2010 QCCA 2357, 2010 QCCA 2357

R. c. Châteauneuf-Fleury 2010 QCCA 2357 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004495-097 (500-73-002672-067) ACC. 012/038) DATE: December 20, 2010 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JACQUES DUFRESNE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. JULIE CHÂTEAUNEUF-FLEURY RESPONDENT – Accused JUDGMENT [ 1 ] THE COURT: On appeal from a judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (The Honourable Claude Millette) rendered on September 30, 2009 that acquitted the respondent of a charge of having acted for the benefit of a criminal organization (

section 467.12 Criminal Code ); [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Chamberland J.A., with which Rochette and Dufresne JJ.A. agree: [ 4 ] DISMISSES the appeal. JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JACQUES DUFRESNE, J.A. Mtre Yvan Poulin Mtre Alexandre Dalmau For the Director of Public Prosecutions of Canada For the appellant Mtre Bruno Ménard Bruno Ménard law firm For the respondent Date of hearing: November 3, 2010 REASONS OF CHAMBERLAND J.A.

[ 5 ] This appeal was heard simultaneously with that involving Nancy Cedeno (500-10-004494-090 (verdict) and 500-10-004680- 102 (sentence)). [ 6 ] The respondent was recruited to carry narcotics from Venezuela to Canada for remuneration ($30,000). Ultimately, the respondent entered the country on April 17, 2006, without the goods, which were seized in Venezuela. [ 7 ] The respondent pleaded guilty to the count of conspiring to import cocaine but not guilty to that of committing this indictable offence for the benefit, at the direction of or in association with a criminal organization (section 467.12 Cr.

C .). [ 8 ] At the end of her trial, she was acquitted; hence the appeal by the Crown. The judgment a quo [ 9 ] The trial judge related the circumstances wherein the respondent became involved in the operation to import narcotics from Venezuela into Canada. [ 10 ] The respondent met Ray Kanho in the fall of 2005. On October 29, she gave him her address, and on November 17, she gave him directions to get to her home. The trial judge found that she had known Mr. Kanho for only a short time. [ 11 ] Aware of the financial problems the respondent was experiencing, Mr.

Kanho proposed that she smuggle narcotics into Canada for remuneration. At the time, the respondent believed that he would come with her. On April 9, 2006, however, a certain Sébastien Pierre-Louis brought her the suitcase in which the narcotics were to be carried and informed her that he would be travelling with her instead of Kanho. [ 12 ] The next day, the two met at the airport before taking off for Venezuela. [ 13 ] Once they had arrived at their destination, the respondent realized that she was to stay at a different hotel from the one where Mr. Pierre-Louis would be staying.

Alone in a foreign country and receiving no news from Mr. Pierre-Louis, the respondent began to panic and made a number of vain attempts to reach him. Finally, a friend in Montreal managed to get in touch with Kanho. In the end, Mr. Pierre-Louis went to her hotel with a man by the name of Oscar; he took the suitcase she was supposed to use to carry the drugs and returned to his hotel.

The respondent would never see the suitcase again. [ 14 ] At this point in the narrative of facts, the trial judge found that this meeting of three people was part of the conspiracy because the commission of the offence of importing cocaine was still in its planning stages. [ 15 ] On April 17, 2006, the respondent returned to Montreal with Mr. Pierre-Louis but without the suitcase, which had been intercepted in Venezuela.

Upon arriving in Montreal, the respondent tore the pre-stamped customs declaration form that she had been planning to use to pass smoothly through customs, throwing the pieces into an empty box of chips. This box was picked up by a police officer who had observed her from a distance in the airport. [ 16 ] The trial judge believed that the respondent had no experience in this kind of operation and that she was [ translation ] "a victim" of seasoned drug smugglers.

He found that the respondent did not know the identity of the participants in the conspiracy aside from Kanho, Pierre-Louis and Oscar, and that it was very likely that she did not even [ translation ] "guess" that anyone else was involved. The trial judge found that there were [ translation ] "strong doubts" as to the respondent's intention and desire to conspire for the benefit of [ translation ] "this organization whose existence has been established by the Crown" (at para. 86). The issue in dispute [ 17 ] The appeal raises a single question: Did the trial judge err in his

interpretation of the provisions relating to criminal organizations by imposing on the Crown a heavier burden than the legislature intended? [ 18 ] There are two aspects to this question: (

a) the number of persons required, including or in addition to the accused, to prove the existence of a "criminal organization" and (

b) the respondent's knowledge of the criminal organization for whose benefit she had agreed to carry drugs. [ 19 ] Regarding the number of persons required, I refer to what I have written in the Cedeno file.

Section 467.12 Cr. C . covers two situations: one in which the accused is a member of the criminal organization for whose benefit the crime is committed, and one in which the accused is not a member but commits the indictable offence for the benefit of the criminal organization. In the first scenario, the accused can be one of the three persons stipulated in the definition of "criminal organization" in

section 467.1 Cr. C ., so long as the evidence also establishes that he or she is indeed part of the group. In the second, the Crown must establish the existence of a group composed of at least three persons, excluding the accused. [ 20 ] In this case, the evidence shows that the respondent already knew Ray Kanho and Sébastien Pierre-Louis before flying to Venezuela and that she met Oscar there. Kanho was the leader of the operation. In the days before the respondent's departure, Kanho had spoken with Omar Riahi twice and with Pierre-Louis and Oscar on several occasions.

In his reasons, the trial judge noted that the meeting at the hotel in Venezuela involving the respondent, Pierre-Louis, and Oscar was in furtherance of the conspiracy; picking up the suitcase to be used to carry drugs was another step of the criminal operation in progress. In the view of the judge, these individuals were also seasoned drug smugglers. [ 21 ] Thus, the trial judge did not err in his assessment of the evidence required to find that there was a criminal organization within the meaning of

section 467.1 Cr. C. Proof was made of such an organization, consisting at the very least of Kanho, Pierre-Louis and

Oscar, the latter two under the direction of the former. What remained was the determination of whether the respondent, who hadpleaded guilty to the charge of conspiracy and who therefore was aware of its general objective and had the intention to take

part in it,was also, beyond any reasonable doubt, aware of the fact that she was committing the crime for the benefit of, at the direction of or inassociation with a criminal organization – in short, whether she had the blameworthy intent required to be found guilty of having actedfor the benefit of a criminal organization (R. v. Lindsay, (ON SC), 182 C.C.C. (3d) 301 (Ont. Sup. Ct.

J.), aff'd bythe Court of Appeal for Ontario, 245 C.C.C. (3d) 301, 2009 ONCA 532). [22] If the respondent's suspicions were aroused to the point where she saw the need for further inquiries regarding the identity ofthe person or group for the benefit of which she was conspiring to import drugs into Canada, but deliberately chose not to make thoseinquiries, it could be inferred from this wilful blindness that she was aware that she was acting on behalf of a criminal organization (R. v.Briscoe, [2010] 1 S.C.R. 411, 2010 SCC 13).

This question is closely related to the assessment of the respondent's credibility, a questionof fact that the Crown cannot raise as a ground for appeal. [23] The trial judge found that a doubt existed as to the respondent's knowledge regarding the participation of persons other thanKanho, Pierre-Louis and Oscar in the operation.

It is even possible, in his opinion, that she had not even [translation] "guessed" that otherpersons were involved. [24] It would have been preferable for the judge to consider whether the respondent suspected that the three persons with whomshe was conspiring constituted a criminal organization unto themselves and that the conspiracy was being carried out for its benefit,rather than whether she was aware of the existence of a larger criminal organization. [25] The Crown was not required to demonstrate the respondent's knowledge of the participation of persons other than the threewith whom she had been in contact in the context of the operation, so long as the activity of these three people met the other requirementsof the definition of "criminal organization".

The essential criterion was that the respondent knew that the group made up of Kanho,Pierre-Louis and Oscar was not formed randomly for the immediate commission of a single offence. [26] That said, the appellant does not persuade me that the verdict would have been different if the judge had formulated hisquestion differently. From his comments during arguments, it is clear that he was concerned with the distinction between participating ina criminal conspiracy with three other persons and participating in such a conspiracy but for the benefit of a criminal organization.

In myview, these comments, together with what the judge wrote in the judgment a quo, establish that he did not believe that the respondent hadthe intention of acting for the benefit of a criminal organization in addition to that of taking

part in the conspiracy. In short, while itwould have been desirable for the trial judge to better define the mens rea requirement for the offence of criminal gang activity withwhich she was charged, I find that, if he had done so, the result would have been the same and he would have found that a reasonabledoubt existed as to her wrongful intent. [27] For these reasons, I would dismiss the appeal. JACQUES CHAMBERLAND, J.A.