



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Arnaud, 2017 ONCA 440

DATE: 20170531

DOCKET: C61007

Cronk, Blair and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fubio Trinidad Arnaud

Appellant

R. Craig Bottomley and Mayleah Quenneville, for the
    appellant

Milica Potrebic, for the respondent

Heard: May 30, 2017

On appeal from the conviction entered on January 28, 2014
    by Justice George S. Gage of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of unlawfully importing cocaine
    into Canada, contrary to s. 6(1) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19.  He was sentenced to 15 years in jail, less credit of 16.5
    months for pre-sentence custody.

[2]

The appellant appeals from his conviction.  He raises two grounds of
    appeal.  First, he argues that the trial judge erred by failing to address his defence
    in any meaningful fashion.  Second, and relatedly, he submits that the trial
    judge further erred by failing to undertake any proper analysis under the third
    step of the inquiry mandated by
R. v. W.(D.)
, [1991] 1 S.C.R. 742, in
    order to determine whether the Crown had made out its case beyond a reasonable
    doubt.

[3]

We reject both grounds of appeal.

[4]

This was a straightforward, albeit circumstantial, case.  Officers of
    the Canada Border Security Agency at Toronto Pearson International Airport
    discovered 68 bricks (33.7 kilograms) of cocaine, with a street value of
    approximately $2 million, secreted in the lining of several winter vests in two
    suitcases that admittedly belonged to the appellant.  The appellant was
    travelling from Bogota, Colombia to London, England, via Toronto, at the time
    of the discovery.

[5]

There is no question that the luggage containing the cocaine belonged to
    the appellant.  The only live issue at trial was whether he knew of the cocaine
    in his luggage.

[6]

The appellant testified and denied any knowledge of the drugs.  He
    claimed that most of his personal belongings were missing from his luggage on
    his arrival in Toronto, and that he had never seen the winter vests before
    entering the secure customs area at the Toronto airport.  He argued, through
    counsel, that persons unknown  airport baggage handlers  had planted the
    cocaine in his luggage, without his knowledge or consent, with the goal of
    shipping the cocaine to England.

[7]

At the conclusion of trial, the trial judge delivered brief oral
    reasons, rejecting the appellants version of events, concluding that the
    evidence did not raise a reasonable doubt about the appellants culpability,
    and convicting the appellant of the offence charged.  In so doing, the trial
    judge indicated that his oral reasons would be supplemented by written, detailed
    reasons to be delivered at a later date.  He later provided those supplementary
    reasons.

[8]

The trial judges oral and written reasons must be read together.  In
    our view, contrary to the appellants contention, they confirm that the trial
    judge came to grips with the appellants defence and addressed it head on. 
    Indeed, his reasons directly respond to the defence theory that the appellant
    was an innocent blind mule and that the weight of one of his suitcases on
    arrival in Toronto and the security tags allegedly attached to his luggage by
    Colombian airport officials lent credence to this theory.

[9]

The trial judge rejected this defence theory as speculative and unworthy
    of belief.  He also rejected the appellants testimony, making strong adverse
    credibility findings against him.

[10]

The trial judge was entitled to do so.  It was demonstrated on
    cross-examination that the appellant had deliberately lied under oath about his
    criminal antecedents, significantly undermining, if not obliterating, his
    credibility.  Further, there was no evidence at trial that any baggage handler
     or any other individual involved in offloading the appellants baggage from
    the plane in Toronto  had tampered with the appellants two suitcases or
    planted cocaine in them.  Indeed, there was affirmative evidence from Canada
    Border Security Agency officers that they had observed the offloading of the
    luggage and saw no one interfering with any of the baggage, including the
    appellants suitcases.

[11]

We also do not accept the appellants claim that the trial judge failed
    to undertake the requisite inquiry mandated under the third step of
R. v.
    W.(D.)
.  That inquiry required consideration whether, on the whole of the
    evidence, the trial judge had a reasonable doubt about the appellants guilt.

[12]

The trial judge addressed this issue in both his oral and written
    reasons.  In his oral reasons, he expressly considered the defence reliance on
    the absence of any indication of an overweight baggage charge on the
    appellants suitcases and the implications of the security inspection tag allegedly
    affixed to the appellants luggage in Bogota.  The trial judge provided clear
    and cogent reasons for his rejection of the defence assertion that these
    features of the evidence gave rise to a reasonable doubt concerning the
    appellants knowledge of the presence of the cocaine.  He concluded, on all the
    evidence, that the prospect of an independent outside intervention [involving
    the planting of the cocaine in the appellants luggage] [was] nothing more than
    speculation.

[13]

The trial judge returned to this issue in his written reasons.  He
    reviewed the evidence in detail, including, specifically, the evidence now said
    by the appellant to have been favourable to his defence, accurately stated the
    defence position, and again provided clear reasons for his conclusion that the
    evidence failed to give rise to a reasonable doubt that the appellant was
    aware of the presence of the cocaine in the bags over which he had control.

[14]

The trial judge was required to do no more.  His findings regarding the
    appellants knowledge of the cocaine were based on his assessment of the whole
    of the evidence.  No reversible error having been demonstrated, his
    appreciation of the evidence and his associated findings attract deference from
    this court.

[15]

Finally, relying on the Supreme Court of Canadas recent decision in
R.
    v. Villaroman
, 2016 SCC 33, the appellant says there were reasonable
    inferences in this case other than guilt and, as a result, the Crown failed to
    prove its case beyond a reasonable doubt.

[16]

We disagree.

[17]

The trial judge concluded, in effect, that there was no reasonable
    inference in this case, on the whole of the record, other than guilt.  We see
    no error in that conclusion.  At the end of the day, the defence theory that
    the appellant was an unwitting blind mule of the drugs rested on nothing more
    than bald assertions by the defence of the possible involvement of unknown
    baggage handlers or other airport personnel in the importation of the cocaine. 
    That the trial judge rejected that theory does not mean that he failed to apply
R. v. W.(D.)
properly.  It simply means that he saw no available
    inference in this case, other than guilt, that was reasonable given the
    evidence and the absence of evidence, assessed logically, and in light of human
    experience and common sense:
Villaroman
, at para. 36.

[18]

For these reasons, the appeal is dismissed.

E.A.
    Cronk J.A.

R.A.
    Blair J.A.

K. van
    Rensburg J.A.


