



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Burnett, 2018 ONCA 790

DATE: 20181001

DOCKET: C57996

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alise Burnett

Appellant

Paul Alexander, for the appellant

Lisa Mathews, for the respondent

Heard: April 30, 2018

On appeal from the conviction entered on June 20, 2013 by
    Justice John R. Sproat of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

Alise Burnett was going on vacation. She planned to travel alone to her
    usual destination  Jamaica. But then a man whom she was dating, Jason Moscow,
    persuaded her to change her destination. He suggested Panama.

[2]

Jason Moscow said that his cousin, known to Burnett only as Richard,
    was going to Panama too. He was not going alone. Three others  Teneka Morris,
    Zoe Layne, and Keisha Sunley-Paisley  were going with him. So Alise Burnett
    changed her plans. She joined the other three young women and Richard for their
    trip to Panama.

[3]

In Panama, Alise Burnett toured around, danced, partied and tanned. When
    the vacation was over, Ms. Burnett and the other three women returned to Canada
    together. Richard did not return with them.

[4]

At Toronto Pearson International Airport (Pearson), officers from the Canada
    Border Services Agency (CBSA) referred Ms. Burnett and her travelling
    companions to secondary inspection. Each traveler had two suitcases. In each suitcase
    officers found secret compartments with 1.5 kilograms of cocaine. All four travellers
    were charged with importing cocaine.

[5]

Alise Burnett and Zoe Layne were tried together. Alise Burnett told the jury
    that she had no idea there were drugs in her suitcases. Zoe Layne said the same
    thing. The jury did not believe Alise Burnetts testimony and found her guilty
    of importing cocaine contrary to
Controlled Drugs and Substances Act
, SC
    1996, c 19, s. 6(3)(a)(i). They could not reach a unanimous verdict on the same
    charge against Zoe Layne. The trial judge sentenced Alise Burnett to a term of
    imprisonment of six years.

[6]

Alise Burnett appeals her conviction. She says that the trial judge
    admitted some evidence that he should have excluded, then compounded his error
    by failing to instruct the jury not to use this evidence in assessing whether
    Ms. Burnetts guilt had been proven beyond a reasonable doubt. She also
    contends that the trial judge was wrong to instruct the jury that they could
    find the fault element of the offence charged proven on the basis of wilful
    blindness.

[7]

These reasons explain my conclusion that this appeal should be allowed
    and a new trial ordered.

THE BACKGROUND FACTS

[8]

A brief reference to the circumstances giving rise to the offences
    alleged will provide a suitable frame for the discussion and determination of
    the grounds of appeal advanced by the appellant.

The Principals and their Relationship

[9]

Alise Burnett was 20 years old. She worked in the market research and
    recruitment industries. Neither job was full-time. She earned about $1000 per
    month. Within months of the alleged offence she had ended a three-year
    relationship and had begun dating again with a prior acquaintance, Jason
    Moscow.

[10]

When
    Alise Burnett told Jason Moscow of her vacation plans and intended destination,
    he suggested Panama. He said his cousin Richard was planning to go there on
    vacation with three other young women. According to Moscow, Richard knew a
    travel agent who could get Ms. Burnett a good deal on a trip to Panama.

[11]

Alise
    Burnett had met the three women who were going on the trip with Richard a few
    times previously when she was out with Moscow. She decided to go along with
    them and Richard to Panama.

The Travel Arrangements

[12]

About
    a week later, Richard and the others picked up Ms. Burnett and drove to the
    travel agency to purchase their ticket packages. Richard spoke to the travel
    agent. He explained to Ms. Burnett that both all-inclusive and flight-only
    packages were available. Ms. Burnett chose the all-inclusive package. She
    agreed to share her room with Teneka Morris because of the limited number of
    packages available. The others would stay at a different resort.

[13]

Ms.
    Burnett paid for the trip herself, using a pre-paid credit card she purchased with
    cash.

Packing for the Trip

[14]

Alise
    Burnett explained to Jason Moscow that she had no suitcases to take with her to
    Panama. Moscow offered to borrow suitcases from Teneka Morris. Two or three
    days before the flight, Moscow showed up with two suitcases for Burnett. He
    helped her pack the suitcases. Then he gave her $500 in cash to give to
    Richard, who had taken an earlier flight, in Panama.

The Departure

[15]

Jason
    Moscow drove Alise Burnett and two of her travelling companions to the airport.
    Ms. Burnetts luggage was overweight. She removed some of the items and gave
    them to Moscow to take back to her home. She and the others then boarded their
    flight to Panama.

The Hotel and Activities

[16]

In
    Panama, Ms. Burnett shared her room with Teneka Morris. As she usually did when
    on vacation, Ms. Burnett did not empty out her suitcase in their hotel room.
    Instead, she took out things as she needed them. She was not always in the room
    with Ms. Morris, but was out and about tanning, partying, shopping, sightseeing
    and going to the casino and shows.

The Resort Proposal

[17]

A
    few days after their arrival, all four women were at the casino with Richard.
    He suggested that they could go to a resort, Playa Blanca. Ms. Burnett
    explained that she could only pay about $75 towards the cost. Teneka Morris
    told her not to worry about it because all of them were going together. They
    were to meet a friend of Richards who would drive them to the resort.

[18]

At
    the resort, Ms. Burnett gave Teneka Morris $50 or $75 as her share of the cost
    of the room she shared with Morris. Over the weekend, Ms. Burnett was out of
    the room for all but about eight or nine hours, but Morris remained in the room
    for much of the time. On the last night she stayed at the resort, Ms. Burnett
    was at the casino and club all night. Ms. Morris remained in their room.

Return to the Hotel

[19]

On
    the day of her departure, Ms. Burnett had breakfast on her own. She then picked
    up a money order for $100 Moscow had sent her in case she had overweight
    charges to pay at the airport. She returned to the hotel, packed some items
    back in her suitcase and took the shuttle to the airport.

The Airport in Panama

[20]

At
    the airport in Panama, once again, Ms. Burnetts bags were overweight. She
    threw out some items that had been ruined by rain when they had to wait for
    their ride to Playa Blanca. She transferred other items to her handbag. She
    paid an overweight charge at the airport.

[21]

Ms.
    Burnett noticed nothing odd about her suitcases at the airport in Panama. But
    then again she did not look carefully at the luggage or scrutinize it in any
    way.

The Arrival at Pearson

[22]

When
    she approached customs at Pearson on her return to Canada, Ms. Burnett had not
    filled in fully the form indicating the value of any goods she was bringing
    into Canada from Panama. Moscow had told her not to do so. When an officer
    pointed this out to her, she said $50, an admittedly false amount.

[23]

In
    the baggage hall, a CBSA officer asked Ms. Burnett and Ms. Morris some
    questions about the details of their trip. Where had they gone. Where had they stayed.
    With whom had they travelled. And similar questions. Then the officer referred
    both women to secondary inspection.

[24]

At
    secondary inspection Ms. Burnett volunteered to go first. She acknowledged that
    the bags she had brought with her were hers. She was aware of their contents. She
    had packed the bags herself. To the CBSA officer who conducted the inspection,
    Ms. Burnett appeared nervous. She stammered when she spoke. Her voice trailed
    off as she responded to questions. Her hands shook. And she was breathing
    heavily.

The Search

[25]

A
    CBSA inspector searched both of Ms. Burnetts suitcases. After removing the
    contents of the suitcases, the officer x-rayed the bags. He noticed an anomaly
    in each. He cut into each suitcase. When he did so, the officer found a white
    powder secreted inside. Ms. Burnett was arrested and handcuffed. A test
    confirmed the white powder was cocaine.

[26]

The
    secret compartment in each of Ms. Burnetts suitcase was well-hidden and not
    readily apparent. The suitcase revealed no visible signs of tampering. The
    inspector found the compartment only by disassembling the suitcases with a
    screwdriver. When empty each suitcase weighed an extra three pounds, but this
    would not be readily apparent, especially when the luggage had been overfilled
    with clothing and souvenirs.

[27]

The
    secret compartment in each suitcase contained 1.5 kilograms of 90 percent pure
    cocaine. Sold by the kilogram at the wholesale level, the cocaine was valued at
    between $105,000 and $111,000. If sold on the street in its original state of
    purity by the gram, its value varied between $242,000 and $332,000.

The Accuseds Evidence at Trial

[28]

Alise
    Burnett and Zoe Layne were tried jointly on an indictment containing a single
    count of importing cocaine. Each denied knowledge of the drugs in the
    suitcases.

[29]

Alise
    Burnett denied being part of or having overheard any discussions about
    importing drugs into Canada. She had no reason to suspect Moscow or anyone else
    was involved in such a scheme. She claimed that she had been duped by Moscow
    and Richard. She claimed the two were helped along by Teneka Morris, who had
    unrestricted access to Burnetts luggage when Ms. Burnett was out of their
    hotel room and Morris remained there.

[30]

In
    her evidence before the jury, Ms. Layne testified that she too was unaware that
    there was cocaine in her luggage. She said that, on the morning of their flight
    back to Canada, Keisha Sunley-Paisley cried and apologized to her without
    explaining the reasons for her apology. Ms. Layne also testified that Richard
    paid for the mini-vacation at Playa Blanca and gave everyone spending money.

The Grounds of Appeal

[31]

Alise
    Burnett (the appellant) advances three grounds of appeal. She says that the
    trial judge erred:

i.

in
    permitting an expert to give anecdotal evidence about drug couriers
knowledge
of contraband in their luggage and in failing to instruct the jury about how to
    assess expert evidence in general and to disregard anecdotal portions of the
    experts evidence;

ii.

in
    permitting Crown counsel to introduce evidence of the appellants low income as
    evidence of motive and failing to instruct the jury about using this evidence;
    and

iii.

in instructing
    the jury that the crucial element of knowledge could be proven through the
    doctrine of wilful blindness. The trial judge also erred in failing to properly
    instruct the jury on the effect of a failure to put a suggestion of wilful
    blindness to the appellant in cross-examination on the availability of this
    basis for proving knowledge.

Ground #1: The Expert Evidence Issue

[32]

This
    ground of appeal has to do with the admissibility and use of a portion of an
    experts opinion evidence. To be more specific, it requires an assessment of
    the impact of a failure to provide general instructions about the assessment of
    expert opinion evidence and specific instructions about the limitations on use
    of specific features of that evidence.

[33]

Before
    any canvass of the arguments advanced in this court and the relevant principles,
    it is essential to identify the precise subject-matter of the complaint, both
    as it concerns the evidence adduced and the instructions given to the jury
    about its use.

The Additional Background

[34]

At
    trial, the Crown called Corporal Gregory Connolly, a member of the RCMP, to
    give expert opinion evidence about some facets of the drug trade, including
    methods of distribution, valuation and pricing of the drug, methods of use, methods
    of packaging, methods of importation, and hierarchies within the scheme for
    importation and trafficking.

[35]

Trial
    counsel did not contest the officers qualifications to give expert opinion
    evidence on these issues. And for the most part, the appellant takes no issue
    with the admissibility of Cpl. Connollys evidence.

The Impugned Evidence

[36]

Towards
    the end of his examination-in-chief, Cpl. Connolly was asked to explain his
    opinion about the drug importation hierarchy. His lengthy response included the
    following description of couriers:

Most couriers, its usually for financial purposes or gain that
    theyre going to be paid a, either a flat fee or a, a fee per kilo, for their,
    for their involvement. So theyre going to receive a financial compensation for
    that. When that courier is at the trans-shipment country, such as Panama, that
    person, the courier, may not be the person that does the secretion into  have
    it in the, in this, in the hypothetical of, say, the luggage and suitcases.
    They are not be  they may not be the person that does all the repackaging.

Obviously, there has to be a, a certain amount of
    sophistication whereby you have eight similar type suitcase already
    preformatted for packaging or determined by the size of the packaging or, say,
    of the, of the suitcases, the means of which the dimensions to secrete and
    conceal behind the false wall of the, of the suitcase. So thats already been
    pre-planned and normally done by the, the middlemen back in the trans-shipment
    country. So the courier, because it comes down to the, with the courier,
the
    courier knows that theyre involved with a  in, in my experience, has
    knowledge that theyre involved with a, an illegal activity.


They may not actually physically see the product thats, thats
    in the suitcase, but theyve allotted someone to provide care and control of
    their suitcase for a period of time, or access to a location in order, or they received
    a, say, suitcase down, and theyve done a substitution on what they originally
    travelled with. [Emphasis added.]

Neither defence counsel at
    trial objected to the introduction of this evidence.

[37]

In
    cross-examination, trial counsel for the appellant (not counsel on appeal) suggested
    to Cpl. Connolly that one or more of the four travellers might have been
    carrying the drugs unknowingly, as unwitting dupes of others who knew about the
    contraband. The officer responded:

Its a possibility, but, however, I believe theres a, in a
    situation where youre dealing with the quantities that were dealing with,
    there is a measure of trust that the bags dont go inherently lost or misplaced
    or, you know, damaged on route and then it gets replaced en route.
There is
    a measure of trust and knowledge that, thats placed within, within [couriers]
.
    [Emphasis added.]

Trial counsel commented that makes, that makes sense.
    I totally understand what youre saying.

[38]

Trial
    counsel for the co-accused Layne suggested to Cpl. Connolly the possibility
    that two of the four travellers would know about the scheme and would keep the
    other two, who were unaware of the scheme, onside. The officer answered:

Again, it comes down to I, I believe a trust factor because
    these are significant quantities and there has to be a, a general agreement by
    all, all parties that they work in concert with one another because if one
    falls, they all fall in terms of their, their knowledge and their ability to
    successively traverse through the international border.

[39]

At
    other points in his cross-examination by counsel for the co-accused Layne, Cpl.
    Connolly acknowledged the possibility that couriers may be unaware of their
    carriage of contraband. He also conceded that there would be advantages
    associated with blind couriers when re-entering the country: unaware of the
    presence of their cargo, they would appear less nervous to border officials.

The Addresses of Counsel

[40]

Counsel
    on both sides invoked the testimony of Cpl. Connolly in their closing addresses
    to the jury. The Crown argued that the value of the drugs imported reflected a
    significant amount of trust in the couriers who would have knowledge of the
    contraband and their role in its importation. Counsel for the co-accused
    focused on that portion of the officers testimony that allowed for the
    possibility of a blind courier.

The Jury Instructions

[41]

When
    the trial judge qualified Cpl. Connolly as an expert witness on the methods of
    importation and distribution of cocaine, as well as the pricing and
    determination of the value of the drugs, he told the jury:

i.

that
    he would explain this in more detail later; and

ii.

that,
    ultimately, the jury was to assess the evidence of Cpl. Connolly, an expert, just
    as the jury would assess the evidence of all the witnesses.

[42]

In
    his final instructions to the jury, the trial judge did not include the
    traditional instruction on expert evidence. He did point out to the jury that the
    simple fact that a witness was a police officer did not mean that his evidence
    was any more worthy of belief than the testimony of any other witness. Evidence
    from police officers, the judge told the jury, was to be assessed in the same
    manner and according to the same tests as the testimony of any other witness.

[43]

The
    trial judge did summarize some features of Cpl. Connollys evidence in his
    charge to the jury. He pointed out that the officer had said that considerable
    effort had been expended to conceal the drugs in each suitcase and that couriers
    do not generally know the higher-ups in the distribution scheme. He also
    mentioned Cpl. Connollys testimony that importation schemes do exist where
    couriers are not aware of the contraband they carry and that an advantage to
    couriers who are unaware of the drug shipment they carry is that they do not
    appear to be nervous with border officials on their return to Canada.

The Arguments on Appeal

[44]

The
    principal submission of the appellant is that the trial judge erred in
    permitting Cpl. Connolly to testify that, in his opinion, couriers
know
that they are carrying drugs. The evidence was inadmissible because it was not
    relevant or necessary to a determination of the critical issue at trial 
    knowledge. In addition, the opinion expressed trenched on the ultimate issue at
    trial and the probative value of the evidence was outweighed by its prejudicial
    effect.

[45]

The
    appellant says that this testimony fell afoul of the prohibition against
    anecdotal evidence put in place by
R. v. Sekhon
, 2014 SCC 15, [2014] 1
    SCR 272. This evidence was irrelevant because it involved an extrapolation from
    the witness prior experience to an assertion of actual knowledge on the part
    of the appellant. Further, it was unnecessary because the jury could reach its
    own conclusion on the knowledge issue on the basis of the whole of the evidence
    adduced at trial without the need for the assistance of expert testimony. In
    addition, the evidence was overwhelmingly prejudicial in that it tended to
    reverse the burden of proof and spoke to the ultimate issue that was for the
    jury to decide.

[46]

The
    error in admitting the evidence, the appellant continues, was compounded by the
    trial judges failure to provide any instruction to the jury about their
    handling of this evidence. There was neither a general instruction about the
    assessment of expert opinion evidence, nor a specific instruction cautioning
    jurors not to simply defer to the opinion of Cpl. Connolly on the critical and
    ultimate issue of the appellants knowledge of the drugs in her luggage.

[47]

The
    appellant argues that the erroneous reception of this evidence should result in
    a new trial. This was not some harmless error. Rather, it was a mistake that
    permitted the jury, without proper instruction, to consider inadmissible
    evidence to resolve the crucial factual issue at trial  knowledge. The
    admissible evidence relevant for the jury to consider in their determination of
    this issue was far from overwhelming: witness the jurys inability to reach a
    verdict on the co-accused Layne, whose evidence indicated that one of the other
    travellers gave her a tearful acknowledgment of responsibility.

[48]

The
    respondent is of a different mind. Not only was the contested evidence properly
    admissible, but the absence of any general or specific instruction about its
    use caused the appellant no prejudice in this case.

[49]

On the admissibility issue, the respondent says that the
    bulk of Cpl. Connollys evidence consisted of
general
opinion about
    subjects upon which counsel agreed he was qualified to testify. The same type
    of evidence was given in
Sekhon
without
    any suggestion that its reception was improper. The mere fact that the evidence
    brushed up against the ultimate issue at trial affords no ground for exclusion.
    The old ultimate issue rule did not foreclose its reception since it no longer
    operates as a rule of exclusion. And the Supreme Court of Canada in
Sekhon
has made it clear that the value of the drugs
    imported can support an inference that their owner would only entrust their carriage
    to a trusted and reliable individual, and that with proven reliability and
    trust naturally comes some knowledge about the contraband.

[50]

The
    respondent says that the challenged testimony does not amount to anecdotal
    evidence barred by
Sekhon
. Cpl. Connolly did
not
say that he
    has never seen a blind courier, as the witness did in
Sekhon
.

And that is what rendered the
    opinion of the expert in
Sekhon
irrelevant and unnecessary. Cpl. Connollys
    testimony offered nothing specific about the appellants state of mind. Not
    directly. And not, as in
Sekhon
, by extrapolation from prior
    experience. But what is more to the point here is that Cpl. Connolly not only
    acknowledged the possibility of a blind courier, but conceded that employment
    of such a person may have advantages for the scheme of importation since a
    blind courier would be less likely to appear nervous on their return to Canada.

[51]

The
    respondent accepts that, as a general rule, the presiding judge instructs the
    jury both when expert opinion evidence is first admitted at a criminal trial
    and again in the final jury charge. The instructions explain how the jury is to
    assess this evidence and use it in reaching their decision. Admittedly, that
    was not done here. But the substance of that instruction differs little from
    the instruction given about the assessment of testimony from other non-expert
    witnesses. Here, the instructions were pre-vetted with counsel, including two
    defence counsel. No one sought an expert evidence instruction. No one objected
    to its omission. Nor was any complaint made about the necessity for or the
    absence of any more nuanced direction. No harm. No foul.

The Governing Principles

[52]

This ground of appeal raises two discrete but related
    issues. The first has to do with the admissibility of a part of the expert
    opinion evidence of Cpl. Connolly which is said to have infringed the
    prohibition against anecdotal evidence imposed by
R. v. Sekhon,
2014
    SCC 15, [2014] 1 SCR 272
.
The
    second concerns the adequacy of instructions to the jury about the use of this
    evidence in reaching its verdict.

[53]

First, admissibility.

[54]

In
Sekhon
, like this case, the appellant was charged with
    importing cocaine, in addition to possession of cocaine for the purpose of
    trafficking. He was arrested on his return to Canada after border officers
    searched a secret compartment in a truck he was driving and found 50 bricks of
    cocaine each weighing about 1 kilogram. The truck belonged to a friend who had
    asked the appellant to drive it back to Canada from the United States.

[55]

In
Sekhon
, as here, the Crown called a police officer who was
    qualified as an expert in the customs and practices of the drug trade including
    chains of distribution, distribution routes, means of transportation and
    methods of concealment, packing, costs, valuation, and profit margin. The
    witness testified that the value of cocaine seized was between $1,500,000 and $1,750,000.
    He explained that the recruitment of couriers took time and that carriage of
    the amount of drugs involved would not be entrusted to a first-time courier.

[56]

Towards
    the end of the examination in chief of the expert in
Sekhon
, this
    exchange occurred between the witness and Crown counsel:

Q:  Officer, you described earlier that youve been involved in
    approximately 1,000 investigations involving the importation of cocaine over
    your 33-year career?

A:  That is correct, Your Honour, yes.

Q:  In approximately how many of those investigations were you
    able to determine that the person importing the cocaine did not know about the
    commodity that they were importing?

A:  I have never encountered it, personally.

Q:  Have you ever heard of a -- the use of a blind courier or a
    courier who doesnt know about the commodity that he is driving?

A:  I -- Ive certainly heard that argument being raised on --
    on occasion, primarily in court, not during my investigations.

[57]

The
    excerpted testimony was characterized as anecdotal evidence. Its admissibility was
    analyzed in accordance with the threshold requirements of
R. v. Mohan
,
    [1994] 2 S.C.R. 9, at pp. 20-21, that is to say:

i.

relevance;

ii.

necessity;

iii.

the absence of
    an exclusionary rule; and

iv.

a properly
    qualified expert.

[58]

The
Sekhon
court found that the anecdotal evidence failed to satisfy
    either the relevance or necessity requirements of
Mohan
. The
    testimony, though perhaps logically relevant, was not legally relevant. This
    was so because the guilt or innocence of others whom the witness had
    encountered in the past was legally irrelevant to the guilt or innocence of
Sekhon
because it was of no probative
    value on the issue of

Sekhons
knowledge of the cocaine in the secret compartment. And the testimony was not
    necessary because a decision on the knowledge issue was not beyond the
    experience and knowledge of the trial judge and not something that was
    technical or scientific in nature:
Sekhon
, at para. 49.

[59]

Failure
    to meet the relevance and necessity requirements of
Mohan
was
    sufficient to render the anecdotal evidence in
Sekhon
inadmissible.
    However, the court pointed out that this type of anecdotal evidence also had a
    prejudicial effect on the proceedings. This was so because it appeared to
    require an accused to somehow prove that, regardless of the experts prior experience,
    the accuseds situation was different. Such a result was at odds with the
    fundamental tenet of our justice system that it is for the Crown to prove the
    fault element of a crime beyond a reasonable doubt:
Sekhon
, at para.
    50.

[60]

Despite
    the erroneous reception of the anecdotal evidence which it considered
    irrelevant, unnecessary and prejudicial, the
Sekhon
court dismissed
    the appeal. The court concluded that, apart from the anecdotal evidence, the
    case for the Crown was overwhelming. In addition, the trial occurred before a
    judge sitting without a jury:
Sekhon
, at paras. 54-56.

[61]

Apart
    from the anecdotal evidence, the
Sekhon
court did
not
suggest
    that the balance of the expert evidence given at trial was inadmissible. This
    included testimony about the nexus between the value of the shipment and the
    experience level of the courier. This evidence, unlike the anecdotal evidence,
    did not invoke the prohibited chain of reasoning from general experience to a specific
    state of mind.

[62]

Two
    decisions of this court, each rendered after
Sekhon
, provide some
    assistance on the admissibility issue.

[63]

In
R. v. Singh
, 2014 ONCA 791, 122 O.R. (3d) 481, the court distinguished
    between
general
opinions
about the participation of drug couriers in the movement of contraband,
    including the unlikelihood of inexperienced and unknowledgeable couriers being
    involved in the importation of significant quantities of drugs and
case-specific
opinions
bearing directly
    on the appellants credibility and his alleged knowledge of the cocaine in the
    vehicle:
Singh
, at paras. 21-22. The former opinions were admissible,
    the latter not:
Singh
, at paras. 35-37.

[64]

In
R. v. Bains
, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal
    refused, [2015] S.C.C.A. No. 478, this court held that where an accused is said
    to be in possession of a controlled substance of significant value, a trier of
    fact may infer:

i.

knowledge
    of the nature of the subject-matter; and

ii.

knowledge
    of the substance itself.

These inferences may be available from the objective
    improbability that such a valuable quantity of drugs would be entrusted to
    anyone who did not know the nature of the contents in the means of transport:
Bains
,
    at para. 157.

[65]

Second,
    instructions on the use of expert opinion evidence.

[66]

None
    would gainsay that where expert opinion evidence is admitted in a jury trial,
    the presiding judge instructs the jury about how to assess the evidence and how
    to apply it in deciding the issues to which it relates. Most often the first
    instruction is given mid-trial when the first expert evidence is received. The
    same instruction may be repeated as more experts are called or the jury simply
    reminded of the application of the prior instruction to the evidence of subsequent
    witnesses. The mid-trial instruction is repeated in the charge in similar
    terms.

[67]

Typically a jury instruction on expert opinion evidence will include:

i.

a description of the relationship between knowledge of a technical
    subject, the qualifications of an expert, and their ability to express opinions
    on the subject;

ii.

a brief summary of the expert evidence adduced at trial;

iii.

and a direction on how to assess the testimony of experts and to
    determine its impact on the decisions required of the jury at the end of the
    trial.

As part of the latter direction, jurors are told that
    they are to evaluate the evidence of experts in the same manner as the
    testimony of any other witness and may believe or rely upon it as much or as
    little as they see fit.

[68]

A
    final point concerns the obligations imposed on a trial judge sitting with a
    jury when an experts opinion strays beyond the boundaries imposed upon it at
    the outset. In these circumstances, whether the problem arises due to a failure
    to qualify the expert in the particular area or, as in
Sekhon
, the
    expert giving anecdotal evidence, the trial judge is obliged to instruct the
    jury not to consider the inadmissible aspects of the evidence:
Sekhon
,
    at paras. 46-48;
R. v. Marquard
, [1993] 4 S.C.R. 223, at p. 244.

The Principles Applied

[69]

As
    I will explain, I would give effect to this ground of appeal.

[70]

First,
admissibility
.

[71]

Much
    of Cpl. Connollys testimony was to the same effect as those portions of the
    evidence of Sgt. Arsenault in
Sekhon
that the Supreme Court of Canada
    found unobjectionable. This evidence was about:

i.

chains
    of distribution;

ii.

the value
    of the drugs imported;

iii.

the recruitment
    of couriers;

iv.

the relationship
    between couriers and other participants in the distribution chain; and

v.

the trust
    relationship between the principals and couriers involved in the movement of
    high-value shipments.

This evidence, as in
Sekhon
,
    was of a general nature. Although its origins were in the experience of Cpl.
    Connolly, no effort was made to draw a link between Cpl. Connollys prior
    experience and the appellants state of mind, including her knowledge of the contraband
    in her suitcases.

[72]

But,
    as in
Sekhon
, the evidence of Cpl. Connolly went further: the courier
    knows that theyre involved with a  in, in my experience, has knowledge that
    theyre involved with a, an illegal activity.

[73]

The
    opinions expressed by Sgt. Arsenault in
Sekhon
and Cpl. Connolly in
    this case are in different terms. Sgt. Arsenault testified that he had heard
    about but never seen a blind courier in over 1,000 drug investigations. Cpl.
    Connolly testified that couriers
know
what they are involved with. The
    opinion of each officer was that of an expert, founded on their experience in
    other cases. In each case that opinion was proffered as the basis for a chain
    of reasoning from prior experience to the state of mind of a specific
    individual  the accused on trial. And in each case that state of mind 
    knowledge of the contraband  was the critical issue for the trier of fact to
    decide.

[74]

In
    his testimony Cpl. Connolly acknowledged the possibility of a blind
    courier, that is to say, a person who was unaware that their luggage contained
    contraband. At the same time, however, he underscored that there was a measure
    of trust and knowledge thats placed within, within [couriers]. In
Sekhon
,
Sgt. Arsenault was not so flexible in his opinion.

[75]

Despite
    the differences in the manner in which the experts testified in
Sekhon
and in this case, I am satisfied that
Sekhon
controls the
    determination of the admissibility issue in this case. What
Sekhon
enjoins is evidence that invites a trier of fact to reason from a generalized
    conclusion based on prior experience to a specific state of mind of the person
    charged. The guilt or knowledge of one (the person charged) cannot be
    determined by reference to the guilt or knowledge of unrelated others. And that
    prohibition applies here.

[76]

Second,
    instructions to the jury.

[77]

In
Sekhon
, the court accepted that where anecdotal evidence is admitted,
    a remedial instruction advising the jury to disabuse their minds of the
    inadmissible parts of the evidence will generally suffice to counter any
    prejudice that may ensue:
Sekhon
, at para. 48.

[78]

In
    this case, the jury did not receive the traditional instruction on how to
    evaluate expert opinion evidence or on how to use it in deciding whether the
    Crown had proven the critical issue of knowledge beyond a reasonable doubt.
    More importantly, they did not receive any instruction enjoining their use of
    the inadmissible portion of Cpl. Connollys opinion evidence in reaching their
    verdict. In other words, the antidote to prejudice was not administered. The
    prejudice remained unabated.

[79]

To
    be fair to the trial judge, counsel on all sides did not seek an instruction on
    expert evidence, or complain about its omission. Nor did the trial judge have
    the benefit of the decision of the Supreme Court of Canada in
Sekhon
.

[80]

After
    anxious consideration, I am satisfied that the reception of the inadmissible
    portion of Cpl. Connollys evidence, coupled with the absence of a remedial
    instruction enjoining its use, warrants setting aside the appellants
    conviction and ordering a new trial. After all, this evidence, left to the jury
    without proper instruction and relied upon by the Crown in advancing its case
    in proof of guilt, related to the single contested issue at trial.

Ground #2: The Evidence of Low Income

[81]

The
    second ground of appeal also asserts error not only in the reception of
    evidence, but also in a failure to provide adequate instruction to the jury
    about the use of that evidence in reaching a verdict. In this case, the
    evidence relates to the financial condition of the appellant. This evidence,
    the Crown contended, established a financial motive for the appellant to commit
    an offence for which she would receive a financial reward.

[82]

To
    better understand the nature of this complaint, the evidence adduced and the
    use made of it at trial need be sketched out.

The Evidence of Income

[83]

A
    police officer who had obtained access to the appellants tax returns testified
    that the appellants income for the 2010 taxation year was $22,142, when she
    also had a tuition expense of $4,756. The following year  the year of her
    arrest  the appellants total income was $2,125. In other words, the
    appellants income decreased by 90 percent in 2011 from what it had been in
    2010.

[84]

The
    taxable incomes of the co-accused Layne for the same taxation years were $4,501
    and $1,881 respectively.

The Address of Crown Counsel

[85]

In
    her closing address to the jury, the trial Crown argued that the financial
    situation of the appellant and co-accused could provide a motive for each to
    commit the offence charged. She reminded the jury of the expert evidence of
    Cpl. Connolly about how couriers were compensated for their work by cash
    payments or payments for the trip itself. The Crown described the appellant and
    co-accused as not coming from a financially solid position. She did not
    explain how evidence of motive could be used by the jury in reaching its
    decision, but reminded the jury that the Crown did not have to prove motive in
    order to establish guilt.

The Charge to the Jury

[86]

In
    his charge to the jury, the trial judge included three references to motive.

[87]

The
    trial judge defined motive and explained how evidence of motive could be used
    in proof of guilt. He pointed out that motive was not an essential element of
    the offence and thus it need not be proven by the Crown to establish an
    accuseds guilt. He described the motive alleged as the relatively low income
    of the appellant and the very low income of the co-accused Layne. In
    concluding his instruction on motive, the trial judge cautioned the jurors
    against propensity reasoning:

You are not, however, allowed to reason that because a person
    has a low income she is more likely to commit a criminal offence. That type of
    reasoning would obviously not be fair, given that there are many low income
    people who never commit a crime and many high income people who do.

[88]

Later
    in his charge, the trial judge reminded the jury briefly about the substance of
    the evidence alleged to amount to motive and, in apprising the jury of the
    position of the Crown, explained the Crowns reliance on evidence of motive to
    prove the appellants guilt.

[89]

Defence
    counsel did not object to the introduction of evidence of the appellants
    financial state at trial nor to the Crowns reliance upon it as evidence of
    motive. Similarly, counsel did not object to any aspect of the trial judges
    instructions on motive.

The Arguments on Appeal

[90]

The
    appellant says that, standing alone, evidence of low income cannot serve as
    evidence of a motive to commit a crime for profit. Evidence of low income is
    not logically probative of motive. Besides, the evidence is inherently
    prejudicial in that it has a tendency to promote a thinly-disguised form of impermissible
    propensity reasoning. What is more, it is simply unfair to suggest that persons
    with low income are motivated by that very fact to commit crimes for financial
    reward.

[91]

In
    some instances, the appellant allows, evidence of low income may be received.
    But, she argues, there must be some case-specific basis to establish its
    relevance apart from some form of propensity reasoning. In this case, she
    submits, no case-specific foothold can be advanced; thus, the evidence should
    not have been received.

[92]

Evidence
    of low income, the appellant continues, is inherently prejudicial. Thus, in
    cases in which it is received, trial safeguards must be invoked to stifle this
    inherent prejudice. A robust injunction against propensity reasoning. A full
    instruction on the issue of motive, including a reminder that absence of proven
    motive tends to support the presumption of innocence. And in this case, a
    reference to the appellants evidence that she paid for her own vacation
    package.

[93]

The
    respondent counters with a submission that no principle precludes the reception
    of evidence of motive as part of the prosecutions case against an alleged drug
    courier, provided that evidence is relevant, contravenes no exclusionary rule
    of the law of evidence and is more probative than prejudicial. Evidence of an
    alleged couriers straitened financial situation, including evidence that the
    person is under financial pressures, is probative when it is alleged that there
    was a financial reward for services rendered. It is only evidence of general
    impecuniosity offered to establish the inclination or propensity of the alleged
    courier that is impermissible.

[94]

In
    this case, the respondent says, the evidence discloses that in the months prior
    to the trip to Panama, the appellant was under significant financial pressure.
    Her long-standing relationship with a partner who had supported her and paid
    the household expenses had ended. She was living at a friends place, her
    clothing and other necessities contained in garbage bags. Her working hours in
    her main job had been reduced. The second job she worked was part-time, the
    assignments sporadic, and the income variable. Her monthly income was about
    $1,000 and her yearly income at a 90 percent decrease from the previous year. Cumulatively,
    these circumstances could sustain a finding that the appellant had a financial
    motive to commit an offence for financial gain.

[95]

The
    respondent denies that there was any inadequacy in the trial judges final
    instructions to the jury on the issue of motive. True, the trial judge could
    have said more on the subject. But that could be claimed in almost every case.
    These instructions were proper. They need not have been perfect. They responded
    to the appellants principal concern by including a firm injunction against propensity
    reasoning from impecuniosity to guilt. They attracted no objection. No more
    need have been said.

The Governing Principles

[96]

The
    principles that control the decision on this ground of appeal are those of
    general application in connection with evidence of motive, about which there is
    no dispute, and those relating more specifically to evidence of financial
    condition as evidence of motive, about which the parties are divided.

[97]

First,
    a few basic points about evidence of motive.

[98]

Evidence
    of motive is circumstantial evidence of guilt and its relevance is established
    by a prospectant chain of reasoning. In other words, the reasoning is that a
    prior state of affairs justifies an inference that the state of affairs existed
    at a later and material point in time and resulted in conduct that constituted
    the
actus

reus
of an offence. Said another way, a
    subsequent course of conduct is inferred from the existence of prior state of
    mind:
R. v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 64;
IA
    Wigmore on Evidence
(Tillers Rev)
,
    at § 43, pp. 1138-1142.

[99]

Evidence
    of motive is relevant and admissible even though motive is
not
an
    essential element of an offence charged and thus legally irrelevant to criminal
    responsibility:
R. v. Lewis
, [1979] 2 S.C.R. 821, at p. 833;
IA Wigmore
,
    at
§ 118, pp. 1697-1701. Evidence of motive may assist in
    proof not only of elements of the
actus reus
of
    an offence, but also of the state of mind or fault element that accompanied it:
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 113.

[100]

Proven absence
    of motive tends to support the presumption of innocence. But absence of proven
    motive is not the equivalent of proven absence of motive:
Lewis
, at
    pp. 835-836. The importance of evidence of motive in the purported
    demonstration of guilt varies from one case to the next. Motive is of greater
    importance where the case for the Crown consists entirely or substantially of
    circumstantial evidence:
Lewis
, at pp. 834-835 and 837-838.

[101]

What may
    constitute a motive for a person to commit a crime and the circumstances that
    might excite that motive involve the whole range of human affairs. To catalogue
    the various facts of human life with reference to their potency to excite a
    motive would be at once pedantic and useless:
II Wigmore on Evidence
(Chadbourn Rev),
§ 389, at pp. 416-7.

[102]

We distinguish
    two evidential steps when evidence of motive is tendered. The first is that
    since a motive is likely to lead to the doing of the relevant act, the presence
    of the motive in an accused is likely to lead the accused to do the act. In
    this step in the argument, we assume that, in some manner or another, the
    motive is established as a fact. But of course the motive must be proven. For
    the most part, the evidence tending to prove the motive is circumstantial. It
    consists of evidence of conduct and events about the accused tending to excite
    the motive. But what conduct and outer events are probative of the likely
    existence of the motive is a different question from the relevance of the
    motive to show the probable occurrence of the act induced by it. The latter is
    not apt to produce many evidentiary disputes. The former raises several:
IA
    Wigmore
, at.
§

117,
    pp. 1696-1697.

[103]

In a variety of
    ways, the pecuniary circumstances of one person may tend to excite a motive in
    that or another person. For example, an accuseds lack of money might be
    relevant to show the probability of that accuseds desire to commit an offence
    in order to obtain money. But, in practical terms, might not such a doctrine
    put a poor person under much unfair suspicion and invite propensity reasoning?
    Perhaps less so in cases of merely financial crime than for crimes of violence:
II Wigmore
, at
§ 392, pp. 431-433.

[104]

Previous
    authority has held that financially straitened circumstances may provide an
    accused with a motive to commit a crime for a financial reward:
R. v.
    Shapiro
, (1922) 40 C.C.C. 14 (Que. Q.A.), at p. 15.

[105]

In
R. v.
    Mensah
, [2003] O.J. No. 1096 (C.A.), leave to appeal refused, [2003]
    S.C.C.A. No. 207, the Crown relied on evidence that the appellant was in
    receipt of employment insurance benefits to establish a motive to import
    heroin. On appeal, the appellant argued that the admission of this evidence
    exploited stereotypical views about economically disadvantaged persons and thus
    amounted to inviting the jury to follow a path of propensity reasoning to find
    guilt. This court agreed with the general proposition that evidence that an
    accused

i.

has
    a certain level of income; or

ii.

is on
    government-assisted income

is, on its own, insufficient to
    support an inference of a motive to commit a profit-motivated crime. Further,
    this evidence must not be used as a basis for a disguised form of propensity
    reasoning:
Mensah
, at para. 8.

[106]

However, the
Mensah
court continued, where the evidence could leave it open to the jury to find
    that the appellant was experiencing some financial pressure and that his
    decision to travel to Ghana was not for the reason he stated but to obtain
    money through crime, the evidence was admissible to establish a motive for the
    offence committed:
Mensah
, at para. 10.

[107]

A final point
    has to do with jury instructions when evidence about an accuseds financial
    status is adduced to establish motive for a crime involving financial reward.
    In some, but not all cases of this nature, it may be necessary to instruct the
    jury not to engage in propensity reasoning. In other words, that the jury is
not
to reason that those who are poor or are in receipt of government assistance
    are the type of persons who commit profit-motivated crimes and thus an accused
    was more likely, for that reason, to have committed the offence charged:
Mensah
,
    at paras. 11-12.

The Principles Applied

[108]

This ground of
    appeal, like the first, targets two aspects of the evidence of the appellants
    financial circumstances at the time of the offence. The first focuses on the
    admissibility of the evidence, the second contests the adequacy of instructions
    to the jury about its use in reaching a verdict.

[109]

As I will
    explain, I would reject this ground of appeal. The evidence was properly
    admitted at trial and its use adequately explained to the jury.

[110]

First, the
    threshold issue of whether the evidence was properly received at trial.

[111]

Evidence is
    receivable in a criminal trial if it satisfies three requirements: relevance, materiality,
    and admissibility.

[112]

It is difficult
    to gainsay that a lack of money is capable of supporting an inference of a
    motive to commit an offence for financial gain. It follows that evidence that a
    person was subject to financial pressures at the time she or he is alleged to
    have committed an offence typically committed for financial reward is relevant
    in a prosecution of that person for the offence. It is notorious that the
    threshold for relevance is not rigorous or demanding. It is sufficient that the
    facts sought to be proven by the introduction of the evidence is slightly more
    probable than it would be without the evidence.

[113]

Motive is not an
    essential element of the offence charged. But evidence of motive is material to
    a demonstration of guilt. This satisfies the materiality requirement.

[114]

To be
    admissible, evidence that is relevant and material must not offend any
    admissibility rule of the law of evidence. In this case, the admissibility
    rules which could mandate exclusion are those that prohibit propensity
    reasoning as a pathway to proof of guilt and that require that the probative
    value of an item of evidence tendered by the Crown in proof of guilt exceed its
    prejudicial effect.

[115]

I do not dispute
    the general proposition that evidence that an accused has a certain level of
    income or is in receipt of government assistance is insufficient, on its own,
    to support an inference that an accused has a motive to commit a
    profit-motivated crime. Nor do I question that such evidence must not be used
    as a basis of a thinly-veneered form of propensity reasoning.

[116]

But the
    contested evidence here is not of the nature that attracts exclusion. Here, the
    jury was not asked to infer motive solely from the appellants income level.
    Rather, the inference was founded on a series of then-recent financial pressures.
    Loss of financial support from a domestic partner. A change in employment
    income from full-time to part-time status. The need for two jobs to make ends
    meet.

[117]

Prior decisions
    of this court, for example,
Mensah
and
R. v. Phillips
, 2008
    ONCA 726, [2008] O.J. No. 4194, at paras. 50-51, support the reception of the
    contested evidence in this case. In addition, this evidence was received
    without objection at trial. While failure to object is not dispositive of
    admissibility, it is not without significance. Failure to object affords some
    indication that counsel, the person most directly responsible for protecting
    the appellants right to a fair trial, did not consider any potential prejudice
    inherent in or arising from this evidence to warrant a challenge to its
    admissibility.

[118]

Nor can the
    appellant succeed on her claim of inadequate jury instructions about this
    evidence.

[119]

The trial judge
    briefly instructed the jury on the issue of motive and described the evidence
    advanced as evidence of motive. As can often be said, the instruction could
    have been more complete. But it does not follow that further direction was
    necessary or its absence prejudicial to the appellant. The instruction did
    contain a prohibition against propensity reasoning from low income to probable
    guilt, thus reducing the risk of improper use of the evidence.

[120]

Counsel and the
    trial judge discussed the contents of the jury charge before it was delivered.
    And counsel were afforded ample opportunity after delivery to object to what
    was said or left out and to ask that something be added to what had been said.
    Trial counsel made no objection and offered no suggestion for additions,
    corrections or improvements. This ground of appeal fails.

Ground #3: The Instruction on Wilful Blindness

[121]

The final ground
    of appeal challenges inclusion of an instruction which left it open to the jury
    to find the critical element of knowledge established on the basis of wilful
    blindness. The complaint is twofold. First, that there was no evidence adduced
    at trial to put wilful blindness in play as a substitute for proof of actual
    knowledge. Second, that it was unfair to have done so since the case had been
    advanced and defended throughout on the basis of
actual
knowledge.

[122]

The appellant
    does not challenge the substance of the instructions given about wilful
    blindness in the main charge, as well in the trial judges responses to
    questions asked by the jury about wilful blindness during their deliberations.

The Additional Background

[123]

Since one of the
    appellants complaints is that the trial record was barren of any evidence on
    the basis of which a reasonable jury, properly instructed, could conclude that
    the appellant was wilfully blind about the contents of her suitcases, it is helpful
    to recall some of the circumstances disclosed by the evidence at trial.

[124]

The appellant
    had planned a vacation in Jamaica, a place to which she had previously
    travelled. Her plan was to travel alone. She had no luggage to take with her.

[125]

According to the
    appellant, she told Jason Moscow about her vacation plans. Moscow was a person of
    her prior acquaintance whom she had only recently begun to date. Moscow
    suggested Panama as a vacation destination rather than Jamaica. He pointed out
    several attractions in Panama.

[126]

Jason Moscow
    also said that his cousin, Richard, was travelling to Panama in the near
    future. Richard was travelling with three young women. The appellant had met
    them only briefly through Moscow. Richard also knew a travel agent who could
    get the appellant a good deal on a vacation package. The appellant joined the
    group.

[127]

Jason Moscow
    supplied two suitcases to the appellant for her trip. He gave her some money to
    give to Richard who travelled separately from the four women. The appellants
    luggage was overweight when she checked in at Pearson for her flight to Panama.

[128]

In Panama, the
    appellant and Teneka Morris shared a hotel room. The appellant did not unpack
    her suitcases. She simply took things out as she needed them. The suitcases
    were left in her room where Ms. Morris appears to have spent most of her time.
    The appellant spent most of her time out of the room.

[129]

Richard arranged
    and appears to have paid most of the expenses for a side-trip for all four
    women at a resort. Apart from being acquainted with them, Richard appears not
    to have had any more than a casual relationship with any of them.

[130]

The appellants
    suitcases displayed no outward signs of tampering. The secret compartments in
    which the cocaine had been secreted could only be detected by disassembling the
    suitcase after its contents had been removed and examining it further.

[131]

Trial counsel
    for the appellant, as well as counsel for the co-accused Layne, did not object
    to the inclusion of wilful blindness as a basis upon which the Crown could
    prove knowledge. Neither contended that the evidence failed to meet the air of
    reality standard. Neither complained that it would be unfair to permit the
    Crown to rely on wilful blindness to prove knowledge because of the way the
    case had been prosecuted or defended.

The Jury Questions

[132]

During
    deliberations, the jury asked the trial judge, If a person fails to ask
    questions about situations that may be suspicious generally, but not suspicious
    specifically about a drug importation scheme, does that constitute wilful
    blindness? After the trial judge gave a response, the jury again asked,

Is
    it wilful blindness if one fails to ask questions about suspicious
    circumstances that may suggest illegal activity of any kind? Or in this case
    must the suspicion leading to questions be related to illegal drugs?

[133]

Trial counsel
    did not object to the trial judges answers to any of the jurys questions. In
    this court, the appellant concedes that the answers given were clear, correct
    and responsive to the jurys question.

The Arguments on Appeal

[134]

The appellant
    begins with the submission that the evidence adduced at trial failed to meet
    the air of reality standard. Wilful blindness, the appellant says, is
    synonymous with deliberate ignorance. And that standard is not met by what the
    evidence reveals here, a simple failure to inquire. The evidence must
    demonstrate subjective suspicion coupled with a deliberate failure to inquire
    for fear of the result.

[135]

In this case,
    the appellant continues, she was not recruited into a scheme that immediately
    aroused her suspicion. She had made plans to take a Caribbean vacation. She
    changed her plans at Moscows urging to go to another destination and to travel
    with others. She paid for her trip, except for the two nights at a beach resort
    but also contributed money to that cost. She packed the luggage Moscow provided
    herself. She had no reason to be suspicious of any hidden compartments. The
    secret compartments were not readily visible, rather could only be accessed by
    the use of tools to disassemble the suitcase.

[136]

The appellant
    also says that she was not challenged on this issue by the Crown in
    cross-examination. And besides, the case had been prosecuted and defended on
    the basis of
actual
knowledge. Wilful blindness as a basis to impute
    knowledge to the appellant only arose because the trial judge raised it at the
    pre-charge conference. This compounded the unfairness.

[137]

The respondent
    begins with a reminder about the nature of wilful blindness. Recall that wilful
    blindness does not define the
mens rea
or fault element in importing
    any more than it does for any offence. Wilful blindness can substitute for
    actual knowledge whenever knowledge is a component of the
mens rea
or
    fault element of an offence. What the doctrine of wilful blindness does is to
impute
knowledge to an accused whose suspicion is aroused to the point at which she or
    he sees the need for further inquiries, but who
deliberately chooses
not to make those inquiries. The culpability in wilful blindness is justified
    by the accuseds fault in deliberately failing to inquire when she or he knows
    there is reason for inquiry.

[138]

In this as in
    any case, the respondent continues, the evidentiary basis for a finding of
    guilt includes
all
the circumstances surrounding the offence, not
    simply the accuseds testimony and corresponding denials. Here, the accuseds evidence
    discloses inherently suspicious events devoid of details and in defiance of common
    sense. The cumulative effect of the evidence adduced at trial reached the
    standard required to put the doctrine of wilful blindness in play.

[139]

Nor was there
    any unfairness either to the appellant or to the co-accused Layne in
    instructing the jury on wilful blindness in addition to
actual
knowledge. This was not the work of the Crown, rather the doing of the trial
    judge who raised it at the pre-charge conference. Wilful blindness is commonplace
    where an accused advances a blind courier claim in answer to a charge of
    importing. While not dispositive of the availability of wilful blindness to
    establish knowledge, it is of no little significance that neither counsel
    disputed the evidentiary foundation for the doctrine or claimed unfairness in
    its inclusion in the charge.

The Governing Principles

[140]

The parties
    occupy common ground in connection with the principles that govern the doctrine
    of wilful blindness. Their disagreement concerns whether the trial judge was
    entitled to leave wilful blindness to the jury in connection with proof of
    knowledge.

[141]

Subject to
    considerations of fairness, to meet the air of reality standard the Crown must
    be able to point to some evidence in the record which, if believed, would allow
    the jury to make the findings necessary to engage the doctrine:
R. v.
    Briscoe
, 2008 ABCA 327, 237 CCC (3d) 41, at para. 29, affd 2010 SCC 13,
    [2010] 1 S.C.R. 411; see also
R. v. Cinous
, 2002 SCC 29, [2002] 2
    S.C.R. 3.

[142]

Wilful blindness
    does not define the
mens rea
or fault element of particular offences.
    What wilful blindness does is impute knowledge to an accused where that
    accuseds suspicion is aroused to the point where he or she sees the need for
    further inquiries, but makes a
deliberate

choice not to make
    those inquiries. In this way wilful blindness substitutes for actual knowledge
    whenever knowledge is a constituent of the
mens rea
or fault element
    of the crime:
R. v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411, at
    para. 21.

[143]

In some
    instances the evidentiary threshold for wilful blindness may be met by an
    accuseds own evidence. As for example, where his or her testimony discloses
    inherently suspicious events characterized by unclear details and at odds with
    common sense and human experience:
R. v. Morales
, (2006), 81 O.R. (3d)
    161 (C.A.), at para. 26. But the threshold may also be met by the cumulative
    effect of several strands of circumstantial evidence from different sources
    woven together in a mosaic.

The Principles Applied

[144]

As I will
    explain, I would not give effect to this ground of appeal. There was evidence
    on the basis of which a reasonable jury, properly instructed, could make the
    factual findings essential to proof of knowledge through the application of the
    doctrine of wilful blindness.

[145]

Before examining
    the evidentiary predicate said to engage the doctrine of wilful blindness, it
    is necessary to briefly dispose of three submissions advanced by the respondent
    to overcome the claim of error advanced by the appellant.

[146]

First, the Crown
    stresses the importance of the defence counsels failure to object to the
    inclusion or substance of final instructions on wilful blindness.

[147]

As we saw
    earlier, trial counsel for the appellant (as well as counsel for the co-accused
    Layne) did not object to:

i.

the
    trial Crowns reference to wilful blindness as a basis on which the jury could
    find the knowledge component of the fault element proven;

ii.

the trial
    judges inclusion of wilful blindness as a basis upon which the jury could find
    the knowledge component of the fault element proven;

iii.

the substance of
    the charge on wilful blindness; or

iv.

the trial
    judges response to the jurys questions about wilful blindness.

[148]

The impact of
    trial counsels failure to object to a procedure followed, to evidence admitted
    or excluded, or to an instruction given or omitted at trial is a variable, not
    a constant. Said otherwise, there is no fixed relationship between a failure to
    object and the sustainability of a verdict on appeal. Sometimes failure to
    object is telling. Other times, of lesser or no importance.

[149]

In this case,
    the issue we are required to resolve is whether the evidence adduced at trial
    satisfied the air of reality threshold to put the doctrine of wilful blindness
    in play to establish the knowledge component of the fault element in importing.
    The resolution of that issue depends entirely on the evidence adduced. A
    failure to object cannot convert the inadequate to the sufficient. Failure to
    object is not a makeweight. Silence does not transform a deficit into a
    surplus.

[150]

Second the Crown
    argues that, in the final charge, the doctrine of wilful blindness was left for
    consideration only in the case of the co-accused Layne. The Crown relies on a
    part of the charge where the trial judge says, It is the Crown position that
    both accused had actual knowledge of the illicit substances in their suitcases.
    It is the Crowns further position that Ms. Laynes knowledge can also be
    imputed because she was wilfully blind to her situation.

[151]

Singling out one
    passage in the charge to ground this submission cannot carry the day. Read as a
    whole, the charge to the jury and the judges answer to the jurys questions
    about wilful blindness do not distinguish the application of the doctrine as
    between the appellant and the co-accused. Nor does the closing address of the
    trial Crown. Knowledge could be proven by wilful blindness or established by
    evidence of actual knowledge. For both.

[152]

Third, the basis
    of the jurys finding of guilt.

[153]

The respondent
    says that the instruction on wilful blindness did not prejudice the appellant
    because the jurys finding of guilt was likely based on actual knowledge.

[154]

In some cases,
    an appellate court may be able to conclude from an examination of the trial
    record that in all likelihood a jury reached its verdict on the basis of a
    particular definition of an offence or mode of participation on which the jury
    received instructions. But not always. In this case, proof of knowledge was the
    critical factual issue for the jury to decide. It could be proven, the jury was
    told, by evidence demonstrating actual knowledge or evidence showing wilful
    blindness as the trial judge explained it. Nothing in the trial record tilted
    the likely basis of the jurys verdict towards actual knowledge.

[155]

The fact that
    the jurys questions were limited to wilful blindness without distinction
    between the appellant and co-accused does not support the conclusion advanced
    by the respondent  that the jury decided the appellant was guilty on the basis
    of
actual
knowledge. Indeed, the question may well reflect a rejection
    of actual knowledge and a decision based on wilful blindness.

[156]

To determine
    whether there was an air of reality to permit the jury to consider wilful
    blindness in proof of knowledge requires a consideration of the cumulative
    effect of the evidence adduced at trial.

[157]

On the one hand,
    the appellant changed her vacation plans. Panama instead of Jamaica. With
    virtual strangers, instead of alone. With luggage supplied by others. A trip
    that would cost almost all the money she had. Supplemented several times by
    Jason Moscow, a man she had only recently begun dating. Some expenses paid by
    Richard, no last name, Moscows cousin who flew to and from Panama
    separately.

[158]

In Panama, the
    appellant shared a room with Teneka Morris. She never emptied her suitcase,
    simply took out only what she needed. Morris had access to the appellants
    suitcase when the appellant was absent because Morris, on a Caribbean vacation
    which included a side-trip to a resort, spent a lot of time in the room, alone.

[159]

On the other
    hand, the alteration of the luggage to permit transport of the cocaine was
    sophisticated, not visible to the naked eye. The secret compartment was found
    only by disassembling the suitcase. The empty suitcase was heavier than it
    should have been, which again was not something detectable by the casual
    observer.

[160]

Although I
    consider this case as falling close to the line, I am satisfied that, taken as
    a whole, the cumulative effect of the evidence adduced at trial was sufficient
    to permit the submission of wilful blindness to the jury as a means of proving
    knowledge.

[161]

In connection
    with this ground of appeal, the respondent sought leave to introduce as fresh
    evidence:

i.

an
    affidavit of the appellant;

ii.

an
    affidavit of trial counsel for the appellant; and

iii.

transcripts of
    the cross-examinations of the appellant and trial counsel on their respective
    affidavits.

[162]

The materials
    proposed for admission as fresh evidence originated as a result of this courts
    protocol whenever ineffective assistance of trial counsel is being advanced as
    a ground of appeal. Among other things, the protocol requires an appellant to
    waive solicitor-client privilege in connection with communications with trial
    counsel about his or her defence. This waiver results in disclosure of
    information that would otherwise
not
be the subject of forensic
    scrutiny.

[163]

In this case,
    the appellant originally advanced ineffective assistance of trial counsel as a
    ground of appeal. However, she abandoned that ground before the appeal was
    perfected. The claim of ineffective assistance of trial counsel formed no part
    of the appellants written submissions or oral argument in this court. As a
    result, the materials compiled in accordance with the protocol formed no part
    of the record on which we reviewed the grounds of appeal advanced by the appellant.

[164]

Despite the
    appellants abandonment of ineffective assistance of trial counsel as a ground
    of appeal against conviction, the respondent asked us to exercise our
    discretion to receive as fresh evidence under s. 683(1) of the
Criminal
    Code
what would have been the record we would have considered had the
    ineffective assistance of counsel claim been pursued as a ground of appeal. The
    respondent says that some of these materials are relevant to the issue of
    wilful blindness and to our assessment of the appellants testimony at trial.

[165]

Under s. 683(1)
    of the
Criminal Code
the interests of justice control the reception
    of all evidence tendered for admission on appeal. Put quite simply, I am not in
    the least satisfied that it is in the interests of justice to permit reception
    of the proposed evidence. As I have already explained, the appellants claim
    that wilful blindness should not have been left to the jury as a basis upon
    which knowledge of the contraband could be imputed to her fails. Nor can it be
    said that the proposed evidence is relevant to our assessment of the
    appellants testimony at trial. That assessment was the province of the jury
    and is
not
subject to after-the-fact recalibration here.

[166]

I leave for
    another day the more difficult question whether evidence collected as here is
    available for use by the Crown in the manner proposed in this case.

CONCLUSION

[167]

In
    the result, I would allow the appeal, set aside the conviction and order a new
    trial on the indictment.

Released: HSL OCT 1 2018

David Watt J.A.

I agree. H.S.
    LaForme J.A.

I agree. I.V.B.
    Nordheimer J.A.


