R. v. Shamaine Young, 2016 ONSC 7948

CITATION : R. v. Shamaine Young, 2017 ONSC 7948 COURT FILE NO.: 15/844 DATE: 20170109 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) )) S. Weinstock, for the Crown ) ) ) - and - ) ) ) SHAMAINE PETERINA YOUNG ) ) ) A. Akinyemi for the Defendant ) Defendant ) ) ) ) HEARD: December 5-8, 2016 REASONS FOR JUDGMENT Baltman J. [ 1 ] Ms. Young is charged with importing 1.8 kilos of cocaine, found in a suitcase she brought from Jamaica into Canada in July 2014. The sole issue at trial is whether the Crown has proven beyond a reasonable doubt that she had the requisite knowledge.

Factual Overview [ 2 ] The Crown’s evidence consisted of two Border Services Officers (BSO) – Samantha Bowen and Stacy Sexsmith – and RCMP officer Duc Nguyen. The defence called two witnesses: the accused and Ms. Yolanda Bernard, a character witness. Except where stated otherwise, the following facts, which emerged from the evidence at trial, are largely agreed upon. [ 3 ] Ms. Young is 32 years old. She was born in Jamaica but at the age of 6 months her mother moved to Canada, leaving her to be raised by her maternal grandparents in Jamaica.

Her grandparents took good care of her and she became very close to them. She also had a large extended family in Jamaica. [ 4 ] When Ms. Young was 16 she moved to Canada, and lived with her mother. After she finished high school she worked full time at telemarketing and also did weekend shifts at McDonalds. She had her first child when she was 24 and her second when she was 26, through different fathers. Her relationships with both those men have ended; however, both men provide regular child support payments,

which combined are close to $600 per month. [5] Ms. Young does not have a criminal record. She and her sons now live with her mother. In 2014, when this case arose, she wasliving with her two children and supported herself through a combination of babysitting work, child tax credits, and child supportpayments from both fathers. [6] After her move to Canada Ms. Young remained close to her grandparents; they spoke regularly by phone, her grandmother visitedtwice a year, and Ms. Young sent gifts to her grandfather. Before the trip that led to this charge Ms.

Young visited her grandparents onseveral occasions: ● in April 2012, she and her older son visited her grandparents for 2 weeks; ● in January 2014, after hearing her grandfather was seriously ill, she visited for approximately 10 days; ● in April 2014, after learning that his health had declined further, she visited her grandfather again. [7] On each trip she stayed in her grandparents’ home, so her only significant expense was the plane ticket. The final trip was for his funeral, following his death on June 1st, 2014. She flew there on June 20th along with other relatives from Toronto.

The funeral was heldon June 22nd. She was listed in the funeral program to speak on his behalf, and shared her memories of him with the congregation. [8] Before leaving Toronto Ms. Young booked her return flight for July 2nd. Her relatives from Toronto flew back on June 23rd because they had to return to work, but she stayed there longer in order to support her grandmother during this difficult transition. [9] Ms.

Young’s return flight to Toronto was originally scheduled to depart in the afternoon of July 2nd; however, because it was delayed, she did not arrive at Pearson airport until approximately 2:30 a.m. on July 3rd. After making it through the primary inspectionline she was “roved” by BSO Bowen and referred to secondary inspection. [10] Ms. Young arrived at the secondary counter with two checked-in bags, one carry-on bag and a black purse. The clothesfound in the suitcase were consistent with the type and length of trip that Ms.

Young described to Bowen. [11] During the secondary examination, Bowen found 2 cans of “Grace Sweetened Instant Chocolate” powder and 2 cans of“Eve Mango Nectar” inside Ms. Young’s luggage. Although nothing about the cans appeared unusual or suspicious, Bowen decided totest them for contraband by inserting a probe. [12] All 4 cans tested positive for cocaine – the “chocolate” cans contained cocaine powder and the “nectar” contained liquidcocaine.

The cans had not been secreted in any way: they along with various genuine food items were in plain view inside the suitcase. [13] When Bowen told Young she was under arrest for importing cocaine she appeared surprised, and tried to explain that shehad purchased the food items from a Mega-Mart in Jamaica. [14] The combined weight of the cocaine found inside the 4 cans was 1.8 kilos, with a street value of between $72,000 to$148,000, depending on whether it was sold at the kilogram or gram level. [15] During her examination-in-chief BSO Bowen attributed various incriminating comments and gestures to Ms.

Young.However, by the end of her cross-examination it was apparent she was an unreliable and biased witness, and none of her negativeobservations regarding Ms. Young deserve any weight. To the Crown Attorney’s credit he conceded that during argument, and advisedhe was not relying on Bowen’s testimony whatsoever to found a conviction. For that reason I have not dealt with her evidence in anydetail. [16] Officer Sexsmith’s evidence was not controversial, and merely served to confirm the sequence of events that unfoldedduring the secondary inspection.

As for Corporal Nguyen, in addition to reviewing the physical evidence that was seized, he offered thefollowing of import: ● no evidence relevant to the drug trade was found on Ms. Young’s cellphone; ● even though Ms. Young told him she had purchased the 4 cans at the Mega Mart in Jamaica, he made no efforts to confirm whetherthese were products that the store ordinarily carries; ● through the RCMP liaison officer in Jamaica he did confirm that the funeral for Ms. Young’s grandfather was genuine. Legal Framework [17] There is no direct evidence of Ms. Young’s knowledge of the cocaine.

The case against her rests entirely on circumstantialevidence. I must therefore be satisfied beyond a reasonable doubt that Ms. Young’s knowledge of the cocaine is the only reasonableinference to be drawn from the proven facts: R. v. Cooper, (SCC), [1978] 1 S.C.R. 860, at 881; R. v. To (1992), (BC CA), 16 B.C.A.C. 223 (B.C.C.A.) at paras 19-20. [18] Moreover, in order for me to convict Ms. Young, I must be satisfied on the totality of the evidence there is no reasonabledoubt as to her guilt, in accordance with the three-stage approach set out in W.(D.) v. The Queen (1991), (SCC), 63C.C.C. (3d) 397 (S.C.C.).

Evidence [19] In her testimony Ms. Young explained how she had been “conned” into transporting 4 cans of cocaine.

[20] On several occasions during her stay in Jamaica she and her grandmother were visited by members of the extended familyliving there, one of whom was her cousin, Corcel Walters. Walters is in his late 30’s and is the son of her father’s sister. He lived in thecountryside of Jamaica with his partner and two children. Before this trip she last saw him or spoke with him in 2012, when he came bybriefly to visit while she was staying with her grandparents. [21] On this trip Walters visited her grandmother’s house on several occasions.

During his visits she and Walters caught up ontheir lives and exchanged details about their children. He knew she was worried about how her grandmother would manage after shereturned to Canada, and therefore volunteered to look in on her regularly. He inquired about when Ms. Young was returning to Canada,and told her he wanted to send home some presents for her children. They agreed to go shopping together for that purpose, although theprecise date was not determined. [22] On the morning of July 1st, the day before she was scheduled to return to Canada, Walters called and arranged to take hershopping that day.

Shortly after, he picked her and her 2 cousins up from her grandmother’s house. A friend of his, whose name shecannot recall, was driving the car. They went shopping at a large grocery store, called “Mega Mart”. There Walters purchased severalfood gifts for her children, including 2 cans of chocolate powder and 2 cans of a mango drink. They stored the groceries in the trunk andproceeded to a restaurant for lunch.

Walter’s friend did not come inside with them, explaining that he had something to do and might jointhem later. [23] Shortly after they ordered their meals Walter got a phone call and left the restaurant for approximately an hour. While hewas gone the rest of them ate their lunch. Upon his return, when asked where he had been, he simply said he had an errand to do. He andhis friend then dropped Ms. Young and her cousins back at their grandmother’s house. They left the groceries with Ms.

Young so shecould pack them along with her belongings, and told her they would drive her to the airport the next day for her return flight to Toronto. [24] The next day she packed for her return trip home, using the same suitcases she had brought down with her. She insertedinto her luggage the 4 food cans that Walters had bought, along with other food items she had purchased from the same store. Waltersand his friend picked her up and drove her to the airport. Walters told her that his friend, who lives in Toronto and went by the nickname“Short Man”, would pick her up from the airport and drive her home.

Walters said he had given Short Man her flight information andcell phone number. [25] When she was told at Pearson airport that the cans contained cocaine she was shocked. She tried to explain to the officershow the cans had been purchased at the supermarket. After she got out on bail she phoned Walters and demanded to know why he hadset her up. He denied responsibility and they have never spoken since. She told her grandmother about what happened and she too triedto find out from Walters why he had used Ms. Young, to no avail. [26] Yolanda Bernard gave character evidence on behalf of Ms. Young.

She lives in Canada and has known Ms. Young forover 11 years. Ms. Young rented a room in Ms. Bernard’s home for approximately 2 years. While living there she babysat Ms. Bernard’schildren. They came to consider Ms. Young like a member of their family. Ms. Bernard knows her to be a good mother and ahardworking, decent woman. She has never seen her use drugs or be involved with them. Analysis [27] As I noted above, in order for me to convict Ms. Young I must be satisfied on the totality of the evidence there is noreasonable doubt as to her guilt, in accordance with the three stage approach set out in W.(D). v.

The Queen (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) [28] I recognize there are gaps in Ms. Young’s story and certain aspects strain credulity. Walters’ stated wish to send gifts backfor Ms. Young’s children, and Ms. Young’s acceptance of this generosity from her cousin, is not in and of itself unusual. However, Mr.Walter’s scheme was contingent on many favorable circumstances and fraught with risk. [29] For example, the food purchase was left until the day before her scheduled departure; there was no guarantee Ms.

Youngwould agree to take the cans back in her luggage, considering the space they occupied and the weight they added; and both Walters andhis friend offered a feeble explanation for their absence from the restaurant. [30] Most significantly, Walters would have had to organize, on short notice, a scheme to empty and refill the cans withcocaine during the tight timeline while Ms. Young and her cousins were eating in the restaurant. And it had to be done “professionally”,so that it would not be obvious the cans had been tampered with. Finally, by leaving the refilled cans with Ms.

Young on her final nightthere, he ceded control of valuable merchandise. [31] All those factors, when combined, suggest Ms. Young knew she was participating in the importation of contraband.However, several other factors create doubt as to Ms. Young’s guilt. First, and most compelling, the trip to Jamaica was for an entirelylegitimate reason; not only has it been confirmed that the funeral for her grandfather occurred as she stated, her longstanding, closerelationship with him was a compelling reason to attend.

Indeed, she was one of the scheduled speakers at his funeral. [32] Second, unlike many importing cases where the accused lays blame on a recent acquaintance who s/he cannot properlyname or contact, here Ms. Young has pointed out precisely who in Jamaica entangled her into this affair and her historic connection tohim. While she was not especially close to her cousin she had known him for many years before this event, and therefore it is plausiblethat she would not question the legitimacy of any gifts he purported to be sending back for her children.

[ 33 ] Third, her startled reaction upon being arrested along with her attempt to explain how she came into possession of the cans is consistent with her being unaware they had been corrupted. [ 34 ] Fourth, both the BSO and RCMP officers confirmed that until the cans were opened there was no evidence they had been tampered with. [ 35 ] Fifth and finally, the supportive reputation evidence offered by Ms. Bernard stands uncontradicted. [ 36 ] While those factors do not entirely shift the pendulum back in her favour they at least, when combined, raise some rational concerns about the Crown’s case.

Consequently, while I may question some of Ms. Young’s evidence, it does, when combined with other evidence in the case, leave me with a reasonable doubt. [ 37 ] For those reasons I find Ms. Young not guilty. ___________________________ Baltman, J. Released: January 9, 2017 CITATION : R. v. Shamaine Young, 2017 ONSC 7948 COURT FILE NO.: 15/844 DATE: 20170109

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – SHAMAINE YOUNG Defendant REASONS FOR JUDGMENT Justice D. Baltman Released: January 9, 2017