



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. DaCosta, 2017 ONCA 588

DATE: 20170707

DOCKET: C60741

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tomika DaCosta

Appellant

Michael Dineen, for the appellant

Kathleen Healey, for the respondent

Heard: July 6, 2017

On appeal from the conviction entered on April 8, 2015 by
    Justice S. Casey Hill of the Superior Court of Justice, sitting without a jury,
    with reasons reported at 2015 ONSC 1478.

REASONS FOR DECISION

A.

Introduction

[1]

The appellant was charged with smuggling 830 grams of cocaine dissolved
    in two bottles of ginger wine she took with her on a flight from Jamaica to
    Toronto. She was convicted of importing cocaine and sentenced to three years
    imprisonment.

[2]

On her conviction appeal, she submits
    that the trial judge erred in his findings of fact and credibility assessments
    and gave unsupportable reasons for rejecting her evidence. The appellant
    requests a new trial.

[3]

For the reasons that follow, we dismiss
    the appeal.

B.

Background

[4]

The appellant testified she decided to go to Jamaica in May 2010 to visit
    her father and her grandfather. At the time she was unemployed. She had about
    $700 for spending money but could not afford a plane ticket.

[5]

The appellant had met Ralph Fletcher
    through her boyfriend Paul, who had known him for about a year. At the time of
    the offence, she knew his first name was Ralph, but did not know his last
    name. The appellant talked to Fletcher about her life problems and he offered
    to buy her a plane ticket. A few days later, the appellant and Paul saw
    Fletcher again and Paul asked Fletcher if he was serious about the plane ticket.
    Fletcher said he would buy it.

[6]

The appellants evidence was that
    Fletcher purchased a round trip ticket from Toronto to Montego Bay for her
    online and then provided her with his email address and password so she could
    print the ticket. She did not have a passport when Fletcher purchased the
    ticket, so she paid $100 to get a rush passport.

[7]

Fletcher testified for the defence. He
    has a prior criminal record of six convictions between 1990 and 2003, which did
    not include any drug-related convictions. Fletchers evidence was that he did
    not purchase a plane ticket for the appellant, but rather loaned Paul $1,000
    for plane tickets and expenses.

[8]

The appellants expectation was that her
    father would pick her up at the airport in Montego Bay. During the flight,
    however, passengers were advised that Jamaica was under a state of emergency
    and there were travel advisories into Kingston. As a result, her father was not
    able to get to Montego Bay. She took a cab to a hotel and stayed in Montego Bay
    for the duration of her trip. On May 25, 2010, the appellant received a call
    from someone named Peter who was a friend of Fletchers. She spent the next
    couple of days with Peter.

[9]

The appellant testified Peter drove her
    to the airport on May 28, 2010. She wanted to replace her sisters bottle of
    ginger wine  which she and Paul had consumed  and get a second bottle for
    herself. She went to a duty-free liquor store and bought two bottles of wine.
    The cashier suggested the liquor could be boxed for her if she had a third bottle,
    so she purchased a bottle of rum. The cashier packaged the three bottles in a
    box and the appellant paid for her purchase. She testified her bags and the box
    were always in her possession except for a short time when she left them
    outside a washroom stall. She could see the bottoms of the bottles under the
    stall and she did not see anyone interfering with them.

[10]

On May 28, 2010, the appellant arrived at
    Pearson International Airport in Toronto. In the secondary customs area, CBSA
    Officer Dixon stopped the appellant and interviewed her. She was carrying a
    duty-free liquor box clearly marked from Jamaica, and Officer Dixon questioned
    the appellant about the duty-free box.

[11]

On opening the box, he found three 750 millilitre
    bottles: two bottles of Stones Ginger Wine and one bottle of rum. In response
    to his questions, the appellant said she purchased the alcohol from the
    duty-free shop in Jamaica on the day she left that country. She handed him a
    receipt from her purse. She told the officer she was unsure when she purchased
    the alcohol, but it was around 12:00 or 12:30 p.m. The officer noted that the
    transaction time printed on the receipt was 1:25 p.m.

[12]

Officer Dixon testified to having
    discovered cocaine coming from Jamaica ten days earlier dissolved in Stones
    Ginger Wine. In this case, an initial test identified cocaine on the bottles of
    wine. Officer Dixon arrested the appellant for attempting to smuggle suspected
    narcotics into Canada.

[13]

The contents of the two bottles of ginger
    wine were later tested and were found to each contain 415 grams of dissolved
    cocaine, resulting in a total value between $30,000 and $91,300.

[14]

The Crowns theory was that the appellant
    was a knowing participant in the cocaine importation scheme, a plan perhaps
    facilitated by Peter, which also involved Fletcher and his associates in
    Montego Bay. The appellants motivation was a free trip to Jamaica and very
    likely courier compensation.

[15]

The appellant testified she had no
    knowledge there was cocaine in the wine bottles and was unaware that cocaine
    came in liquid form. The defence theory was the accused was an innocent dupe in
    a sophisticated drug operation involving Fletcher and Peter. There was no
    financial motive to be involved in drug importation because the appellant had
    never experienced difficulty in finding employment.

C.

Analysis

[16]

The appellant submits the trial judge erred by relying on a finding that
    the appellant told Officer Dixon that Reg bought her plane ticket, instead of
    Ralph, as she testified. The officer acknowledged that his notes were not a
    verbatim account of what the appellant had said because they were recorded
    hours after the conversation in question. She argues that the trial judge
    failed to even advert to the possibility that the officer misheard the appellant.

[17]

We disagree that the trial judge erred in
    making this finding. He carefully and fairly reviewed the evidence at trial. It
    was open to him to find that the appellant lied about who bought her ticket.

[18]

The appellant further submits the trial
    the trial judge discounted her evidence for a series of unfair reasons: (i) by
    finding the appellant was unlikely to travel given her financial situation;
    (ii) by relying on a spurious contradiction between the appellants testimony
    and her mothers testimony regarding the explanation for the appellant flying
    into Montego Bay rather than Kingston; and (iii) by placing excessive weight on
    the appellants incomplete memory.

[19]

In our view, there was nothing unfair
    about these findings. They were part of the trial judges very thorough
    credibility review. Particular deference must be given to a trial judges
    credibility findings. Absent palpable and overriding error, an appellate court
    should not intervene in a trial judges credibility analysis:
R. v.
    Chhina
, 2016 ONCA 663, 340 C.C.C. (3d) 557,
    at para. 21. The trial judge was in the best position to assess the appellants
    demeanour and credibility throughout her testimony. He gave thorough reasons
    for his finding that the appellant was not credible and was aware of the cocaine.

[20]

Finally, the appellant submits that there
    was no evidence to support the trial judges finding that the cocaine was not
    likely to be placed under the exclusive control of an unknowledgeable courier.

[21]

We would not give effect to this
    argument. It was open to the trial judge to draw the inference that the manner
    of the cocaine smuggling that occurred in this case was not consistent with the
    use of a blind courier. In particular, the total value of the dissolved cocaine
    found in the appellants custody was significant enough to contribute to a
    common sense inference that a third party would not entrust it to her as a
    blind courier for the purpose of importation: see
R. v. Ukwuaba
, 2015 ONSC 2953, at para. 101; and
R. v.
    Bains
, 2015 ONCA 677, 127 O.R. (3d) 545, at
    para. 527, leave to appeal refused, [2015] S.C.C.A. No. 478.

[22]

A trier of fact is entitled to draw
    factual inferences based on his or her assessment of the totality of the
    evidence. The trial judge concluded, on the totality of the evidence, the only
    reasonable inference was that the appellant had knowingly imported cocaine.
    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:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000, at para. 56.

D.

Disposition

[23]

The appeal is dismissed.

K.M. Weiler J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


