2019 QCCQ 8673, 2019 QCCQ 8673

R. c. Edwards 2019 QCCQ 8673 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “ Criminal Division ” No: 500-73-004570-186 DATE: December 19 th , 2019 ______________________________________________________________________ BY THE HONOURABLE DAVID SIMON, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v. NICOLE EDWARDS Accused ______________________________________________________________________ REASONS FOR JUDGMENT [1] ______________________________________________________________________ I.

OVERVIEW [ 1 ] On March 29 th , 2018, the accused returned to Canada after spending a week in Barbados. While in transit at Montreal’s Pierre-Elliott Trudeau International Airport, she was stopped by Canada Border and Services Agency (“CBSA”) officers. [ 2 ] The officers searched her suitcases and found two empty bags inside. Both bags had a false bottom which contained 2.4 kilograms of cocaine. [ 3 ] The accused was arrested and charged with importing cocaine [2] and possession of cocaine for the purpose of trafficking [3] . At trial, she denied knowledge of the drugs found in her belongings. II.

ISSUE [ 4 ] The only question at issue is whether the Crown proved beyond reasonable doubt that the accused knew that she was carrying a controlled substance in her luggage. III. THE EVIDENCE [ 5 ] The Crown called five witnesses: CBSA officers Marc-André Robert, Alexandre Globensky, Maxime Sauriol, Hamza Bouhabel as well as Constable Jennifer Tomeo of the Royal Canadian Mounted Police (“RCMP”). [ 6 ] The

summary of the Crown’s evidence can be divided into five distinct headings consistent with the chronology of the events, namely: a. primary inspection;

b. surveillance at the luggage carousel; c. secondary inspection and detention; d. discovery of the drugs and subsequent search by CBSA officers; and e. seizure of evidence by RCMP. [ 7 ] As for evidence of the defence, it solely consists of the testimony of the accused. Crown’s evidence a. primary inspection [ 8 ] On March 29 th , 2018, CBSA officer Marc-André Robert (“Officer Robert”) was on duty in the transit area of the airport. He was in charge of primary inspection of passengers prior to luggage pick-up.

The accused came to his counter and produced her declaration card [4] as well as her Canadian passport [5] . [ 9 ] Officer Robert noted that the she was flying in from Barbados with a connecting flight to Ottawa. He noticed that she had ticked the “Food, Plants, Animals” (“FPA”) box on the declaration. He asked her what she had to declare. She stated: “Fish” [6] . [ 10 ] He then perused her passport and realized that it contained a couple of stamps from Barbados. This prompted him to verify her travel history. He also asked her whether it was her first trip to Barbados.

She replied that it was her third this year. [ 11 ] Intrigued, Officer Robert asked the accused where she worked. She said: “Stokes”. He further inquired into the number of suitcases she was carrying. She responded: “Three suitcases but one is empty”. [ 12 ] Questioned as to why she would carry an empty suitcase, the accused indicated that she had planned to bring back some personal belongings from Barbados but changed her mind. She left them there to be brought back on a subsequent trip. Officer Robert sensed some hesitation on the part of the accused. He then asked her how long she had been gone.

She answered: “Seven days”. [ 13 ] Officer Robert decided to refer the accused to secondary inspection, not because she had ticked off the FPA box, but because he was suspicious about the contents of her suitcases.

His decision was based on the following cumulative factors: the number of trips to Barbados within a short period of time; the nature of her work, which he viewed as inconsistent with the frequency and cost of her trips; the number of suitcases she was carrying for a seven day trip; and the country she was flying in from – Barbados, a source country in terms of narcotics. [ 14 ] According to Officer Robert, throughout his interaction with the accused, she appeared to be avoiding eye contact. b. surveillance at the luggage carousels [ 15 ] CBSA Officer Alexandre Globensky (“Officer Globensky”) was assigned to the surveillance of passengers at the luggage carousels.

His role consisted in screening passengers between primary and secondary inspection.

[ 16 ] At around 7:30 pm, he was near carousel n° 4 when he first saw the accused waiting for her luggage. He found it unusual that she was the only one continuously looking at him but would avoid eye contact upon realizing he was observing her. He intended to intercept her. [ 17 ] While interviewing other passengers, Officer Globensky noticed that the accused had recovered her luggage and was walking in his direction. He called out to her and identified himself as a CBSA officer. She told him that she was coming from Bridgetown (Barbados) where she had spent a week on vacation.

She further mentioned that she was originally from Barbados and had gone there to rest and see family members. [ 18 ] Officer Globensky observed that she had three suitcases on her cart in addition to what appeared to be a purse. He asked her if her trip had been booked long before her departure.

She replied that she did not know and then added that it had not been long before. [ 19 ] According to Officer Globensky, during their brief interaction [7] , the accused seemed to be giving thought to her answers, appeared hesitant and was avoiding eye contact. [ 20 ] Given the accused’s answers, her general demeanor and the number of suitcases she was carrying for a one-week vacation in the Caribbean, Officer Globensky made a pink line on her declaration card [8] to indicate that he was referring her to secondary inspection. c. secondary inspection and detention [ 21 ] CBSA Officers Maxime Sauriol (“Officer Sauriol”) and Hamza Bouhabel (“Officer Bouhabel”) were working in tandem at counter n° 4 at the secondary inspection area.

They were tasked with examining suitcases of passengers referred to secondary inspection. [ 22 ] The accused came to their counter and produced her passport and declaration card. She first interacted with Officer Sauriol and greeted him in a friendly manner. Officer Sauriol asked her where she was coming from. She said Bridgetown which is in Barbados.

He then examined her passport and declaration card. [ 23 ] The accused asked Officer Sauriol if there was something incorrect with her declaration card, to which he responded that he was proceeding with a routine verification. [ 24 ] On the passport, Officer Sauriol noticed that the accused had traveled to Barbados on more than one occasion. One of the stamps on the passport was dated March 21 st , 2018, corresponding to the most recent date of entry in Barbados [9] . [ 25 ] Officer Sauriol questioned the accused as to the purpose of her most recent trip to Barbados as well as prior ones.

She explained that the current trip was to visit her mother and that previous trips were in relation to the illness and eventual death of her father. Asked who paid for the plane ticket for the current trip, she responded that she had paid for it herself. [ 26 ] Officer Sauriol then asked what her occupation was. She first replied that she was a manager at a retail store and, upon further questioning, clarified that she was an assistant manager at “Stokes”.

She seemed uncomfortable with the question and ended visual contact. [ 27 ] The accused carried two registered suitcases: one blue duffel bag [10] ; the other a regular purple suitcase [11] . She also had a carry-on bag and a purse. She was asked the following four questions in connection with her luggage: 1. Is this your own luggage?

2. Do you know the contents of the luggage? 3. Did you pack it yourself? 4. Are there any dangerous or sharp objects in your luggage? [ 28 ] The accused answered “Yes” to the first three questions and “No” to the last one. [ 29 ] Officer Sauriol began the inspection of the accused’s luggage by opening the blue duffel bag. Inside, he observed an empty red travel bag [12] which was flattened and placed on the upper part of the blue duffel bag. The red bag looked like it had never been used. [ 30 ] Officer Sauriol began handling the inside of the red travel bag. He quickly noticed an anomaly.

It appeared to him as if there were two layers at the bottom of the bag. The lower layer seemed very solid, like wood. The upper layer was dense but slightly malleable. Officer Sauriol brought this to the attention of the accused. She did not react much, her facial expression changed, she stayed motionless and merely said in a feeble voice: “Ha yeah”? [ 31 ] Officer Sauriol submitted the red travel bag to an x-ray examination to verify its content. The x-ray results were inconclusive [13] . He brought the bag back in front of the accused and continued manipulating it. The accused did not react.

Referring to the red travel bag, he asked her how long she had had it for. She replied: “A year and a half”. [ 32 ] Because Officer Sauriol was unable to insert his fingers between the two layers [14] , he sought assistance from Officer Bouhabel who was, at the time, dealing with other air travelers. It was approximately 8:20 pm by then. [ 33 ] Together, they proceeded to cut the bottom of the red travel bag open with a knife. They discovered a large rectangular-shaped package wrapped in black electrical tape [15] . Fabric softener sheets were also visible on the top of the package [16] .

According to Officer Bouhabel, at that point, it was around 8:35 pm. [ 34 ] Officer Sauriol placed the accused under detention. He cautioned her and advised her of her right to counsel. She stated: “What is happening”? Officer Sauriol told her he had reasonable grounds to believe that she was smuggling goods into Canada [17] . He then handcuffed her. Her hands were shaking. [ 35 ] Officer Bouhabel grabbed all of her belongings and they made their way to the search room. The accused asked to exercise her right to counsel.

She was put in contact with Legal Aid and communicated with counsel to her satisfaction. d. discovery of the drugs and subsequent search by CBSA Officers [ 36 ] While the accused sat nearby, Officer Sauriol made an incision in the package with a probe pen. A white powder exited. He performed a cocaine wipe test on the powder. The test confirmed the presence of cocaine [18] . Officer Sauriol announced the result of the test to the accused. She displayed no reaction and did not seem surprised. [ 37 ] The officers then opened the purple suitcase.

Inside, they found an empty brown travel bag [19] which was also compressed and placed in the upper part of the suitcase. Except for its colour, the brown travel bag was identical to that found in the blue duffel bag [20] . Its bottom shared the same distinctive features as the red travel bag. [ 38 ] Officer Bouhabel asked the accused if they were going to find the same thing as in the empty red travel bag. The accused asserted her right to remain silent. [ 39 ] Officer Sauriol cut the bottom of the empty brown bag open. Much like the empty red bag, he observed a large rectangular-

shaped package [21] wrapped in black electrical tape with fabric softener sheets on its surface [22] . He made an incision in the package with a probe pen. White powder emerged. The cocaine swab test was also positive [23] . Again, the accused made no comments. [ 40 ] The officers then took a full inventory of the accused’s belongings. [ 41 ] Officer Bouhabel noticed the presence of a softener sheet inside the purple suitcase close to where the empty brown bag had been found. He asked the accused for the brand of the softener sheets – whether they were “Febreze” or “Bounce”? [24] She answered: “Bounce”.

According to Officer Bouhabel’s notes, it was 9:41 pm when she provided this reply. [ 42 ] While taking an inventory of her luggage, the officers found 6 tin cans of vegetarian sausages. They opened 2 cans and informed the accused that they were going to open the other 4 cans.

The accused stated something along the lines of: “Those cost 10$ each, make sure you write that somewhere” [25] . [ 43 ] In the purple suitcase, the officers found frozen flying fish wrapped in newspaper [26] , as confirmed by the accused during the search. [ 44 ] Aside from the cocaine in the false bottom of each travel bag, no other illicit substances were found during the inventory search of the accused’s belongings. Likewise, none were found during the strip search she agreed to submit to. [ 45 ] Officer Bouhabel weighed the two empty travel bags.

The red travel bag weighed 8.58 pounds while the brown travel bag weighed 8.10 pounds [27] . [ 46 ] The officers described the accused’s general behaviour during the search as uninterested and non-reactive. e. seizure of evidence by RCMP [ 47 ] Once the CBSA officers completed their inventory, the accused was turned over to the RCMP. She was brought to a RCMP detachment where she was advised of her rights and again spoke to counsel. [ 48 ] RCMP Constable Jennifer Tameo (“Constable Tameo”) was assigned to lead the investigation.

In the early hours of March 30 th , 2018, she received a phone call from CBSA officers advising her that the accused’s belongings were ready for pick-up. [ 49 ] Constable Tameo went to the airport to collect the accused’s belongings, including both empty travel bags. She brought them back to the detachment for inspection. She eventually took some photographs of the various items of evidence [28] .

So did the RCMP identification unit [29] . [ 50 ] In addition to the two empty travel bags with false bottoms [30] , Constable Tameo seized, amongst other things, the accused’s Canadian passport [31] , her boarding passes [32] , her luggage tags [33] , a handwritten note, a “Western Union” money transfer receipt and her cell phone.

The CBSA provided her with the accused’s travel history [34] . [ 51 ] Further examination of the two empty travel bags confirmed the presence of the following quantities of cocaine in the false bottoms: 1.180 kilogram in the red bag and 1.228 kilogram in the brown bag for a total of 2.408 kilograms. The cocaine found in the accused’s belongings was valued between $118,080 and $137,760 if sold by the kilogram [35] . [ 52 ] The passport discloses that it was issued on September 14 th , 2017.

The accused entered Barbados on three different occasions within a relatively short period of time: on September 17 th , 2017 (with October 1 st , 2017 as a return date to Canada [36] ); on December

31 st , 2017 (with January 15 th , 2018 as a return date to Canada [37] ); and finally on March 21 st , 2018. [ 53 ] The boarding passes show that on March 21 st she first flew from Ottawa to Toronto and then from Toronto to Barbados. She returned to Canada via Montreal on March 29 th and was scheduled to fly to Ottawa that same evening. [ 54 ] The luggage tags reveal that the accused registered two items of luggage on her March 21 st flight to Barbados. [ 55 ] The handwritten note was found in the accused’s personal belongings. Constable Tameo was unable to recall where exactly.

The note states the following: pay off debts put a down payment on a house quit living paycheck to paycheck have money for medical bills find a better way to earn money save for retirement travel buy a new car spend more time with family [38] [ 56 ] The “Western Union” money transfer receipt is dated March 27 th , 2018. The amount of money sent is $2,000.00 (Barbados currency) which corresponds to $1,221.20 CDN. The money was sent to Canada. The sender is Joan R. Dallaway, resident of Vauxhall, Oistins, Christ Church, Barbados.

The receiver is Shyheim Edwards [39] . [ 57 ] The police extracted data from the accused’s cell phone. The Crown produced excerpts of both “WhatsApp” [40] and text messages [41] . [ 58 ] The “WhatsApp” messages were exchanged between the accused and an individual whose account is under the name of “Kaia Benjie”. They cover the period from March 13 th to March 28 th , 2018 and include references to the accused’s trip to Barbados.

Their content shows that it was Kaia Benjie who booked the accused’s round-trip flight to Barbados – the booking was confirmed by her on March 19 th [42] . [ 59 ] Constable Tameo testified that the name of the accused’s mother as appears on “Facebook” is “Kaia Benjie”. [ 60 ] As for the text messages [43] , the Crown conceded that only some bear relevance to its theory.

The Crown placed emphasis on the following exchanges the accused had with: Samantha Campbell on March 20 th and 26 th , regarding an event scheduled on March 27 th [44] ; DJ Chris on March 21 st (around midnight), in relation to a request for a phone a few hours before departure time [45] ; her children, friends and boss on March 21 st , in which she notifies them of her departure on the same day for a week-long trip [46] ; Shyheim Edwards and Jessica Chenier on March 26 th and 27 th , concerning a money transfer to pay an outstanding water bill [47] .

[ 61 ] The Crown argued that the “WhatsApp" messages can assist the trier of fact in drawing inferences pointing to the accused’s knowledge that she was carrying a controlled substance in her luggage. In fact, the Crown views the messages as evidence of economic motive, planning and financial reward for transporting the drugs. [ 62 ] This will be addressed in further detail in the course of my analysis. For now, I will turn my attention to the account of the accused. Defence evidence: the testimony of the accused - Background information [ 63 ] The accused was 38 years old at the time of the events.

She grew up in Barbados. She immigrated to Canada in 1994 at the age of 14. She first lived with her aunt in Winnipeg and later moved to Ottawa where she currently resides. Her parents stayed in Barbados along with her three brothers. [ 64 ] The accused’s mother is Joan Dallaway-White. She has been going by the nickname “Kaia Benjie” for her entire life. She appears on one of the screen-shots taken from the accused’s cell phone [48] . She resides in Vauxhall, in the province of Christ Church (Barbados).

The accused has remained close to her mother. [ 65 ] The accused’s father, Winston White, passed away in Barbados on December 28 th , 2017 [49] . The funeral took place in Vauxhall on January 11 th , 2018 [50] . The accused’s parents had been in a relationship for forty years. [ 66 ] The accused is a single mother of three children: Shyheim Edwards, Kamar Edwards and Olivia Bailey, aged respectively 21, 16 and 10 years old in 2018. She rents a four bedroom townhouse. She has been living there with her children for the past 6 years.

Shyheim’s girlfriend, Jessica Chenier, also lives there, as was the case in March 2018. - The accused’s financial situation [ 67 ] The accused works as a property administrator since October 2018. At the time of the alleged offences, she was employed as an assistant-manager at “Stokes” and earned $14.25 an hour for 37 hours a week. She also worked an average of 15 hours a week in a beauty supply store on an as needed basis. [ 68 ] In terms of her monthly cost of living, the accused paid rent in the amount of $1600. The water bill amounted to approximately $300-400. The electricity bill was around $100.

Expenses for TV, internet and the phone land line ranged from $200 to $300. Her cellphone bill neared $65 plus taxes. The accused estimated groceries to cost around $500 to $600. Her house was not insured and she did not own a car. [ 69 ] Prior to leaving for Barbados on March 21 st , 2018, the accused had outstanding water and phone bills – the former in the amount of $1600; the latter in the amount of $1220.13 [51] . She was aware, at the time of departure, that she owed that money. [ 70 ] Both Shyheim and Jessica worked part-time in 2018 and contributed to some extent to expenses.

However, the accused was essentially the sole provider of the household. She testified that her financial situation was always tight. - Earlier trips to Barbados [ 71 ] The accused traveled to Barbados from September 17 th to October 1 st , 2017 because her father fell gravely ill and underwent

emergency surgery. She booked her plane ticket within the week prior to departure. She paid for the ticket over the phone with a debit card. Given that her passport had expired, she applied for a new one after booking her plane ticket. The new passport was issued three days before leaving for Barbados. [ 72 ] The accused returned to Barbados on December 31 st , 2018 because her father passed away two days earlier. Again, she paid for the plane ticket with her debit card. The price of the ticket was approximately $800. She stayed in Barbados for close to two weeks in order to attend her father’s funeral.

She left three days after the ceremony. - Ahead of the March 2018 trip to Barbados [ 73 ] Early in March 2018, the accused contemplated returning to Barbados in order to visit her family, especially her mother who was going through difficult times due to her spouse’s recent death. Her birthday was coming up on March 25 th and she wanted all her children in attendance.

The accused and her mother began planning for the upcoming trip, including through “WhatsApp” messages [52] . [ 74 ] On March 16 th , the accused’s mother asked her to check the price for plane tickets [53] – a request she reiterated on March 18 th [54] . On that date, the accused replied: “April 7-21 is the cheapest I can get right now at 893 cnd” [55] . On March 19 th , her mother wrote that she had booked a flight for her from March 21 st to 29 th and that she would provide her with the ticket information the following day [56] .

She paid for her daughter’s round-trip ticket [57] . [ 75 ] Prior to leaving for Barbados, the accused exchanged text messages with a friend of hers, Samantha Campbell. On March 20 th , Samantha Campbell forwarded to the accused a message sent to her by “Joan Robinson” on March 14 th . Joan Robinson’s message to Samantha Campbell also included a forwarded message written by an individual named Godwin. In that message, Godwin referred to an event which was postponed to March 27 th .

In her message to Samantha Campbell, Joan Robinson wrote to that she should book that day off to be prepared [58] . [ 76 ] Upon receiving this forwarded message, the accused texted Samantha Campbell and asked her where and at what time the event was going to take place on March 27 th [59] . Samantha Campbell replied that she was unsure and was going to find out [60] . [ 77 ] The accused provided some context to this exchange. She explained that around March 15 th she had gone with Samantha Campbell to a job fair to hand out résumés. But nobody was there. The job fair seemed to have been cancelled.

She understood Samantha Campbell’s forwarded message as indicating that the job fair had been postponed to March 27 th . She does not know who Joan Robinson or Godwin are. [ 78 ] A few hours after exchanging text messages with Samantha Campbell, the accused texted another friend of hers, known as “DJ Chris”. It was shortly past midnight on March 21 st , several hours before boarding the plane to Barbados. In the message, she wrote: “Hey, I need a phone” [61] . The accused testified that she needed a phone for her brother in Barbados – his was broken.

She specifically asked “DJ Chris” because he knew a lot of people. [ 79 ] Later that morning, the accused texted Shyheim Edwards, Jessica Chenier, and Kamar Edwards to let them know that she was leaving for a week.

To both Shyheim and Jessica, she wrote “Hey guys, this is very last minute I only found out yesterday and I was going to tell you about it last night but I will be away for the week until next Thursday” [62] . [ 80 ] Around the same time, the accused texted her boss at “Stokes”, Tina, and wrote the following: “Hey, sorry for messaging you this early in the morning and for the inconvenience but I have an urgent matter and will be away until the 29 th [63] . The exact same message was sent to phone number 613-400-4448 [64] .

The accused also informed her friend, Chery Mary-Line, that she was leaving for a few days [65] . [ 81 ] According to the accused, she boarded the plane with only one registered item of luggage. The purple suitcase was already in Barbados at the time.

- While in Barbados from March 21 st to March 29 th , 2018 [ 82 ] The accused landed in Barbados on the afternoon of March 21 st . She spent the following days visiting relatives and friends, picking-up her nephews and nieces at school, helping her mother out at her food store and preparing for her birthday celebration. According to the accused, the celebration took place on a Sunday (which would be March 25 th ). [ 83 ] On March 26 th , the accused received a text message from Jessica Chenier advising her that the water had been cut off and asking her whether she had paid the water bill [66] .

The accused replied that she had only partially paid the bill and that she was going to seek out further information [67] . [ 84 ] She was eventually told that she had to pay the full outstanding amount, $1600, before 4 pm on March 27 th in order to have the water back on. She advised Shyheim and asked him how much money he had [68] . He stated that he had $306 and not much on his credit card [69] . [ 85 ] As a result, the accused decided to transfer money to her son from Barbados. On March 27 th , she went to the bank with her mother to withdraw cash. The money was taken from her mother’s account.

They then drove to Western Union to proceed with the money transfer. The accused, through her mother, sent $1222.10 to her son [70] . [ 86 ] Later the same day, Shyheim confirmed having received the money [71] and having paid the water bill [72] . The next day, March 28 th , Shyheim texted his mother to let her know that the water was running again [73] . - Hours prior to departure – the morning of March 29 th , 2018 [ 87 ] On the morning of her departure, the accused packed her luggage. She was initially going to return to Canada with only one suitcase but changed her mind.

In the end, she decided to bring back the purple suitcase left behind in Barbados from a previous trip with some belongings in it. The accused divided her personal effects evenly between the two items of luggage. [ 88 ] A long-time friend of the accused and her family in Barbados, identified as David Fraser, asked her if she could drop off two empty bags to relatives in Canada. The accused accepted because they were empty bags and she still had space available in her luggage. She had no problems doing that favor for David Fraser.

She did not consider him to be a bad person in any way. [ 89 ] Between 10:30 and 11:00 am, David Fraser came over to bring the two bags: one was red; the other tan brown. Both bags were empty and already compressed. David Fraser told the accused that the bags were destined to his cousin, Kelvin Watson, in Toronto and that he would come fetch the bags in Ottawa. He did not specify when he would do so. [ 90 ] The accused told David Fraser to give her phone number to his cousin and to have him call her when he would be ready to pick them up. Kelvin Watson was a complete stranger to her.

She had never met him in the past. [ 91 ] The accused did not ask David Fraser why his cousin wanted the bags or whether there was anything inside them. To her, it was clear that the bags were empty. As such, she did not think anything of David Fraser’s request and did not feel the need to inquire further.

She did not find it suspicious that she was being asked to bring two empty bags to Canada destined to a person in Toronto who would have to go all the way to Ottawa to pick them up. [ 92 ] Given that the accused had already finished packing her luggage, she placed each empty bag on top of the contents of each suitcase. She did not have to move things around to make them fit. Aside from placing them in her luggage, the accused never manipulated or opened the bags. They did not feel heavier than regular empty bags and did not contribute much to the weight of her luggage.

[ 93 ] Afterwards, the accused went to the airport with her mother. At the airport, the accused checked-in two items of luggage. She boarded the plane to Montreal with a carry-on bag and her small purse. - At Pierre-Elliott Trudeau International Airport [ 94 ] The accused landed in Montreal at around 8:00 pm. She made her way to the kiosk where air travelers submit their declaration card and get a receipt. [ 95 ] In her declaration, the accused ticked the FPA box because she had frozen flying fish wrapped in newspaper in her luggage. She brought it back because it is part of Barbados’ national dish.

She had done so on prior trips. [ 96 ] With her receipt in hand the accused waited in line for primary inspection. She was called to a booth. The officer at the booth greeted her. She gave him her passport, boarding pass, and the receipt of the declaration card. He asked her standard questions. She answered them and told him she was carrying fish products. He gave her back the documents she had submitted. The accused then headed to the luggage carousel area. [ 97 ] At the carousel, the accused waited for her luggage for approximately 15 minutes. She spent most of this time checking her phone.

When she grabbed her belongings to get to her connecting flight, a customs officer stopped her and asked for her passport. He then requested that she proceed to the customs line. [ 98 ] The accused waited in line until a customs officer called her turn. She stepped forward and provided the officer with the requested paperwork. The officer asked her all the usual questions such as: “Where are you coming from? How long was you stay”? “Where are you heading to”? etc. [ 99 ] The accused answered all the questions. She was not worried. She thought it was a routine situation.

There was nothing particular until the officer requested permission to go through her luggage. [ 100 ] The officer first searched the blue duffel bag. He found the empty red bag on top of her belongings. He opened it and began squeezing the edges. He stated that it felt odd. The accused basically replied: “Ok, I don’t make the bags so I don’t know”. The accused had no recollection as to whether the officer asked her how long she had had the red bag (or any other bag) for. [ 101 ] The officer informed the accused that he had to send the red bag for X-rays.

When he came back, he asked her whether she had packed her suitcase herself and if it had been tempered by anybody. The accused indicated that she was the only one who had access to her luggage during packing. [ 102 ] The officer mentioned that he needed a knife in order to cut the bottom of the red bag open because it was too thick. He sought assistance from a colleague. The accused shrugged her shoulders because she did not know how thick a bottom of a bag was supposed to be. [ 103 ] Once the bottom of the bag was cut open, the accused observed a black lining – something wrapped in black tape.

She stated to the officer that she did not know what it was. [ 104 ] The accused was subsequently placed under detention and handcuffed. There was not much she could say at that point. She then exercised her right to counsel in a private room. Upon speaking to counsel, the accused returned to the search room. [ 105 ] The officers undertook an exhaustive inventory of all her belongings. They found the empty brown bag on top of the contents of the purple suitcase.

After scrutinizing the inside of the brown bag, the officers poked its bottom with a needle. [ 106 ] One of the officers directed her attention to the presence of fabric softener sheets and asked her the following question: “Do

you know what this is”? She answered: “Bounce”. The accused denied that the officer specifically asked her whether the dryer sheets were “Bounce” or “Febreze”. She was adamant that there were no such sheets in her luggage aside from those inside the false bottoms of the two empty bags. [ 107 ] During the inventory, the officers put various questions to the accused. She either replied with a “Yes” or a “No” or simply remained silent as instructed by counsel. She stayed seated throughout the inventory.

However, when the officers opened the sausage cans, the accused did say something to the effect that they were worth 10$ each. [ 108 ] Once the inventory was completed, the accused was strip-searched and then brought to the RCMP detachment for further questioning. She did not say much as she continued to follow her lawyer’s advice. IV.

GOVERNING PRINCIPLES The alleged offences [ 109 ] For the accused to be found guilty of importing, the Crown must prove beyond reasonable doubt that: - she physically brought a controlled substance into Canada; and - she knew that she was bringing a controlled substance into Canada [74] . [ 110 ] For the accused to be found guilty of possession for the purpose of trafficking, the Crown must prove beyond reasonable doubt that : - she was in possession of a controlled substance; - she knew that she was in possession of a controlled substance; and - she was in possession of a controlled substance for the purpose of trafficking [75] . [ 111 ] The mens rea for both offences requires knowledge that the substance is a controlled substance although not necessarily knowledge of the exact type of narcotic. [ 112 ] The fact that the accused physically brought a controlled substance into Canada and that she was in possession of cocaine is not in dispute.

Nor is the fact that the quantity of cocaine found in her luggage is sufficient to establish that it was destined to be trafficked. [ 113 ] For both offences charged, the central issue is whether the accused had the requisite knowledge. [ 114 ] Knowledge may be proven on the basis of actual knowledge or wilful blindness. Where knowledge is a component of the mens rea , wilful blindness can substitute for actual knowledge [76] . [ 115 ] Proof of actual knowledge or wilful blindness requires a subjective assessment of the issue.

The question is “what did the accused know”, not “what ought s/he to have known” [77] . [ 116 ] Wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in wilful blindness is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry [78] .

[ 117 ] Actual knowledge, like wilful blindness, is a state of mind. Generally speaking, absent an admission by the person of that state of mind, its existence must be determined on the basis of circumstantial evidence.

Circumstantial evidence [ 118 ] The Crown’s evidence that the accused had knowledge (actual knowledge or wilful blindness) that she was carrying a controlled substance in her luggage is circumstantial. [ 119 ] Where the Crown relies upon circumstantial evidence in support of a finding of guilt, in order to convict, I must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from proven facts [79] . [ 120 ] When deciding whether the only reasonable inference is that the accused is guilty , I must consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt [80] . [ 121 ] This duty is not limited to considering only reasonable inferences that arise from proven facts.

A gap in the evidence, or an absence of evidence, may support a reasonable inference other than guilt, if the inference is supported by logic, common sense and human experience [81] . [ 122 ] Consequently, I am required to consider whether any reasonable inferences other than guilt arise from the application of common sense and human experience to the evidence and the absence of evidence. [ 123 ] While the Crown may need to negate “other reasonable possibilities”, it does not need to negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused [82] . [ 124 ] However, if there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt [83] . [ 125 ] In assessing circumstantial evidence, I must keep in mind that such evidence is not to be evaluated piece by piece but rather cumulatively. [ 126 ] In the case at bar, guilt is contingent upon a finding of knowledge (actual knowledge or wilful blindness).

To convict, I must therefore be satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the evidence (proven facts) is that the accused knew that she was carrying drugs in her luggage. Assessing credibility and reliability [ 127 ] T he account of CBSA officers and that of the accused diverge in areas relevant to the issue of knowledge.

In addition, the testimony of the accused, if true, is capable of preventing the Crown from proving beyond a reasonable doubt the mental element of the alleged offences [84] . [ 128 ] Credibility and reliability are therefore significant issues in this case. As such, I am required to consider the three-prong test for analyzing evidence outlined in R . v. W.(D .) [85] . [ 129 ] In applying the principles set out in W.(D .), I must be mindful of the presumption of innocence and its inextricable link to the concept of reasonable doubt [86] .

There is no onus on the accused to prove anything and the burden of proof never shifts to the

accused [87] . [ 130 ] Guilt must be proven beyond reasonable doubt. While this burden of proof does not require absolute certainty, it is not enough to believe that the accused is likely or probably guilty. T he reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities [88] . [ 131 ] Credibility and reliability go to the heart of this case . Although both concepts are often intertwined to a certain extent, they do remain fundamentally different.

Credibility relates to the witness himself and to his truthfulness, veracity and integrity, while reliability relates to the accuracy and quality of his account [89] . [ 132 ] I must carefully avoid engaging in a “credibility contest”. In other words, a criminal allegation cannot be resolved by simply choosing between conflicting accounts. Doing so would shift the burden of proof to the accused or lower the standard of proof resting with the Crown [90] . [ 133 ] At all stages of my analysis, I must consider the evidence as a whole.

The evidence heard at a trial is not to be compartmentalized in watertight partitions, to be assessed in a piecemeal fashion [91] .

I may believe some, none, or all of the testimony of any witness, including that of the accused. [ 134 ] Even if the accused is disbelieved, whether partially or entirely, and I am not left in a reasonable doubt by the evidence of the accused, in order for there to be a finding of guilt, I must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty [92] . [ 135 ] Simply put, mere disbelief of the evidence tendered by the accused does not equate to proof beyond reasonable doubt of her guilt. V.

ANALYSIS [ 136 ] The Crown contends that the accused had actual knowledge of the drugs found in her luggage or, alternatively, that she was wilfully blind to their presence. [ 137 ] I will first determine whether the Crown proved beyond reasonable doubt that the accused had actual knowledge of the presence of drugs in her luggage. If not, I will assess whether the Crown has proved beyond reasonable doubt that the accused was wilfully blind to their presence. - Whether the Crown established actual knowledge? [ 138 ] Counsel for the accused does not question the overall credibility of CBSA officers.

Rather, he is of the view that segments of their respective testimony raise reliability concerns. The Crown strongly challenges both the credibility and reliability of the accused’s testimony. [ 139 ] Upon examination of the evidence, I do not entirely believe that the account of the accused is an accurate rendition of what happened, mostly because of the following problematic portions of her testimony. [ 140 ] As examined below, some features of the accused’s testimony are inconsistent with aspects of the evidence provided by CBSA officers.

[ 141 ] According to Officer Robert, the accused stated that she was carrying three suitcases, including an empty one. She explained that she was carrying an empty bag because she had planned to bring back belongings from Barbados left behind during an earlier trip but changed her mind. [ 142 ] Officer Robert’s testimony to that effect was detailed and unchallenged. I accept it as credible and reliable.

In addition, the fact that the accused was carrying three items of luggage (the blue duffel bag, the purple suitcase and a carry-on bag – “Hollywood brand multicolored”) is supported by other evidence – notably that tendered by Officers Sauriol and Bouhabel. [ 143 ] Yet, the accused testified that she finally decided to bring back belongings left behind in Barbados from a prior trip, albeit in the purple suitcase.

In my view, this part of her testimony conflicts with the explanation given to Officer Robert. [ 144 ] Likewise, upon being asked by Officer Globensky if she had booked her ticket long before departure time, the accused initially replied that she did not know. After some hesitancy, she added that it was not long before. [ 145 ] While Officer Globensy’s distant observations at the carousel may be cause for concern, I have no reason to discard his account of his conversational interaction with the accused.

Given that I accord credit to this part of Officer Globensky’s testimony, I find that the answer the accused initially provided to him was misleading in that it is contradicted by the rest of the evidence. [ 146 ] Indeed, “WhatsApp” messages clearly indicate that the accused’s mother informed her on March 19 th that she had booked her ticket – something the accused herself confirmed in her testimony.

Consequently, to have stated to Officer Globensky that she did not know when her ticket was booked negatively impacts her credibility. [ 147 ] According to Officer Sauriol, the accused told him that she paid for the plane ticket herself. I have no reasons to call into doubt this area of Officer Sauriol’s testimony. He provided a thorough and structured account of his interaction with the accused which she confirmed for the most part. [ 148 ] Despite not recalling whether he inquired further into this issue, Officer Sauriol was fairly confident that the accused stated having paid for the ticket herself.

Again, both “WhatsApp” messages and the accused’s testimony demonstrate that her statement to Officer Sauriol was misleading, thus further undermining her credibility. [ 149 ] Moreover, Officer Sauriol claimed that the accused asked him if there was something wrong with her declaration card. On the other hand, the accused testified that she was not worried at that stage and thought that secondary inspection was a routine procedure. [ 150 ] Given my earlier assessment of Office Sauriol’s testimony, this item of conflicting evidence should be resolved in his favor.

I find that the accused attempted to downplay any nervousness in an effort to avoid negative inferences to be drawn from her demeanour while interacting with customs officers. [ 151 ] Officer Sauriol testified that the accused was essentially silent throughout the inspection and made no comments upon the discovery of the package in the false bottom of the empty red bag. Officer Bouhabel testified to the same effect.

In contrast, the accused claimed that she verbalized her lack of knowledge as to the presence of the package in her luggage. [ 152 ] The fact that the accused would have voiced her lack of knowledge does not accord with the rest of the evidence. The CBSA officers described the accused as being generally impassive and reluctant to volunteer information. As well, the accused’s testimony lends support to some of the observations made by the officers.

In her account, she confirmed providing rather succinct answers to the questions posed by the officers. [ 153 ] Let us recall for instance that she responded to Officer Sauriol’s inquiries by merely stating that she did not make bags and even shrugged her shoulders when asked about the thickness of the false bottom. She also testified that there was not much to say as she was being placed under detention – prior to communicating with counsel – and that it was best not to say anything.

[ 154 ] As a result, I do not give credit to her claim that she explicitly denied knowledge of the package in the empty red bag. I accept Officer Sauriol’s testimony that she essentially stayed mute when they cut the bottom of the empty red bag open.

I find it incongruous that she kept silent then, but later voiced a concern when the officers opened her sausage cans [ 155 ] The accused’s answer to Officer Sauriol’s inquiry as to the ownership of the empty red bag also weighs in my assessment of her credibility. [ 156 ] According to Officer Sauriol, the accused stated that she had had the red bag for a year and a half. Pressed on this issue, Officer Sauriol asserted that he was referring to the red bag when he questioned the accused. During her testimony, the accused offered no denial.

She claimed not to recall being asked this question. [ 157 ] The accused’s alleged lack of memory on that issue is in stark contrast with her ability to recall numerous details throughout her testimony, especially about her trip to Barbados, messages exchanged with friends and relatives prior to and during her trip, the sequence of events at the airport and other facets of her interaction with CBSA officers. [ 158 ] I therefore find it convenient that she would have a memory lapse in relation to an item of evidence with incriminating potential.

As such, I do not believe that she has no recollection of being asked the question. I accept Officer Sauriol’s testimony that she answered “a year and a half”. Whether I am entirely convinced that her answer was in reference to the empty red bag is another matter – to be addressed at a later stage of my analysis. [ 159 ] I also take into consideration that the accused omitted to refer to David Fraser when asked by Officer Sauriol whether she had packed her luggage herself or, as she alluded to in her own testimony, when he asked her whether the bags had been tampered with by anybody.

At the time, she was not yet detained, cautioned or instructed by counsel to remain silent. [ 160 ] In addition to these inconsistencies with the evidence tendered by CBSA officers, other aspects of the accused’s version raise credibility concerns. [ 161 ] For instance, the accused indicated that her trip to Barbados was foremost to visit her mother because she was experiencing difficult times. It was especially important to her mother to have all her children in attendance for her birthday celebration on March 25 th . [ 162 ] Yet, the accused looked into plane tickets for the month of April [93] .

I find it rather odd that the accused would give consideration to flights in April when the main purpose of her trip, as claimed in cross-examination, was to attend her mother’s birthday celebration on March 25 th .

The accused attempted to justify this oddity by stating that the April tickets were the cheapest at that time. [ 163 ] This explanation is unconvincing for two reasons: (1) her mother was paying for the ticket; and (2) the accused acknowledged that she prioritized visiting her mother over paying outstanding bills. [ 164 ] As reflected in the evidence, the accused found out on March 19 th that her mother had booked a plane ticket for March 21 st to March 29 th [94] .

Still, she texted Samantha Campbell on March 20 th to ask her where and at what time the event was supposed to take place on March 27 th [95] . [ 165 ] When she sent this text message, the accused already knew she was going to be abroad on March 27 th . The fact that she inquired as to the whereabouts and

schedule of a job fair while knowing that she would not be able to attend somewhat defies logic – much like her failure to advise Samantha Campbell in the same text message that she would not be attending. [ 166 ] In the same vein, the accused’s explanation as to why she texted DJ Chris to ask him for a phone [96] is unpersuasive. She claimed that it was for her brother in Barbados whose phone was broken. Despite texting a good friend of hers who knew her family, she did not write that the phone was for her brother. More significantly, although her text message bears the characteristics of an urgent last

minute late night request, she testified that there was no emergency to it. This is implausible. [ 167 ] In cross-examination, the accused was questioned as to why she waited so close to departure time to inform her immediate family, her friends and her boss that she was leaving for a week. She replied that it was because the entire trip was last minute and she did not consider her mother’s message on March 19 th as being a firm confirmation of her travel dates. [ 168 ] I am not satisfied by this answer.

The accused began planning her trip to Barbados at least a couple of weeks before leaving as she intended to be there for her mother’s birthday. As of March 19 th in the morning, she knew she was set to leave on March 21 st . Her mother’s message is unequivocal. She wrote “I book the flight 21 st 29 th so start packing ” [97] . [ 169 ] While it is true that her plane ticket was booked not long before departure time, it was not booked the evening before nor the morning of.

Given her close relationship with her children and the fact that they lived under the same roof, I fail to understand why she notified them of her trip only a couple of hours before boarding. [ 170 ] In her text messages, the accused did not even mention the purpose of her trip. To both Shyheim and Jessica she specifically wrote: “[…] this is very last minute I only found out yesterday ” [98] . The booking was perhaps late but not very last minute and “yesterday” referred to March 20 th , not March 19 th , the day on which her mother made her aware of her travel dates and told her she could start packing [99] .

The accused’s text message to Shyheim and Jessica was misleading and her testimony on this issue lacked coherence. [ 171 ] Similarly, the accused’s explanation as to why she wrote to her boss that she was leaving on an urgent matter [100] does not stand.

While it may be argued that she received late confirmation of her travel dates, this time around there was no urgent matter to attend to in Barbados. [ 172 ] Despite claiming that she still had vacation days in her bank, the accused chose not to discuss her travel plans to Barbados with her boss in person and ahead of time, opting instead for a last minute warning justified by a so-called urgent matter. [ 173 ] On a different note, the accused first testified that she registered only one item of luggage on her flight to Barbados on March 21 st . This statement is contradicted by material evidence.

Luggage tags and the airport fee receipt [101] dated March 21 st disclose that she checked in two suitcases. When confronted in cross-examination, the accused conveniently alleged that she could no longer remember whether she registered one or two items of luggage on her way to Barbados. This amounts to an internal inconsistency. [ 174 ] Lastly, the accused initially testified that David Fraser asked her to drop-off [102] the two bags with a relative of his in Canada. Later, she stated that David Fraser’s cousin was going to fetch them in Ottawa.

Dropping-off the bags and having them picked-up do not carry the same significance. [ 175 ] At first glance, this may appear as a minor contradiction.

However, when viewed against the backdrop of the cumulative discrepancies noted in the accused’s testimony, it becomes, in my view, a significant internal inconsistency – one which undermines the accuracy of her account as to the context in which she came into possession of the bags and what was discussed with David Fraser in the process. [ 176 ] For the foregoing reasons, I cannot give full credit to the exculpatory part of the accused’s testimony. [ 177 ] This is not to say that I reject her version altogether. Quite the contrary, there are various segments of her testimony that I do accept.

I will address them below within the second stage of the W.(D.) inquiry. [ 178 ] First, some brief comments about the accused’s demeanor during her testimony are warranted. [ 179 ] Notwithstanding my earlier credibility findings, the accused, for the most part, provided a detailed account of the circumstances surrounding the alleged offences. Her narrative was conveyed eloquently and in an orderly manner.

[ 180 ] She remained composed and steady throughout her testimony. There was no abrupt change in attitude when one party was questioning her as opposed to the other. The way she testified does not support an inference that her account was entirely concocted. [ 181 ] Some of the elements of her testimony I do accept are uncontested or hardly disputable.

Such is the case for the background information the accused provided in relation to her country of origin, her immigration to Canada, her family situation, her living arrangements as well as her employment and financial status (including her debts at time of departure). [ 182 ] But I also give credit to features of her testimony that are more contentious. They are as follows. [ 183 ] I do not doubt that the accused’s mother, siblings and extended family live in Barbados. Nor do I question the fact that her father passed away in Barbados on December 28 th , 2018 (at the age of 69).

The accused initially stated that her father passed on December 29 th at the age of 59. I do not take this error as a sign of unreliability. It was only a momentary lapse. [ 184 ] I have also no reason to dismiss the accused’s assertion that her mother’s name is Joan Dallaway and that she goes by the nickname “Kaia Benjie”. The accused identified her mother on a photograph captured on a screen shot with the name “Kaia Benjie” displayed above it [103] . In addition, Constable Tameo confirmed that the name of the accused’s mother as appears on “Facebook” is “Kaia Benjie”.

This is sufficient to offset the scarce explanation offered by the accused as to why her mother is nicknamed “Kaia Benjie”. [ 185 ] As a result, I conclude that the “WhatsApp” messages filed in evidence are indeed between the accused and her mother. As well, I accept that the accused’s mother had a birthday celebration while her daughter was in Barbados between March 21 st and 29 th . The accused was somewhat unsure as to the actual date of the celebration. This uncertainty is peripheral and does not alter my conclusion that a celebration did take place within that time frame.

The “WhatsApp” messages lend support to this view [104] [ 186 ] In light of the above, I am satisfied that the accused went to Barbados in September 2017 because her father underwent major surgery and that she returned in late December of the same year to attend his funeral. I do not question that she paid for both trips with her debit card over the phone. The Crown appeared to challenge this contention. However, as conveyed in re-examination, the accused had in her wallet two Visa debit cards [105] .

This evidence substantiates her claim. [ 187 ] Moreover, I cannot rule out that one of the primary purpose of her March 2018 trip to Barbados was to visit her mother and attend her birthday celebration. Again, the “WhatsApp” messages appear to validate this part of the accused’s testimony. Because of their content, I am also inclined to believe that it was her mother who paid for the plane ticket and enabled her to come to Barbados.

This would be consistent with her profound desire to have all her children in attendance at her birthday festivities. [ 188 ] The accused provided a relatively thorough description of how she spent her days in Barbados. Cross-examination did not undermine her account in that respect. I accept that she spent much of her stay in Barbados visiting relatives and preparing her mother’s birthday celebration. [ 189 ] Likewise, I accept that the “Western Union” money transfer was to pay an outstanding water bill. The accused’s testimony on that issue was coherent and uncontradicted.

Her account is corroborated by material evidence in the form of text messages exchanged with both her son, Shyheim, and his girlfriend, Jessica. [ 190 ] In cross-examination, Crown counsel challenged the accused by bringing to her attention a text message in which Shyheim sought clarification as to the name of the sender – Joan R. Dallaway – his own grandmother. Shyheim wrote: “The sender was Jone who” [106] ? [ 191 ] In an effort to undermine the accused’s credibility as to the true identity of Joan R. Dallaway, the Crown suggested that Shyheim did not appear to know the full name of his grandmother.

While I do agree that this message may arouse suspicion, the accused replied that she could not answer for what her son had in mind at the time – rightly so in my view. The message written by Shyheim constitutes hearsay. It cannot be relied for its truth. As such, it cannot support an inference that Shyheim did not know who Joan R.

Dallaway was. [ 192 ] While disbelieving the accused’s exculpatory account, I do accept that it was David Fraser who was responsible for bringing the two empty bags to her place on the morning of her return flight to Canada. [ 193 ] The accused readily identified him as the person who allegedly duped her into transporting drugs to Canada. She also indicated that he was 38 or 39 years old. She gave significant details about the background of their relationship. [ 194 ] The accused testified that she first met him at age 8 when her family moved to his neighborhood in Vauxhall. He became her childhood friend.

They went to primary school together. Their respective families knew each other. Without any hesitation, the accused was able to provide the names of David Fraser’s family members and even specified that his father, Frank, was deceased. Cross- examination on this portion of her testimony did not impair her credibility. There is no evidence to support a finding of concoction. [ 195 ] For similar reasons, I give credit to the accused’s testimony that the bags were empty and already compressed when David Fraser handed them over to her.

I also accept that she placed them in that state on top of her belongings in each registered suitcase. The observations made by CBSA officers when they opened her luggage confirm her testimony in that regard. [ 196 ] I do not question the fact that the empty bags were destined for a relative of David Fraser. Again, the accused did not shy away from identifying the prospected recipient of the bags – Kelvin Watson, a resident of Toronto. [ 197 ] I earlier concluded that some features of the accused’s testimony were inconsistent with the account of CBSA officers.

This finding negatively impacted my assessment of her credibility. Having said that, her narrative regarding her time at the airport cannot be entirely dismissed. There are various aspects of it worth considering in a more favourable light. [ 198 ] For example, the accused was honest when she ticked the FPA box and indicated to Officer Robert that she was bringing fish into the country. Fish was indeed found in her luggage. She was also forthcoming when she told Officer Robert that it was her third trip to Barbados within a short period of time.

She accurately informed him that she had been gone for seven days. [ 199 ] Her statement to Officer Globensky was to the same effect. She added that she had gone there to visit family. While perhaps not the sole purpose of her trip, she most definitely visited family while in Barbados. [ 200 ] She remained consistent when discussing the frequency of her trips to Barbados with Officer Sauriol.

Strictly speaking, her answers to the standard questions were truthful given that it was her own luggage, she knew their content (at least that of the blue duffel bag and the purple suitcase) and, as I concluded previously, she packed them herself. [ 201 ] Returning to Officer Sauriol’s inquiry about the ownership of the red bag, his comprehension was that they were referring to that bag in particular. However, I am unsure as to whether the accused was actually referring to the red bag when she stated “a year and a half”. [ 202 ] My uncertainty stems from the following cumulative factors: 1.

Officer Sauriol first stated that his comprehension was that they were referring the red bag; 2. there is no indication in Officer Sauriol’s testimony that the accused made it clear that her answer was in reference to the red bag;

3. the accused merely replied “a year and a half” without incorporating a reference to the red bag in her answer; 4. the red bag was not the only item of luggage in their immediate vicinity; 5. no further questions were asked regarding the ownership of the red bag; and 6. the red bag looked like it had never been used which appears to be inconsistent with such a prolonged period of ownership. [ 203 ] Whether fabric softener sheets were plainly visible within the accused’s belongings (other than inside the false bottoms) is another significant conflict in the evidence which I am unable to resolve. [ 204 ] Officer Bouhabel testified that he saw a softener sheet in the purple suitcase not so far from where the empty brown bag had been found.

As for the accused, she firmly stated there were no visible softener sheets in her luggage. [ 205 ] I find Officer Bouhabel’s testimony on this issue to lack reliability. Here is why. [ 206 ] Despite the fact that Officer Sauriol was also actively involved in the search of the accused’s luggage, he did not record seeing a softener sheet anywhere other than inside the false bottoms.

He could not say whether sheets were scattered through her belongings. [ 207 ] Also, Officer Bouhabel claimed that he asked the accused whether the brand of the softener sheets was “Bounce” or “Fabreeze” soon after noticing the sheet in the purple suitcase and prior to undertaking the full inventory of her belongings.

Officer Sauriol, on the other hand, stated that his colleague asked for the brand of the softener sheets as they were doing the full inventory of her personal belongings – not when the red bag was cut open or when they found the empty brown bag in the purple suitcase. [ 208 ] In cross-examination, upon having his memory refreshed with personal notes, Officer Bouhabel stated that he asked the question about the brand at 9:41pm – which is a bit more than an hour after he helped Officer Sauriol cut the bottom of the empty red bag open. [ 209 ] Given the chronology provided by both Officers Sauriol and Bouhabel, it is very unlikely that the purple suitcase was first opened an hour after finding the package in the false bottom of the empty red bag.

It can be safely inferred that the question about the brand was asked during the inventory of the accused’s belongings as stated by Officer Sauriol. [ 210 ] Officer Bouhabel was mistaken. I therefore cannot give credit to his claim that he saw a softener sheet inside the purple suitcase. Again, I am left unsure about it. [ 211 ] For the same reasons, I cannot accept as entirely reliable his claim that he specifically asked the accused whether the softener sheets were “Bounce” or “Febreze”. Officer Sauriol did not offer the same testimony.

He stated that his colleague asked for the brand of the sheets to which the accused replied “Bounce”. In that respect, Officer Sauriol’s testimony accords with that of the accused. [ 212 ] Finally, the accused provided a spontaneous and straightforward answer to explain why she replied “Bounce”. She stated that softener sheets are known as “Bounce” much like tissues are known as “Kleenex”. There is some truth to this statement.

While I am not ready to conclude that the accused had no knowledge of the sheets found in the false bottoms, I cannot discount that possibility. [ 213 ] Upon consideration of the totality of the evidence, I am left unsure as to whether the accused had actual knowledge of the drugs found in her luggage. [ 214 ] My doubt stems from parts of the accused’s testimony that I do accept (or that I cannot dismiss due to uncertainty) combined with the cumulative effect of the gaps (or the absence of evidence) and insufficiencies in the circumstantial evidence tendered by the Crown, which can be identified as follows.

[ 215 ] There is no fingerprint or DNA evidence linking the accused to the cocaine found in the false bottoms. There is no evidence that the accused manipulated the packages of cocaine or that she even manually handled the inside of the empty travel bags. [ 216 ] Consequently, there are no proven facts from which I can infer that the accused was physically involved in concealing the drugs in the false bottoms. [ 217 ] Nor I can I infer that she packed fish in her luggage as a means to mask the odour of narcotics and possibly throw off the scent of drug detection dog.

Officer Sauriol testified that he did not recall whether the fish had a particular odour. [ 218 ] There is no evidence that the accused had any ties with the drug underworld or that other individuals referred to in this matter are actually involved in drug trafficking. [ 219 ] There is no evidence of planning (or knowledge) that can be inferred from her earlier trips to Barbados. [ 220 ] The Crown argued that the messages exchanged with Samantha Campbell amount to evidence of planning.

According to its theory, the event set to take place on March 27 th was not a job fair, but the scheduled handover of the drugs to the accused. [ 221 ] Under the same theory, the person identified as “Joan Robinson” in the March 20 th forwarded message to the accused [107] would in fact be Joan Dallaway – the same person who would have rewarded the accused for participating in an importing scheme by sending money to her son. [ 222 ] With respect, this theory is very much a stretch. It is founded on speculation as opposed to permissible inferences.

There is nothing in the evidence to support an inference that the message forwarded by Samantha Campbell on March 20 th relates to an importing scheme. Also, its content amounts to hearsay and cannot be considered for its truth. Furthermore, Constable Tameo did not pursue any investigation concerning Samantha Campbell, Joan Robinson or Godwin and none of them took the stand. [ 223 ] While I agree that the accused’s inquiry as to the whereabouts and

schedule of the March 27 th event makes little sense given her upcoming trip abroad, she was not specifically cross-examined as to why she asked those questions to Samantha Campbell. [ 224 ] I conclude that the messages exchanged between the accused and Samantha Cambpell cannot reasonably lead to an inference of planning. I conclude likewise with respect to the “WhatsApp” messages between the accused and “Kaia Benjie”.

When questioned as to their content, the accused provided detailed and satisfactory explanations – I have no reason to doubt them. [ 225 ] As suspicious as it may be, I do not view the accused’s late night request to DJ Chris for a phone to reflect planning, even when considered against the entire evidentiary backdrop of this matter. [ 226 ] In fact, I find that there is no cogent evidence on the record of preparatory steps taken by the accused towards an importing scheme. [ 227 ] The accused was questioned at length on her financial situation.

Given her answers, the Crown put forward that she had economic motive to import narcotics. [ 228 ] The accused’s financial situation was far from optimal. Indeed, her gross monthly income at “Stokes” was around 2100$ while her monthly expenses approximated 2800$ [108] . This estimate does not take into account earnings derived from her occasional work at a beauty supply store or Shyheim and Jessica’s contribution to expenses. Nonetheless, the accused, as acknowledged, was always “tight” with money.

[ 229 ] Undoubtedly, the accused had modest financial means and had outstanding bills to pay at the time of departure. I note, however, that she held a steady job and had a relatively stable living situation. There is no evidence that she was receiving government assisted income. [ 230 ] Other than the outstanding bills referred to earlier, the Crown did not lead evidence that she was indebted in large amounts to financial institutions.

Nor does the evidence show that she was on the verge of facing extreme hardship, such as loss of employment or eviction. [ 231 ] The evidence does not point to the accused being subject to a series of out-of-the ordinary financial pressures at the time of the alleged offences.

The general proposition that an accused has a certain level of income is, on its own, insufficient to support an inference of a motive to commit a profit-motivated crime [109] . [ 232 ] For these reasons, I conclude that the evidence of the accused’s financial situation cannot reasonably support an inference that she had economic motive to import narcotics into Canada. [ 233 ] The handwritten note found in the accused’s belongings is not sufficiently probative to alter this conclusion. The accused admitted being the author of the note, but some time before the events.

I have no reason to dismiss her testimony on that point. The Crown did not establish that the note was contemporaneous with the alleged offences. [ 234 ] In any event, the accused’s wish list, although indicative of her desire to find a better way to make money, is common to the aspirations of many who face financial constraints, further diluting the probative value of this item of evidence. [ 235 ] As part of its theory, the Crown argued that the money transfer to Shyheim should be viewed as evidence of financial reward for importing drugs into Canada.

Considering that I have already accepted that the money was sent to pay an outstanding water bill, this argument must be dismissed.

I pause to note that the amount of money sent to Shyheim, i.e. $1222.10, is a rather odd and negligible amount to pay to somebody for accepting to transport valuable drugs into another country. [ 236 ] The Crown also advanced that the accused’s demeanour at the airport may assist the trier of fact in drawing an inference of knowledge. [ 237 ] I recognize that a person’s demeanour during an airport examination may constitute a piece of circumstantial evidence on the issue of guilty knowledge [110] .

However, such evidence must be treated with caution since the inference to be drawn may be affected by faulty assumptions as to how people ought to act in such situations [111] . [ 238 ] I must have regard to the nature of the described appearance, the subjective nature of an officer’s assessment while respecting that he or she had the advantage of seeing the subject, and the reality that a person may display nervousness as a common and natural reaction to interaction with investigative authority [112] . [ 239 ] With this in mind, I now turn to the observations made by CBSA officers during inspection. [ 240 ] All four CBSA officers noted that the accused displayed signs of nervousness.

In addition, Officer Sauriol and Office Bouhabel testified that the accused was somewhat indifferent – as if she was not surprised by their findings. [ 241 ] Officer Robert sensed some hesitancy on the part of the accused and indicated that she appeared to be avoiding eye contact. Yet, he conceded that her demeanour had very little weight in his decision to refer her to secondary inspection.

I do not view the accused’s behaviour at primary inspection as being particularly unusual. [ 242 ] Officer Globensky’s decision to refer the accused to secondary inspection was partially based on his subjective assessment of her demeanour both at the carousel and during their interaction.

[ 243 ] I do not find Officer Globensky’s claim that the accused was continuously looking at him while standing near the carousel to be reliable. Officer Globensky was unable to recall what the accused was wearing, whether she had jewelry on and how long she waited for her luggage. He could not say precisely how many times he exchanged looks with the accused. His attention was also directed to other passengers at the time. [ 244 ] As for his interaction with the accused, I can conceive that giving thought to one’s answers and avoiding eye contact may be grounds for referral.

But these behavioural traits do not necessarily amount to an unnatural reaction. Furthermore, Officer Globensky’s interaction with the accused was very brief – not more than 30 seconds. His observations are therefore inconclusive on the issue of knowledge. [ 245 ] The accused interacted far longer with CBSA officers at secondary inspection. The accused’s behaviour during that time, as described by the officers, did not evolve substantially. [ 246 ] Officer Sauriol did mention that the accused’s stance changed when he asked her about her occupation.

He stated that the accused did not seem at ease, was uncomfortable, ended visual contact and began moving a little more than at the outset of the inspection. I do not consider these characteristics to amount to a significant or abrupt behavioural change. [ 247 ] The officers observed that the accused seemed uninterested and non-reactive as the events unfolded. The accused explained that the she did not have much to say. She even added that she found it relevant not to say anything at all.

When asked why she would say that, the accused stated that she was not dumb, that she watched a lot of crime scene shows and that the best process was to not say anything. [ 248 ] I agree that spontaneously expressing surprise would have been more consistent with lack of knowledge. The accused did not convey this impression.

Nevertheless, I do not consider her behaviour during secondary inspection to be so out-of-the-ordinary that it indicates a consciousness of guilt. [ 249 ] While definitely relevant, demeanour evidence, in this instance, is not sufficiently probative to contribute to an inference of knowledge, even when viewed from a cumulative standpoint. [ 250 ] Last but not least, the Crown asserted that the value of the drugs seized in the accused’s luggage should lead to the reasonable inference that a dealer would not entrust such valuable goods to an unknowledgeable or blind courier for the purpose of importation. [ 251 ] There is no doubt that this is a permissible common sense inference.

Courts recognize that cocaine importers are unlikely to entrust valuable contraband to the control of an unknowledgeable courier with the risks that such a surrender could engage [113] . [ 252 ] Here, the value of the cocaine found in the false bottoms ranges from $118,080 to $137,760 if sold by the kilogram. It goes without saying that the accused was carrying valuable goods. [ 253 ] To draw the inference suggested by the Crown would accord with common sense and logic.

However, as defence counsel submitted, it may also be rational for cocaine importers not to let a courier know that he or she is carrying valuable goods in order to reduce the risk of detection caused by stress or to prevent the courier from stealing the goods for his or her own benefit. [ 254 ] In this case, there is evidence supportive of this submission. The drugs were well concealed and there was an exit plan to retrieve them in Canada upon arrival.

Not advising the accused that she was carrying drugs had the potential of reducing the risks associated with the importing scheme and, in turn, enhance its chances of success. [ 255 ] I am therefore not prepared to draw the inference suggested by the Crown. In any event, given my acceptance of portions of the accused’s testimony and the shortcomings of several other items of circumstantial evidence, drawing such an inference would not have led me to conclude beyond reasonable doubt that the accused had actual knowledge of the drugs found in her luggage.

[ 256 ] This is not a case where the circumstantial evidence, viewed cumulatively, amounts to an inescapable web of proof of knowledge. [ 257 ] For the foregoing reasons, I am not convinced that the only reasonable inference to be drawn from the evidence as a whole is that the accused had actual knowledge of the drugs found in her luggage.

The Crown has not met its burden of proof. - Whether the Crown established wilful blindness? [ 258 ] As an alternative route to guilt, the Crown argued that if I were to believe the exculpatory part of the accused’s version as to actual knowledge or be left in reasonable doubt about it, I should nonetheless be convinced beyond reasonable doubt that she was wilfully blind as to the presence of drugs in her luggage. [ 259 ] In light of my earlier acceptance of portions of the accused’s testimony juxtaposed with cumulative frailties in the circumstantial evidence tendered by the Crown, I conclude that I am also left in reasonable doubt as to whether the accused was wilfully blind as to the presence of a controlled substance in her luggage. [ 260 ] In reaching this conclusion, I give strong, but not exclusive, consideration to the following items of evidence which I do accept for reasons already outlined: - David Fraser was not a stranger to the accused.

He was a long-time childhood friend. She trusted him and did not consider him to be of bad character; - Although the bags were destined for a stranger, he was a relative of David Fraser and therefore had ties to him; - The two bags handed to the accused were empty and already compressed. The accused did not open them; - The bags were of the same brand, of similar dimensions and, as confirmed by Officer Bouhabel, of almost identical weight (even with drugs concealed in them); - These elements support the accused’s claim that the bags did not feel heavier than usual empty bags.

Had one of the two empty bags carried a significantly greater amount of cocaine than the other,

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