R v QRUNNGNUT, 2014 NUCJ 22

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v QRUNNGNUT, 2014 NUCJ 22 Date of Judgment: 20140813 File Number: 08-11-115 Registry: Iqaluit Prosecutor: Her Majesty The Queen -and- Accused: Stephen Qrunngnut ________________________________________________________________________ Before The Honourable Mr. Justice E. Johnson Counsel (Applicant): M. Girard Counsel (Respondent): M. Christie Location Heard: Iqaluit, Nunavut Date Heard: January 30-31, 2013 Matters: Controlled Drugs and Substances Act S.C. 1996, c. 19 s. 5(4) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [1] The accused is charged with unlawfully possessing less than 3 kilograms of cannabis marijuana for the purpose of traffickingcontrary to section 5(4) of the Controlled Drugs and Substances Act S.C. 1996, c. 19. (CDSA). [2] In a voir dire ruling found at 2013 NUCJ 8 , 2013 NUCJ 08 [voir dire judgment], I found the evidence seized by the policewas admissible at trial despite breaches of the accused’s Charter rights. [3] Both Crown and Defence agreed that the evidence called at the voir dire was admissible at the trial.

The voir dire evidenceestablishes that the accused checked two bags at the Ottawa airport. One was his bag and the other was a bag he received from a personknown as Shawn (Shawn’s suitcase). When the RCMP searched the two bags at the Iqaluit airport they found a large panda bear inShawn’s suitcase.

Sewn into the panda bear were 1649 grams of marijuana in five separate vacuum packed bags that had a street value of$100,000. [4] The Crown did not call any additional evidence at the trial and the accused testified. [5] I set a timeline for the filing of written submissions and reserved judgment to August 13, 2014. [6] Defence counsel’s written argument raised an issue on whether the Crown had proved that the substance seized was cannabismarijuana and I gave the Crown until July 11, 2014 to respond.

Attached to the written submissions of the Crown was a certificate ofanalysis dated April 19, 2011 confirming that the substance seized was cannabis marijuana (Certificate). II. Issues [7] Did the Crown prove that the substance seized was cannabis marijuana? [8] Was the accused in possession of cannabis marijuana? Did the Crown prove that the substance seized was cannabis marijuana? A. Defence Argument [9] Defence counsel argues that the Crown provided no evidence as to the nature of the substance seized and the substance was notadmitted at trial.

He argues the accused would have no way of knowing what the substance was as he was never in possession of it andonly glimpsed it briefly. B. Crown Argument [10] The Crown provided a transcript of the June 14, 2013 court appearance when the voir dire judgment was released and the matterwas adjourned to set a trial date. That transcript indicates that Defence counsel admitted that there was no issue about the nature of the

substance and as a result the Crown did not tender the Certificate. C. Analysis [11] Lines 22-24 of the Transcript reveal that Defence counsel agreed there was no issue about the nature of the substance. It states: Mr. Lane. Is there any dispute over the nature of the substance? Mr. Christie. No, substance no. [12] I am satisfied that the Crown relied on this statement by Defence counsel in deciding not to enter the Certificate as an exhibit in thetrial. [13] I am satisfied that this statement by Defence counsel was an admission under

section 655 of the Criminal Code. It states: 655. Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose ofdispensing with proof thereof. [14] I am satisfied that the Crown would have tendered the Certificate if Defence counsel had not made the admission. [15] In the future counsel should use formal admissions under

section 655 to avoid any misunderstandings. Was the accused in possession of cannabis marijuana? A. Crown Argument [16] As held in R v Clouden 2011 ABQB 285, the Crown acknowledges that it must prove three things to establish the accused hadpossession of the 1649 grams of marijuana. First, the Crown must prove that the accused had actual possession of the marijuana. Second,that the accused knew he had actual possession of the marijuana.

Finally, that the accused exerted control over the marijuana. [17] The Crown argues that the accused’s evidence establishes that he was in physical possession of Shawn’s suitcase and exerted controlover it until he gave it to his brother-in-law Silas Kadlutsiak in Igloolik.

From this fact and other evidence, the court can infer that theaccused actually knew he was transporting the marijuana or that he was wilfully blind to that possibility. [18] As held in R v Jorgensen (SCC), [1995] 4 SCR 55 [Jorgensen] wilful blindness is not determined by applying anobjective test but rather by deciding whether the accused shut his eyes because he knew or strongly suspected that looking would fix himwith knowledge. [19] The Crown relies on the following facts to establish that the accused was wilfully blind. (

a) He made no attempt to check with Silas to see if he was expecting a suitcase from Shawn.

(

b) The accused’s explanation to justify bringing a suitcase to Igloolik to help people from Igloolik staying at Larga Baffin is suspectbecause Shawn was not an Inuk, did not reside in Nunavut and was not staying at Larga Baffin for medical treatment. He was also aperson that the accused had only met once briefly in Igloolik. (

c) The explanation is further suspect because the accused knew that Silas had supplied him with marijuana regularly over a four-yearperiod and that he was trafficking in marijuana. Furthermore, the accused testified that when Shawn met him at the airport he did not tellhim the name of the person to whom the suitcase was to be delivered. (

d) As the court has already held, the accused was not an unsophisticated person and he gave conflicting versions about the number ofmeetings he had with Shawn that undermine his credibility. There is no commonality between Shawn and the average patient residing atLarga Baffin and the accused was aware of it. [20] The inconsistencies in the accused’s evidence raise the very real possibility that he was not being truthful and had actual knowledgeof the content of the suitcase. Cst.

Allen testified that that the one key he was given opened the padlocks on both suitcases while theaccused testified that he intended Shawn’s suitcase to be checked under his daughter’s name. Furthermore, Shawn asked the accused notto use the key to open the suitcases.

This evidence cannot be explained rationally or culturally if the accused was not aware of thepresence of drugs in the suitcase. [21] The accused’s explanation that he thought he was bringing up Christmas presents and candies for Silas’ children is not credible.Firstly, the accused never testified that the proximity to Christmas made Shawn’s story more believable to him even though it makes aperfect cover story for the delivery of drugs. Secondly, the accused attempted to check Shawn’s suitcase under his daughter’s name andhe was told to bring the suitcase to Silas immediately upon his arrival in Igloolik.

If the request to bring the suitcase was a legitimatefavour to a Larga Baffin resident that commonly occurred there would have been no urgency to deliver it immediately. The accused didnot mention the proximity to Christmas because he knew the actual content of the suitcase. [22] The Crown does not have to prove actual knowledge and can establish mens rea through wilful possession. There is a significantamount of evidence that the accused made a concerted effort not to become aware of the practicalities around Shawn’s drug use.

Hetestified that he did not ask Shawn if there were drugs in Shawn’s suitcase because he did not expect him to tell the truth. This evidenceproves that the accused’s mind was addressed to these possibilities. He should have been suspicious when Shawn did not ask him untilthree days into his stay at Larga Baffin to carry the suitcase. What is more telling is that the accused attempted to have Shawn’s suitcasechecked under his daughter’s ticket and consented to the search thinking that only his bag would be searched. He was not concernedabout a search of his bag because Cst.

Allen had told him that he would not be charged for a small amount of marijuana. [23] If these facts do not lead to an inference that the accused actually knew about the presence of drugs in his suitcase they shouldconvince this court that the four aspects described in Sansregret v The Queen (SCC), [1985] 1 SCR 570 [Sansregret]have been satisfied. Those aspects are: (

a) Awareness of the need to make an inquiry; (

b) Declining to make the inquiry; (

c) Not wishing to know the truth; (

d) Preferring to remain ignorant. [24] The accused became worried enough about Shawn’s suitcase that he decided to check it under his daughter’s ticket. He also did notask Shawn about the contents of the suitcase or open it with the key. These facts made him wilfully blind to the fact that he was inpossession of illicit drugs for the purpose of trafficking. B. Defence Argument

[25] The Defence acknowledges that for the accused to be found in possession of the marijuana, he would have to have knowledge of thedrugs. That knowledge could come from either actual knowledge or wilful blindness about the drugs. [26] The accused had no actual knowledge of the drugs. He testified that he never opened the suitcase, had no idea what was in it andonly saw the marijuana at the airport after the search.

Furthermore, even if he opened up the suitcase he would not have seen the drugsbecause they were sewn into the panda bear. [27] The accused relies on the statements about wilful blindness at para 26 in R v Lagace (ON CA), [2003] OJ No4328, 181 CCC (3d) 12 [Lagace] and at para 25 of R. v Bakos 2008 ONCA 712, [2008] OJ No 4067 to argue that the test is subjective.Therefore this court must be satisfied that the accused had a real or aroused suspicion in his mind and then failed to make furtherinquiries. [28] The following evidence from the accused that emerged after a thorough cross-examination demonstrates that his suspicion was notaroused. (

a) Shawn told the accused at the first meeting at the airport that he wanted him to take toys and candies with him when he travelled toIgloolik; (

b) Shawn told the accused that the toys and candies were going to Silas who he had known for many years and who had three youngchildren; (

c) The accused believed that there were toys and candies in the suitcase and that his belief was reasonable; (

d) The accused had no suspicion that there were drugs in the suitcase; (

e) The accused did not think that it was strange for someone to ask him to take a suitcase to give to Silas in Igloolik because he has doneit before and knew that many other people had done it as well; (

f) The accused did not find it strange that someone would give him money to carry the suitcase because others had paid him in the pastto do the same thing; (

g) The accused was not suspicious because he knew the family to whom the suitcase was going; (

h) The accused was not interested in what was inside the suitcase because Shawn had told him what was inside; (

i) The accused thought that people asked him to bring items to the north because he was a nice guy. [29] The accused’s pre-charge conduct supports his testimony that he had no knowledge that there were drugs in the suitcase. As Cst.Allen testified up to the point he was arrested, the accused did not appear scared or afraid and remained polite. A person with knowledgeof the drugs or who was being wilfully blind would have been nervous from the very first contact with the RCMP.

The accused’sdemeanor was not consistent with someone who knew or had a suspicion that they were transporting 3.63 pounds of marijuana. [30] It was only when the police brought in both suitcases that the accused became worried. His worry at this point is reasonable eventhough he never suspected the presence drugs in the suitcase. He was in the presence of the RCMP who had been found by this court inthe voir dire judgment to have breached some of his most important Charter rights and he viewed the RCMP through Inuit eyes as being

all-powerful and to be feared. If the police said there were drugs in the suitcase it was reasonable at that time for the accused to beworried. [31] The accused was not much of a drug user and was not in a position where he needed to be involved in drug trafficking to obtain hisdrugs.

He did not even smoke the six joints that Shawn gave him despite having them in his possession for a few days. [32] The accused’s lack of a criminal record gives credence to his claim of non-involvement. [33] Defence counsel argues that the accused had no idea that there were drugs in the suitcase and believed he was simply taking toysand candy to children he knew in Igloolik as he and others had done in the past. [34] The accused repeated many times in his testimony that he was not in the habit of prying into other people’s lives.

The test for wilfulblindness is a subjective test and this evidence supports his claim that he was not suspicious about the content of the suitcase. [35] Defence counsel submits that the accused was an innocent helpful and descent person who was preyed upon because of thoseattributes. [36] In applying the test from R v W(D) (SCC), [1991] 1 SCR 742 [R v W(D)], Defence counsel submits that this courtshould find the accused’s evidence was believable and trustworthy.

The court preferred his evidence on the Charter motion and he wasconsistent even when pushed hard and repeatedly by Crown counsel on the issue of wilful blindness. Alternatively, if this court does notprefer the accused’s testimony to the Crown theory the court should be left with a reasonable doubt and should acquit the accused. C. Analysis [37] At para 22 of Sansregret, the Supreme Court of Canada approved Glanville Williams’ definition of wilful blindness that stated asfollows: 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 realized 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. [38] At para 103 of Jorgensen the Court refined the test and stated it as follows: A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or stronglysuspected that looking would fix him with knowledge? Retailers who suspect that the materials are obscene but refrain from making thenecessary inquiry in order to avoid being contaminated by knowledge may be found to have been wilfully blind.

The determination mustbe made in light of all the circumstances. In Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, this Court held thatthe circumstances were not restricted to those immediately surrounding the particular offense but could be more broadly defined toencompass, for example, past events. [39] In Lagace the Ontario Court of Appeal, at para 26, rejected the Defence argument that wilful blindness required a level of suspicionthat amounted to a probability the vehicles were stolen as follows: I would reject this submission.

I see no need to quantify the level of suspicion beyond the recognition that it must be a real suspicion in

the mind of the accused that causes the accused to see the need for inquiry: R. v. Sansregret (1985), (SCC), 18 C.C.C.(3d) 223 at 235 (S.C.C.); R. v. Jorgensen (1995), (SCC), 102 C.C.C. (3d) 97 at 135 (S.C.C.); R. v. Duong (1998), (ON CA), 124 C.C.C. (3d) 392 at 401-402 (Ont. C.A.). [40] In Bakos the Ontario Court of Appeal, at para 25, approved the trial judge’s charge on wilful blindness.

He stated: On this issue, the trial judge correctly charged the jury when he described wilful blindness as comprising aroused suspicions on the partof the appellants and deliberate omission to make further inquiries. [41] The Crown argues that the accused had actual knowledge that the drugs were in his possession. This argument is based on theinconsistencies in the accused’s evidence that undermine his credibility and because he was a smart man.

Additional facts that suggestknowledge are the implausibility of the toys and candies story, the fact that the accused did not ask Shawn what was in the suitcase andthat the accused attempted to check the suitcase under his daughter’s name. [42] I am satisfied that I cannot infer that the accused actually knew there were illegal drugs in Shawn’s suitcase. I did not find that theaccused was a sophisticated man.

In fact, at para 72 of the voir dire judgment I stated that the accused “was unsophisticated” although Ialso found that he had more knowledge of English than suggested by Defence counsel. [43] The Crown attacks the credibility of the accused because of his divergent versions of his meeting with Shawn. I am satisfied that theaccused’s evidence was not inconsistent.

He simply provided more evidence at the trial than at the voir dire because he was cross-examined more thoroughly. [44] The story about the toys and candies is more plausible given the proximity to Christmas even if the accused never mentioned it. [45] The evidence obtained from the accused in the voir dire about his intentions when he checked the two suitcases in Ottawa does raisesome suspicions that he knew Shawn’s suitcase might contain drugs. He was thoroughly cross-examined by Mr. Lane at the voir direabout it.

The accused explained that he intended to check his suitcase on his boarding pass and Shawn’s suitcase on his daughter’sboarding pass. He did that because he was concerned about the weight of the bags. He put his bag under his name because his bag had atag with his name on it. When the accused consented to the search he thought the police would only bring his bag and got worried whenthey brought both bags. The accused denied he knew there were drugs in the bag he received from Shawn when confronted by Mr.Lane.

That is when he became worried because the police had told him that they thought there were drugs in the bag. He then thoughtthey might find something. The accused then confirmed again that he thought the bag contained toys and candies and did not know therewere drugs in the bag. [46] If the accused had opened the suitcase he received from Shawn he would not have seen the drugs unless he did a thorough search aswas carried out by the police. On balance I am satisfied that I cannot make the inference that the accused knew there were drugs in thebag.

However, I do find that this case falls into the category described by Williams that “it can almost be said that the defendant actuallyknew” (Sansregret at para 22). [47] The final issue is whether the accused was wilfully blind to the possible presence of drugs in the suitcase and then failed to makefurther inquiries. The accused does not deny that he was physically in possession of the suitcase and exerted control over it.

As held inSansregret, I must now determine whether the accused shut his eyes because he knew or strongly suspected that looking would fix himwith knowledge? [48] Both Crown and Defence agree that the test to be applied to answer this question is a subjective test. I must look at the knowledgethe accused possessed and assess if his suspicions were aroused enough that he should have made further inquiries. [49] The Crown accurately points out that there are a number of surrounding facts that objectively indicate the accused should have beensuspicious and have made further inquiries.

He used marijuana and received marijuana regularly from Silas including around the time ofthe offence but never paid him for it. He had only met Shawn once in the previous ten years when he showed up at the airport on hisarrival in Ottawa and he told him he had some candies and toys for him to take to Igloolik. Shawn then showed up unexpectedly at thehotel where the accused was staying and gave him the suitcase to take to Igloolik. When he gave the key to the suitcase he told him notopen it up and to deliver it to Silas immediately after he arrived in Igloolik.

Shawn gave the accused 5 marijuana cigarettes and $200 to

deliver the suitcase. [ 50 ] The Crown relies on the evidence obtained from the accused that he intended to have Shawn’s suitcase checked under his daughter’s ticket to prove that he suspected there were drugs in the suitcase. The Crown also points to the accused’s evidence that he did not ask Shawn if there were drugs in the suitcase because he did not think he would tell him the truth. [ 51 ] The accused’s first argument is that the evidence summarized at para 28 above should be believed.

If I believe his evidence, I should be satisfied that his suspicions were not aroused and he had no basis to make further inquiries. [ 52 ] I am satisfied that the accused suspected that there might be drugs in Shawn’s suitcase because his explanation for attempting to check Shawn’s suitcase on his daughter’s ticket does not make any sense. His initial response was that he was concerned about the weight of his suitcase but he never weighed them and had no knowledge of the weight limitation.

When the Crown probed further he then explained that he checked his bag on his ticket because it had a tag with his name on it. [ 53 ] The accused’s belief that Shawn’s suitcase was checked under his daughter’s ticket would also explain why he did not appear nervous to the police. He was sure that the police would bring his bag for a search and when he saw both bags he knew there was a reason to worry. [ 54 ] Further the accused admitted that he thought about asking Shawn if there were drugs in the suitcase but did not because he thought he would lie.

The fact that the accused thought that he would not get a straight answer from Shawn proves his suspicions were aroused. [ 55 ] I therefore reject the evidence of the accused that he was not suspicious about the presence of drugs in Shawn’s suitcase. [ 56 ] Since I do not accept the evidence of the accused I must ask myself if I am left in reasonable doubt by it. I am satisfied that his evidence does not leave me with a reasonable doubt. [ 57 ] The final part of the R v W(

D) test is to consider whether the rest of the evidence of the accused that I do accept satisfies me beyond a reasonable doubt of his guilt. I am satisfied that I am not left with a reasonable doubt. [ 58 ] I find the accused was wilfully blind to the presence of drugs in Shawn’s suitcase and did not make further inquiries because he knew he would find out that there were drugs in the suitcase.

To once again use the words of Williams “he realized probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge”. [ 59 ] I therefore convict the accused of possession of cannabis marijuana for the purpose of trafficking contrary to section 5(4) of the CDSA . Dated at the City of Iqaluit this 13th day of August, 2014 _______________________ Mr. Justice Earl D. Johnson

Nunavut Court of Justice