fish, J., writing for the majority of the Supreme Court, observed that, in Sansregret,the Court did not set out the degree of risk identified in that case and required to attract the criminal sanctions: R. v.

Hamilton, 2005 SCC47 , [2005] 2 S.C.R. 432, para. 32. [55] As applied to the possession of illegal drugs, recklessness must be understood to refer to the fact that the individual is aware ofthe risk that he or she may be in possession of illegal drugs but perseveres notwithstanding this risk. Provided the risk is not far-fetched,trivial, or de minimis, but rather “substantial and unjustified”: R. v.

Zora, supra, para. 118, it can lead to the inference that the accusedhas the knowledge required within the meaning of McClelland and Rathod, supra. [56] It is up to the judge to craft his instructions based on the evidence. In the present case, the judge did not err by following Rathodand by correctly identifying the risk notwithstanding the absence of the words “substantial and unjustified” to describe it. The riskrequired by the instructions was not far-fetched, trivial, or de minimis. In such matters, it is the message, not its formulation, which isimportant.

In any event, the evidence here establishes wilful blindness which, in the circumstances, implies recklessness and knowledge. The curative proviso [57] Based on the foregoing analysis, it seems clear that the judge was nevertheless mistaken as to the extent of the evidence requiredto prove guilty knowledge with respect to the offences set out in the indictment. In answering the jury’s question, he required morestringent evidence and imposed a more onerous burden of proof on the Crown, by obliging it to establish knowledge of the specificnature of the drug, namely, heroin.

As the respondent argues, under the circumstances these errors were to the appellant’s advantage andthe jury nevertheless found her guilty. The respondent asks the Court to apply the curative proviso, s. 686(1)(b)(iii) Cr.C., and dismissthe appeal notwithstanding the judge’s error of law: R. v. Tran, (SCC), [1994] 2 S.C.R. 951, 1008; R. v. Khan, 2001SCC 86 , [2001] 3 S.C.R. 823, para. 29.

The respondent’s request should be granted. [58] The evidence speaks volumes about the wilful blindness—which subsumed recklessness in the circumstances—of the appellantwith respect to the presence of drugs in her suitcases and the nature of those drugs. The appellant’s statement, viewed with the evidenceas a whole, can only lead to the necessary inference. The error had no impact in this regard. [59] For the same reason, the appellant’s argument that the verdict is unreasonable because the evidence does not support theconclusion that the appellant knew she was transporting heroin must fail.

The jury was reasonably entitled to accept a constellation offacts, based on the appellant’s personal and prior relationships with the protagonists, which lead to the conclusion, supported by therequisite degree of proof, that she was involved in all the details of the affair, including the nature of the drugs.

The jury was alsoentitled to find that the changing travel plans, the use of several telephones, the deletion of messages from the telephones’ memories andthe meeting with key players who were waiting for her in Montreal showed that the appellant was involved in importing the heroin withfull knowledge of the facts. The verdict is reasonable, even given the judge’s error, and in the circumstances, the respondent is correct tosubmit that the curative proviso applies. FOR THESE REASONS, THE COURT: [60] DISMISSES the appeal. FRANÇOIS DOYON, J.A.

MARIE-FRANCE BICH, J.A. JACQUES J. LEVESQUE, J.A. MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A. Mtre Rodolphe Bourgeois For the appellant Mtre Anne-Marie Manoukiane Mtre Samuel Monfette-Tessier PUBLIC PROSECUTION SERVICE OF CANADA For the respondent Date of hearing: June 9, 2020