2021 QCCA 1837, 2021 QCCA 1837

McDonald c. R. 2021 QCCA 1837 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007114-190 ( 500-73-004556-177 ) MINUTES OF HEARING DATE: December 3, 2021 CORAM: THE HONOURABLE GUY GAGNON, J.A. DOMINIQUE BÉLANGER, J.A. PETER KALICHMAN, J.A. APPELLANT COUNSEL CHARLENE mcdonald Mtre rodolphe bourgeois By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre mathieu stanton ( Public Prosecution Service of Canada ) Absent On appeal from a guilty verdict rendered on June 4, 20 19 by a jury presided by the Honourable James L.

Brunton of the Superior Court , Criminal Division, District of Montreal. NATURE OF THE APPEAL: Culpability – Heroin trafficking. Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING

9:06 Commencement of the hearing. Continuation of the hearing held on December 2, 2021 The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 3. Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] On June 4, 2019, a jury presided over by Justice James L. Brunton of the Superior Court convicted the Appellant, Charlene McDonald, of importing a prohibited substance, namely three (3) kilos of heroin, in violation of s. 6(1) of the Controlled Drugs and Substances Act [1] . [ 2 ] The Appellant appeals as of right.

She challenges the interlocutory judgment rendered orally on May 29, 2019 (with reasons being written on May 30, 2019) [2] in which the trial judge allowed proof of a “look-out” warning for drugs which appeared on the computer screen of the Montreal-Trudeau International Airport customs agent who conducted the primary inspection of the Appellant.

She also argues that the evidence at trial does not prove her knowledge of the specific nature of the drug found inside her luggage. [ 3 ] The Appellant adds that the trial judge invited the jury to unduly restrict their analysis of the evidence by informing them that their twelve questions asked in a written note were not relevant.

Finally, she argues the insufficiency of circumstantial evidence. [ 4 ] For the purposes of this appeal, it is enough to know that prior to the Appellant’s arrival in Canada on October 13, 2017, there was a narcotics “look-out” warning for her in Canada Border Services Agency (“CBSA”) computers, which mandates referral to secondary inspection. The Appellant was ultimately caught with 3 kg of heroin hidden within her luggage by CBSA agents, a fact that she does not dispute.

i) The “look-out” evidence [ 5 ] Witness Mouhamadou Lamine Ndiaye was the customs agent that conducted the primary inspection of the Appellant upon her arrival in Canada. While scanning her passport, Agent Ndiaye saw on his computer screen a “look-out”. In accordance with the procedures prescribed for such a situation, he referred the Appellant to secondary inspection. [ 6 ] At trial, but before Agent Ndiaye’s testimony, the Appellant objected to the witness mentioning the existence of this famous “look-out” which appeared on his screen.

She argued at trial, as she does before us, that the “look-out” warning evidence is hearsay. She adds that the prejudicial effect of this evidence was greater than its probative value because it could cause the jury to believe that she was a prominent drug dealer before having even heard all of the evidence. [ 7 ] This position defended by the Appellant is based primarily on an endorsement judgment rendered by the Court of Appeal for Ontario in R. v.

Sinclair , which reads in full as follows: [1] The appellant's request for a new trial on the ground that it cannot safely be concluded that the jury's rejection of the appellant's evidence was not influenced by the admission of hearsay evidence that the appellant was subject to a "drug look-out" when she arrived at Pearson from Trinidad is not opposed by the Crown. [2] We are satisfied that this appeal should be allowed.

The appellant's conviction is quashed and a new trial ordered. [3] [ 8 ] In his written judgment, the trial judge rejected the application of this judgment in the following terms: [10] One can infer from the judgement that the drug look-out evidence in that case was tendered for the truth of its contents, thus the reference to hearsay evidence or it was produced as narrative evidence, but the presiding judge did not instruct the jury to that effect.

In the latter case, it could not “… safely be concluded …” that the jury would have not used the look-out evidence as hearsay evidence, i.e. for the truth of its contents. [11] In this case, the respondent clearly states that it is producing the existence of the drug look-out as narrative evidence. As such, it is relevant and admissible. That of course does not end the analysis. Will the prejudice caused to the petitioner by the admission of this evidence be greater than its probative value? [12] Arguably, the probative value of the evidence is slight.

It will simply explain why Agent Ndiaye referred the petitioner for

secondary inspection.

If admitted, the evidence would have to be accompanied by mid-trial instructions to the jury and possibly their repetition during the final instructions, if the defense so desired. [13] The Court believes it can craft strong enough mid-trial instructions which will result in the probative value of the evidence, although slight, not to be overborne by its prejudicial effect. [4] [ 9 ] He then informed the parties of the nature of the instructions he intended to give to the jury on the proper use of this evidence: [14] The instructions will: i. explain the proper use of the evidence, i.e. to simply explain Agent Ndiaye’s decision to refer the petitioner for secondary inspection.

It cannot be used for the truth of its contents; ii. identify the anticipated principle issue in the case, i.e. the petitioner’s knowledge of the presence of a prohibited substance in her baggage; iii. the fact that the existence of a drug look-out has no relevance when analyzing whether the petitioner has knowledge. [5] [Emphasis in the original] [ 10 ] Immediately before Agent Ndiaye’s testimony, the trial judge reiterated to the parties his intention to give appropriate instructions regarding the permitted use by the jury of the “look-out” evidence: I mentioned that I’m going to be giving directives to the jury, considering the anticipated testimony of Mr.

Ndiaye. I’ll be giving those at the end of the examination and cross-examination, so once the testimony is terminated. [6] [ 11 ] Agent Ndiaye finally took the stand. His testimony pertaining to the “look-out” procedure ultimately boiled down to these few sentences: A – Yes, I did scan her passport, then I noticed that she was on a lookout for narcotics. […] A – It says 7, 5; 75. Q – What does that code mean?

A – That day what it meant is it was a warning for lookout. [7] [ 12 ] Following Agent Ndiaye’s testimony, the trial judge gave lengthy instructions about the use of the admitted evidence, limited to narrative purposes only: The witness states when the passport of Mme McDonald is scanned, that on the computer readout from the Customs Service it was indicated that she was the object of a drug look out. Why is that evidence put in? The proper use of that is a very limited use, it simply explains the actions of the Customs officer, why he sent her off to secondary. Why did he send her off at secondary?

Because there was a drug lookout in the computer system. That’s all, it’s just part of the narrative, it explains his work and why... probably with the next witness we’ll end up at secondary and find out what happens there . So that’s the proper use of it. It’s a very... it’s a very simple and limited use. What you cannot use it for is for the truth of its contents. You cannot use it to say Mme McDonald was involved in narcotics in any kind of way, because we have no information about that particular lookout.

And from the opening statement of the Prosecution, it’s already become... it’s become obvious what one of the principal, if not the principal issue you’re going to have to resolve at the end of the day, you’re going to have to answer the following question: has the Prosecution proved beyond a reasonable doubt that Mme McDonald knew that there was the prohibited substance in her luggage? That’s, no doubt, going to be one of the main questions you’re going to have to analyse. And when you analyse that question, the existence of a drug lookout has no relevance to answer that question.

If anybody during your deliberation says... when you’re dealing with that question, says, “Ah, but you remember she was apparently on a drug lookout in the computer system, that must mean she knows that there’s drugs,” if anybody suggests that during the deliberation, the other eleven (11) members of the jury should say, “No, that is not part of the analysis. The judge told us that quite clearly.” So this is extremely important that you understand that. Is it clear for you, what I’ve been saying? Okay.

And I can’t over-emphasize that, and I suspect that I’ll repeat that in my final directives, because it’s so important for you. So it’s a very limited role, it simply explains why the Customs officer made the decision to send her off to secondary. No proof of its contents, no relevance to decide whether Mme McDonald had any knowledge of the presence of the drugs in her luggage. Okay?

Thank you. [8] [Emphases added] [ 13 ] Later, CBSA Agents Serban and Poiré, two Crown witnesses, briefly mentioned the “look-out” procedure: Agent Serban The officer at the exit chooses, looking at the declaration card, if the person is free to leave or needs a secondary inspection. So she got possession of her bag right before getting to me at secondary. [9] […]

Agent Poiré So this Nicki Laliberté told me that I was going to later on assist Mrs. Christine Serban, and this was in reference with a lookout of an individual that was going to arrive later on. [10] [ 14 ] On appeal, the Appellant contends that the trial judge’s instructions were not efficient since the jury still wondered about that issue after his first mid-trial instructions.

By way of support, she exhibits a question the jury asked the trial judge as part of list J-4: “4) How does one get tagged as potential lookout for narcs?” [11] . [ 15 ] The Court dismisses this ground of appeal for the three following reasons. [ 16 ] First, the case law recognizes the admissibility of such evidence for narrative purposes only: [5] Officer Jakovcic summarized her reasons for referring the appellant to secondary inspection: I made a referral to customs secondary for a drug examination.

The reason for that referral was due to a [multiplicity] of indicators which include the travelling to and from a drug source country, short duration of stay in transit .... So the full demeanour as a whole along with the other indicators made me make a drug referral. […] [18] […] In this case the officer's use of the term "indicator" was simply descriptive of her reason for the referral to secondary inspection. It did not, read in context, amount to evidence that the appellant fit a particular profile. There may be contexts where use of that term could invite the jury to draw an improper inference.

Used as it was in this case, the term indicator did not infringe on the jury's task nor did it suggest that the appellant must have had knowledge of the presence of drugs in her luggage. […] [21] The trial judge's charge to the jury must be read as a whole. She fairly put forth the position of the defence, reviewed the appellant's testimony and balanced references to the Crown's case with the defence position.

These excerpts, in light of the entire charge, could not possibly have led the jury to reason that the primary officer's suspicions were evidence that the appellant had knowledge of the drugs. [12] [ 17 ] The Appellant contends that it was an error for the trial judge to allow testimony regarding the “look-out” even as narrative evidence since it is common knowledge that travellers can be sent to secondary inspection arbitrarily. In her view, leaving out this element would not have left a chronological gap in the narrative and would have eliminated the risk of prejudice. [ 18 ] We disagree.

It was well within the trial judge’s discretion to determine that the evidence of the “look-out” was necessary to ensure that the timeline was intelligible. In weighing the probative value and prejudicial effect of this evidence, the judge is entitled to significant deference given his advantage of “being able to assess on the spot the dynamics of the trial and the likely impact of the evidence on the jurors” [13] . [ 19 ] Recently, the Court wrote in Charron v. R . [14] : [84] Dans tous les cas, l’appréciation de la valeur probante et de l’effet préjudiciable commande une grande déférence en appel .

Lorsque le juge du procès détermine que la valeur probante d’un élément de preuve l’emporte sur son effet préjudiciable, il lui est permis de tenir compte des directives limitatives qui seront éventuellement communiquées au jury afin d’atténuer l’effet préjudiciable de l’élément de preuve en question . [References omitted; Emphases added.] [ 20 ] Second, it is well known in law that jurors are presumed to be capable of following clear instructions: [82] Thus, we should not presume that jurors are incapable of following instructions given by the judge.

On the contrary, when the judge issues a clear and forceful warning about the use of some information, we are entitled to presume that it diminishes the danger that the jury will misuse this information when rendering its verdict. [15] [ 21 ] While the question on list J-4 which was asked by the jury after the first mid-trial instructions might be taken to indicate a lack of understanding of these initial instructions, we are of the view that the trial judge’s subsequent answer dissipated any doubt in the jurors’ minds as to the limited use of the evidence: I presume that’s referring to being on the narcotics lookout.

With what I told you, that question is absolutely irrelevant and is not going to be asked. You shouldn’t be asking yourself that question, because it’s of no importance. The only importance was to explain why Mme McDonald was referred to secondary, that’s all. So please put that out of your mind, don’t even be curious about that .

So that question will not be asked during the course of this trial. [16] [Emphasis added] [ 22 ] And if that was not enough, the trial judge also gave additional instructions during Agent Poiré’s testimony when she briefly addressed the “look-out” issue: THE COURT: So, again, there’s been a reference to surveillance, that’s of no import for the decision you’re going to have to take eventually [17] . [ 23 ] Finally, the trial judge came back to the “look-out” evidence during his final instructions to the jury:

The trip. Agent Ndiaye testified that he met Ms. McDonald in the transit area of the airport, as she had a connecting flight to Toronto. He referred her for secondary inspection because she was the object of a drug lookout in the Customs computer system. Ms. McDonald informed him that she was coming back from South Africa, and her trip had been motivated by her passion for Africa. She had been saving for the trip for a long time. She was quite amicable and talkative, and did not appear intoxicated. When they parted, she said, “Bye, babe,” and blew him a kiss.

I repeat the warning I gave you at the end of Agent Ndiaye’s testimony. The reference to a drug lookout can only be used by you to explain why the agent referred Ms. McDonald for secondary inspection. It cannot be used by you in any way as a factor when deciding if the Prosecution has proved beyond a reasonable doubt Ms.

McDonald’s knowledge of the presence of the controlled substance in her baggage . [18] [Emphasis added] [ 24 ] In the Court’s view, the instructions were sufficiently precise, clear and direct that it can be assumed that they were followed by the jurors. [ 25 ] Third, this evidence was strictly limited to the execution of the “look-out” procedure, as was decided by the trial judge.

None of the witnesses talked about the reasons for this procedure or gave any indication that it was reserved for drug dealers. [ 26 ] In short, this issue was tackled with moderation and restraint as shown by the excerpts of testimony reproduced above. In any case, this evidence played a marginal role in light of all the evidence adduced by the Crown at trial. [ 27 ] The first ground must therefore fail. ii) The Appellant’s knowledge of the specific nature of the drug [ 28 ] The Appellant pleads that the evidence does not confirm her knowledge of the illegal substance found in her luggage.

In asserting this ground of appeal, the Appellant raises no error on the part of the trial judge. Furthermore, the Crown’s evidence remains uncontested and supports the jury’s conclusion that the Appellant knew she was importing an illegal substance into Canada. [ 29 ] That being said, the Appellant mentions in her factum the following: 100) The undersigned is aware and respects your decision in Narinesingh . However, with a view to safeguard the Appellant’s rights, the undersigned will nevertheless provide skeleton arguments on this question.

Rest assured that no disrespect is meant ; [19] [Reference omitted; emphasis in original] [ 30 ] The issue of an accused’s knowledge of the specific nature of the drug is a point of law that was settled by this Court in two recent unanimous judgments, namely McClelland c. R. , [20] then Narinesingh c.

R. , the latter having been rendered by a five-judge panel [21] . [ 31 ] The Appellant does not argue that the trial judge’s instructions to the jury, despite having been given prior to McClelland and Narinesingh , infringe the principles set forth therein. [ 32 ] That suffices to dismiss this second ground of appeal. iii) The answer provided by the trial judge to a list of questions asked by the jury [ 33 ] Towards the end of the trial, the jury transmitted to the judge the following twelve questions: Kindly advise of the relevance of the following question.

Disregard if you deem unrelevant. - What kind of DNA was found on the laptop? - Where was the genuine leather briefcase purchased? - To identify if all the content of the suitcases, bags, could have fit in a more standard format.

We ask to have the full content of all suitcases/bags. - Can you explain the Atlanta stamp on page 27 of the accused’s passport? - What is the relationship between the accused and Prince? - Can we have access to the suitcases that had no drugs? - On one of the pictures presented, we see the accused in front of a Bakgatla Safari; was the Accused with a group or did she reserve a car for only herself? → When was the reservation made? - Where was the dog food purchased? - When was the accused building paid off? - How much is her rental income? - Is there further proof of the accused having financial issues?

- On the day of the arrest what was the accused credit card balance or limit? [22] [Full transcription] [ 34 ] The Appellant complains that the trial judge’s answer to the effect that most of these questions were not relevant may have unduly limited the jury’s analysis of the evidence. [ 35 ] When the trial judge’s answer to the jury is read in its entirety, the Appellant’s argument becomes meritless: So, ladies and gentlemen, I received a note from the jury containing a series of questions, I read them to the parties. The first answer is that there’s not going to be any answers to those questions.

The parties are masters of the proof, they decide what proof is going to be put forward to support their position. That’s been done, the proof has been closed, and that’s it. Now, certainly during your deliberations you can raise issues where you... might be causing you concern. I must be frank; most of those questions, I think, were irrelevant, but there might be some issues that are going to cause you some reflection during the course of your deliberations, and that’s fine . But there are no answers going to be given.

And it’s the same during your deliberations if you send me a note saying, “We didn’t hear from such and such a witness; can we hear from that witness?” Well, the answer is no, because the parties have decided which witnesses they’re going to call, and you base your decision on the proof that’s been presented to you. Okay? [23] [Emphasis added] iv) insufficiency of circumstantial evidence [ 36 ] The Appellant submits that the circumstantial evidence adduced by the Crown was reasonably capable of supporting an inference other than that she knew she was carrying a controlled substance.

Aside from exhaustively reviewing the evidence to support her position, the Appellant does not challenge the trial judge’s instructions regarding circumstantial evidence nor those pertaining to reasonable doubt. [ 37 ] To answer this last ground of appeal, it is sufficient to reproduce the Crown’s

summary of the relevant evidence which remains unchallenged (and which amply supports the jury’s conclusion that the Appellant’s guilt was the sole reasonable inference to be drawn beyond any reasonable doubt:

a) The appellant’s declared earnings had fallen sharply from 2016 to 2017, which supported the notion that she acted out of financial need;

b) The appellant mentioned that this trip to Africa was a dream of hers, although her trip was booked only two weeks prior to departure;

c) The appellant also mentioned that she did not leave South Africa on her scheduled departure date due to bad weather, even though her scheduled flight did, in fact, depart as planned;

d) The appellant’s flights were paid in cash and booked by “Alexis”;

e) According to the appellant, “Alexis” booked her flights because she is “bad with internet and technology”, although she was found in possession of a computer;

f) The appellant’s return flight was changed by “Alexis” and “Prince”, the former also indicated he would meet the appellant at the Toronto airport, upon her return;

g) The appellant’s hotel stay was paid in cash and the location of her stay for several other nights remains unknown;

h) The appellant mentioned that she did not have a credit card but one was found in her belongings;

i) The appellant had two cell phones in her possession, including one bought in South Africa;

j) The appellant’s demeanour while undergoing the customs examination was described as follows: i. After being referred for a secondary examination, the appellant blew Officer Ndiaye a kiss and said to the latter “bye, babe”; ii. At the secondary examination, the appellant was very verbal, overly friendly, moving a lot, evading questions, laughing and agitated; iii. The appellant interacted nervously with the sniffer dog; iv. Prior to being stripped searched and before any drugs were found, the appellant began to cry; v.

Once her carry-on suitcase was pierced and a brown powder discovered, the appellant stated, “Oh my God, what is that?” and began to cry; vi. Later, when more brown powder was discovered in her carry-on briefcase, the appellant took her head in her hands and cried;

k) The appellant acknowledged the luggage – including both carry-ons containing the heroin – was hers, packed by her and that she had knowledge of the contents;

l) The appellant claimed to have purchased the carry-on suitcase from her Uber driver in South Africa;

m) In both the carry-on suitcase and briefcase – which each contained part of the heroin shipment – the same blue carbon paper with an “Elite” logo on it was used to conceal the controlled substance;

n) The heroin imported weighed three (3) kilos which is not an insignificant load to carry;

o) The heroin seized had a wholesale value of $210,000 and was worth $1,200,000 at the street level, which indicates that whatever organization was behind the scheme trusted the appellant. [24] [References omitted] [ 38 ] This ground of appeal must also fail. ———————— [ 39 ] Ultimately, the Appellant does not raise any error of law which warrants the Court’s intervention. Her appeal must therefore be dismissed [25] . FOR THESE REASONS, THE COURT : [ 40 ] DISMISSES the appeal; [ 41 ] ORDERS the Appellant to surrender herself before December 8, 2021, between 9 am and 3 pm. GUY GAGNON, J.A. DOMINIQUE BÉLANGER, J.A.

PETER KALICHMAN, J.A. [15] R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823 , para. 82 .