



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Black, 2017 ONCA 599

DATE: 20170713

DOCKET: C62729

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Black

Appellant

Maija Martin, for the appellant

Sarah Egan, for the respondent

Heard: July 4, 2017

On appeal from the conviction imposed on June 7, 2016 by
    Justice Irving W. André of the Superior Court of Justice, sitting without a
    jury and with reasons reported at 2016 ONSC 3754.

Hourigan J.A.:

A.

Introduction

[1]

The appellant was convicted of importing 15 kilograms of cocaine. On
    appeal, he submits that the trial judge made two errors. First, the trial judge
    failed to properly apply the third part of the
W.(D.)
analysis: see
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. Second, the trial judge provided
    insufficient reasons in support of the conviction. In particular, he did not
    adequately explain why he was convinced beyond a reasonable doubt that the appellant
    had knowledge of the cocaine.

[2]

For the reasons that follow, I would
    dismiss the appeal.

B.

Background Facts

[3]

The appellant travelled to Antigua in November 2012 to attend a wedding
    with his girlfriend. He returned to Toronto on November 21, 2012 after
    extending his stay in Antigua at his girlfriends request.

[4]

Upon his arrival at Pearson Airport, a
    primary inspection officer asked him a few questions. He hesitated before
    answering and gave two different answers when asked about his friends name. He
    had a garment bag and two other pieces of hand luggage. The officer referred
    the appellant to secondary inspection. He was then cleared to exit the airport.

[5]

A Canada Border Services Officer attended
    the airline on which the appellant arrived to observe the offloading of the
    luggage from the aircraft. The purpose of doing so was because of internal
    conspiracies in which workers at Pearson Airport had been implicated in drug
    importation.

[6]

The officer observed nothing unusual. He
    then followed the bags into the airport and saw them being offloaded onto a
    carousel and he waited to ensure all the bags were picked up. The officer
    observed a red suitcase was unclaimed from the carousel. When the officer opened
    the bag he observed a thick layer of white foam cushioning. An x-ray of the bag
    revealed several brick-like objects. On further investigation, it was confirmed
    the bag contained 15 one-kilogram bricks of cocaine.

[7]

The bag had two luggage tags on it. One
    was a handwritten tag with the appellants name and address on it. The other
    was an airline tag that included a print out of the appellants name. The bag
    contained a white sock, a pair of Nike shoes and tank tops.

[8]

The RCMP obtained a DNA sample from the
    appellant and sent the sock for forensic analysis. The sock revealed two DNA tracings.
    One was the appellants and the other was from an unknown source. It could not
    be determined whether the DNA was from a primary source or a secondary
    transfer. A handwriting expert concluded the handwriting on one of the
    identification tags was probably the same as that on the appellants customs
    declaration card.

[9]

At trial, the appellant testified and
    denied any knowledge of the drugs. He denied checking the luggage on his flight
    from Antigua. He testified that he travelled with the suitcase to Antigua in
    January 2012 along with gifts and clothing for his girlfriend who had a
    clothing business. According to the appellant, he gave her the suitcase at that
    time with the handwritten tag bearing his name attached to it. He testified that
    when he travelled to Antigua in November 2012 to attend a friends wedding with
    his girlfriend, he did not have any checked luggage. On that trip he ended
    their relationship. He testified that he never saw the red suitcase he had
    given her in January 2012. In addition, he said that the shoes found in the
    suitcase were not his size.

C.

Decision Below

[10]

The trial judge identified four possible scenarios that could explain
    how the cocaine-filled suitcase came to be found at the airport:


i.

it was placed on the flight by the
    appellant;


ii.

it was placed on the flight by a
    person or persons unbeknownst to the appellant;


iii.

it was brought into Canada by the
    appellant but he abandoned his intention to retrieve it from the carousel; or


iv.

it was brought into Canada by the
    appellant for someone who intended to retrieve it from the aircraft.

[11]

The trial judge found the appellants testimony denying knowledge of the
    suitcase unworthy of belief and incapable of raising a reasonable doubt. He
    queried why, if the appellant gave his girlfriend the suitcase for use in her
    clothing business, she would have kept the identification tag with his name and
    address attached to the suitcase from January to November 2012.

[12]

The trial judge also addressed the
    appellants testimony that his girlfriend may have intended to get back at him
    for breaking up their relationship. He concluded it defied common sense or
    reason that his girlfriend would have been involved in sending 15 kilograms of
    cocaine on the plane he was travelling on to an unknown person.

[13]

The trial judge acknowledged the defence
    submission that the presence of an unknown persons DNA on the sock and the
    fact that the Nike shoes did not fit the appellant point to the involvement of an
    unknown person in the importation scheme. However, he concluded that those
    facts do not eliminate the involvement of the appellant. The trial judge found that
    the nature of the evidence did not lend itself to a conclusion that the
    appellant was an innocent victim.

[14]

The trial judge ultimately held that the
    Crown had proved the appellants guilt beyond a reasonable doubt based on the
    following evidence:


i.

the suitcase belonged to the
    appellant;


ii.

the appellants name and address
    were on two identification tags on the suitcase;


iii.

the suitcase travelled from
    Antigua to Canada on the same flight as the appellant; and


iv.

the appellants DNA was found on a
    clothing item in the suitcase.

D.

Analysis

(1)

Third Step of the
W.(D.)
Analysis

[15]

The appellant submits the trial judge did not undertake the inquiry
    mandated under the third step in the
W.(D.)
analysis, being a
    consideration of whether the evidence he accepted satisfied him beyond a
    reasonable doubt of the appellants guilt.

[16]

The appellant further submits the trial
    judge misstated and misapplied the third branch of the
W.(D.)
test in the following passage from para. 18 of his
    reasons:

All [Mr. Black] is required to do is raise a reasonable doubt
    in the Crowns case. This can be done if I believe his evidence or
    alternatively, find that it is capable of raising a reasonable doubt in the
    Crowns case.

[17]

The appellant correctly asserts that the burden is not on him to raise a
    reasonable doubt. It is on the Crown to prove beyond a reasonable doubt that he
    imported cocaine.

[18]

The appellant goes on to argue that
    through the misapplication of
W.(D.)
, the trial judge effectively turned the appellants case into a
    credibility contest. The trial judges reasons show that his decision was based
    on which witnesses he believed, not whether the Crown had proved its case
    beyond a reasonable doubt.

[19]

I acknowledge that the appellant has a
    legitimate argument regarding the trial judges analysis of the burden of
    proof. The trial judges reasons did not track precisely the language in
W.(D.)
, and the statement quoted above is troubling.
    However, after careful review, I would not give effect to this ground of
    appeal.

[20]

With respect to the trial judges comment
    where he appears to reverse the onus of proof, it is important consider that
    statement in context. The full quote from para. 18 is as follows:

The Crown clearly bears the burden of proving Mr. Blacks guilt
    beyond a reasonable doubt. Mr. Black is not required to prove anything.
    Specifically, he is not required to prove the existence of internal
    conspiracies at the Antigua airport or that unknown workers at that airport
    were involved in sending the suitcase filed with contraband to Toronto. All he
    is required to do is raise a reasonable doubt in the Crowns case. This can be
    done if I believe his evidence, or alternatively, find that it is capable of
    raising a reasonable doubt in the Crowns case.

[21]

The language used by the trial judge is not a model of clarity. But read
    in context, I am satisfied that he understood the burden of proof and that he properly
    applied it. In my view, what he was saying was that there is no burden on the
    appellant to prove anything, including an alternative explanation as to how the
    cocaine ended up in his suitcase. As long as the evidence was capable of
    raising a reasonable doubt in the Crowns case, that was a sufficient basis for
    an acquittal.

[22]

The appellant also complains that the
    trial judge erred in rejecting the appellants theory that his girlfriend got
    back at him for breaking up with her by sending the suitcase on the plane, when
    he stated, at para. 23 of reasons, that there was no evidence to lend credence
    to this theory. The appellant submits that the trial judge erred because in a
    case based solely or largely on circumstantial evidence an inference of guilt
    must be the only reasonable inference that the evidence permits. Inferences
    consistent with innocence do not have to arise from proven facts:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000, at para. 35.

[23]

The appellant is correct in his
    submission on the law. However, I do not read the trial judges comment as
    requiring an evidentiary basis for an inference consistent with guilt. Rather,
    read in context, the trial judge was saying that, in addition to there being no
    reliable evidence to support the appellants theory, this theory defies common
    sense or reason (see para. 23 of his reasons).  Circumstantial evidence need
    not totally exclude alternative conceivable inferences, and a verdict is not
    unreasonable simply because the alternatives do not raise a reasonable doubt in
    the mind of the trier of fact:
Villaroman
, at para. 56.

[24]

I am also not satisfied that the
    trial judge turned this case into a credibility contest. This was not a case of
    competing narratives, with the judge picking one version over that of the
    accused. In this case, the Crown adduced strong physical evidence to prove the
    appellants guilt, including the fact that the cocaine was in a suitcase that
    he owned and that contained an item of clothing with his DNA on it.

(2)      Sufficiency of Reasons

[25]

The appellant submits the trial judge failed to provide sufficient
    reasons on the issue of the appellants knowledge of the cocaine in the
    suitcase. He asserts that the Crowns case was entirely circumstantial. There
    was no direct evidence the appellant checked any luggage in Antigua or had
    knowledge of its contents. In order to convict, the trial judge would have to
    be satisfied beyond a reasonable doubt the only conclusion available on the
    whole of the evidence was that the appellant knew about or was wilfully blind
    to the cocaine in the suitcase. In these circumstances, the appellant submits,
    the trial judge was obliged to consider the possibility that the appellant did
    not knowingly import cocaine into Canada.

[26]

The appellant argues that although the
    trial judge explained in detail why he rejected the appellants evidence, he
    did not explain whether the Crown had proven the
mens rea
element of importing cocaine beyond a reasonable
    doubt. He submits that the trial judges reasons are fatally silent on the
    mental element required to uphold a conviction for importing cocaine and render
    the reasons for judgment deficient. According to the appellant, the reasons do
    not explain the decision to the parties, provide public accountability or allow
    for meaningful appellate review. I would not give effect to this submission.

[27]

Watt J. in
R. v. Wolynec
, 2015 ONCA 656, 339 O.A.C. 237, at paras. 57-60, provided
    a comprehensive review of the considerations that apply in an analysis of an
    inadequate reasons ground of appeal:

The reasons of a trial judge fulfil their purpose if the
    reasons, read in context, show
why
the
    trial judge decided as she did. To show
why
,
    the reasons need not show
how
the
    judge reached her conclusion in a watch me think fashion:
R.E.M.
, at para. 17. The reasons must display a
    logical connection between the what  the verdict  and the why  the basis
    for the verdict:
R.E.M.
, at
    para. 17. But explaining the why and its logical link to the what imposes
    no obligation on a trial judge to set out every finding or conclusion in the
    process of reaching a decision:
R.E.M.
,
    at para. 18.

A trial judge need not explicate the well settled, repeat the
    uncontroversial or retill common legal ground between the parties. So too with
    evidence. A trial judge is not obliged to detail his or her finding on each
    morsel of evidence or controverted fact, provided the findings linking the
    evidence to the verdict can be logically discerned:
R.E.M.
, at paras. 19-20.

The core question to be answered in determining whether a trial
    judges reasons are sufficient is whether those reasons, read in context, show
    why the judge decided as she did on the offences charged:
Vuradin
, at para. 15.

To succeed on an appeal based on inadequate reasons, an
    appellant must show not only a deficiency in the reasons, but also that the
    deficiency has occasioned prejudice to the exercise of his or her legal rights
    to an appeal in a criminal case:
Sheppard
,
    at para. 33;
R. v. Braich
, 2002
    SCC 27, [2002] 1 S.C.R. 903, at para. 31. An appeal based on insufficient
    reasons will only be allowed where the trial judges reasons are so deficient
    that they foreclose meaningful appellate review:
Sheppard
, at para. 25;
Vuradin
, at para. 10;
R. v. Dinardo
, 2008 SCC 24, [2008] 1
    S.C.R. 788, at para. 25. A failure to explain rejection of a submission does
    not mean the reasons are deficient, provided the reasons demonstrate the
    acceptance of contrary evidence:
Vuradin
,
    at para. 13.

[28]

Again, I acknowledge that the trial judges reasons could have been
    clearer. For example, he could have explicitly stated that he was satisfied
    beyond a reasonable doubt that the appellant had knowledge of the cocaine after
    making the findings of fact that supported his finding at the end of his
    reasons. But in considering the sufficiency of reasons an appellate court must
    read the reasons as a whole, in the context of the evidence, the arguments and
    the trial, together with an appreciation of the purposes or functions for which
    reasons are delivered:
Wolynec
at para. 56.

[29]

Context is critical in this case. This was a one-issue trial. The
    Crowns case in chief and the set of facts that the trial judge explicitly
    accepted established a
prima facie
case that the appellant had committed
    the
actus reus
of the offence, with the compelling resulting inference
    that he did so knowingly. The appellant testified and denied knowledge. His
    evidence was not believed, and the trial judge gave detailed reasons for
    rejecting it.

[30]

That the trial judge was left without a reasonable doubt is apparent
    from a review of his reasons in light of the record. This was a situation where
    the trial judge rejected the appellants evidence that the appellant was a
    blind courier, and then, considering the evidence he did accept, implicitly
    drew the inference that the appellant knew about the presence of cocaine in the
    suitcase. Read in context, the reasons sufficiently explain the basis upon
    which the trial judge found the knowledge component had been proven beyond a
    reasonable doubt.

E.

Disposition

[31]

I would dismiss the appeal.

C.W. Hourigan J.A.

I agree. K.M. Weiler
    J.A.

Pardu J.A. (dissenting):

[32]

I do not disagree with any of the legal principles
    explained by the majority but disagree with their application to this case.

[33]

My concern is with the combination of the trial judges
    misstatement of the onus of proof under the third step of
W.(D.)
 saying that [a]ll [Mr. Black] is required to do is raise a
    reasonable doubt in the Crowns case  together with his failure to make a
    finding of fact about the only factual matter in issue  whether the appellant
    knew about the cocaine in his suitcase.

[34]

The majority acknowledges that the trial judges
    approach to these issues is problematic, but they do not see the problems as
    serious enough to justify appellate intervention. However, I am not convinced
    that, absent the combined effect of these two errors, the trial judges decision
    to convict the appellant would have necessarily been the same as it would he had
    he held the Crown to its obligation to prove beyond a reasonable doubt that the
    appellant knew about the cocaine.

[35]

The need to relate the Crowns evidence and its onus to
    factual findings on the only issue in a criminal prosecution with sufficient
    clarity is, of course, fundamental to a trial judges decision whether to
    convict. A trial judges inability to articulate this may signal a gap in the
    logical reasoning necessary to arrive at a guilty verdict. This militates in
    favour of this court ordering a new trial.

[36]

Here, this court is not in a position to discern
    whether the trial judge found that the Crown proved beyond a reasonable doubt
    that the appellant knew his luggage was used to transport drugs or, indeed,
    whether instead he found that the appellant was wilfully blind to that use.
    This is not a case like most other importing cases, where the accused has his
    or her luggage in hand. The theory of the Crown advanced at trial was that the
    plan to import the cocaine was for a complicit airport worker to covertly
    retrieve the luggage from the plane before the luggage was sent to the baggage
    carousel. This plan was thwarted when a Canada Border Services Officer oversaw
    the unloading of the baggage from the plane. The appellant did not pick up the
    luggage from the carousel.

[37]

In addition to saying that [a]ll [Mr. Black] is
    required to do is raise a reasonable doubt in the Crowns case, the trial judge
    stated at para. 26 of his reasons that the Crown had proven the appellants
    guilt beyond a reasonable doubt because:


i.

the suitcase belonged to the
    appellant;


ii.

the appellants name and address
    were on two identification tags on the suitcase;


iii.

the suitcase travelled from
    Antigua to Canada on the same flight as the appellant; and


iv.

the appellants DNA was found on a
    clothing item in the suitcase.

[38]

I agree with the majority that these reasons does not resemble the model
    of clarity on the correct articulation of the Crowns onus in an importing case
    such as this. Its deficiencies can be brought to light by contrasting them with
    the reasons of Mossip J. in
R. v. Desilva
, [2004] O.J. No. 5971
    (S.C.), at paras. 10-12:

Directing myself on the law, Ms.
    Desilva testified at this trial and I remind myself with respect to the
    principles set out in the Supreme Court of Canada case of
R. v.
    W.(D.)
,

[1991] 1 S.C.R. 742, as follows: if I believe Ms. Desilvas evidence
    that she did not know the duffel bag contained cocaine, I must find her not
    guilty of the offence of importing. Secondly, even if I do not believe Ms.
    Desilva's evidence, if it leaves me with a reasonable doubt as to whether she
    knew the duffel bag contained cocaine, I must find her not guilty. Thirdly,
    even if Ms. Desilvas evidence does not leave me with a reasonable doubt that
    she knew the cocaine was in the duffel bag, I may only find her guilty of
    importing if, on the rest of the evidence I do accept, it proves beyond a
    reasonable doubt that Ms. Desilva knew the cocaine was in the duffel bag.
    Finally, I remind myself of the standard of reasonable doubt as set out in [
R.
    v. Lifchus
],

[1997] 3 S.C.R. 320, and more recently in
Starr
,

[2000] 2
    S.C.R. 144.

Having regard to all of those legal principles and considering
    all of the evidence, I find Ms. Desilva not guilty of the offence of importing
    for the following reasons: I cannot say that I entirely believe or accept Ms.
    Desilvas evidence with respect to the circumstances of her having the duffel
    bag in her possession. In fact I find it likely or probable that Ms. Desilva
    did know the cocaine was in the duffel bag

Ms. Desilvas evidence in the end leaves me with a reasonable
    doubt as I am not sure as to whether Ms. Desilva knew the cocaine was in the false
    bottom of the black duffel bag. Ms. Desilva is entitled to the benefit of that
    doubt and therefore must be found not guilty of the offence of importing a
    narcotic into Canada.

[39]

Unlike my colleagues, I am not prepared to infer that the trial judge
    engaged in the necessary reasoning from the conclusory statements contained in para.
    26 of his reasons. From those explicit statements, the majority concludes,
    based on the context of the evidence and the arguments made at trial, that the
    trial judge implicitly held that the appellant in this case knowingly imported
    cocaine.

[40]

Although I agree with the principle of law that the sufficiency
    of the trial judges reasons must be assessed within this context, [t]his
exercise is not an invitation to appellate courts to
    engage in a reassessment of aspects of the case not resolved by the trial
    judge. Where the trial judges reasoning is not apparent from the reasons or
    the record, as in the instant case, the appeal court ought not to substitute
    its own analysis for that of the trial judge:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. I am
    not convinced that in this case the trial judges reasoning was apparent enough
    in the context of the record for it to be discernable to this court without
    this court having to reassess the case itself and substitute its own analysis.
    There may be an implicit route available from the trial judges explicit
    factual findings at para. 26 to a finding of the appellants guilt, but it is
    not appropriate for this court to attempt to discern that route and explain
    it:
R. v. Capano
, 2014 ONCA
    599, 313 C.C.C. (3d) 135, at para. 74.

[41]

I would allow the appeal and order a new trial.

Released: GP JUL 13 2017

G. Pardu J.A.


