



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cox, 2020 ONCA 820

DATE: 20201218

DOCKET: C66637

van Rensburg, Benotto and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keisha Cox

Appellant

Chris Sewrattan and Ashley Sewrattan,
    for the appellant

Maria Gaspar, for the respondent

Heard: December 4, 2020 by
    video conference

On appeal from the conviction entered on
    December 3, 2018 by Justice Jamie K. Trimble of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals her conviction for importing
    1.8 kg of cocaine. The cocaine, which was concealed in a variety of food
    products, was discovered in her suitcase as she returned to Canada from Jamaica.
    The trial judge convicted the appellant after concluding that she knew
or
was wilfully blind that her suitcase contained a controlled substance. The
    appellant argues that it was an error for the trial judge to rely on wilful
    blindness when there was no air of reality to knowledge based on wilful
    blindness in this case.

[2]

As a substitute for knowledge, wilful blindness
    requires an evidentiary basis before it can be considered by the trier of fact:
    see
R. v. Burnett
, 2018 ONCA 790, 367 C.C.C. (3d) 65, at paras.
    141-42. The Crown acknowledges that there was no air of reality to wilful
    blindness on this record. Indeed, the trial Crown relied only on actual
    knowledge in his submissions to the trial judge.

[3]

The Crown on appeal asserts that the trial
    judges repeated references to wilful blindness did not amount to an error
    because it is plain from his reasons that he was satisfied that the appellant had
    actual knowledge of the cocaine in her suitcase. The Crown invites this court
    to disregard the references to wilful blindness as superfluous and unnecessary
    language. In the alternative, if the trial judge did err, the Crown asks that
    we apply the curative proviso under s. 686(1)(b)(iii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, to dismiss the appeal and uphold the
    conviction.

[4]

The appeal must be allowed. We are not confident
    from reading the trial judges reasons that he was satisfied beyond a
    reasonable doubt that actual knowledge was made out. He stated that the
    appellant knew
or
was wilfully blind in describing, albeit
    inaccurately, the Crowns argument: at paras. 23, 34, and in setting out his
    conclusion that the only reasonable inference was that the appellant knew or
    was wilfully blind to the contents of her suitcase: at paras. 38, 42. These
    repeated references to wilful blindness suggest that the trial judge was not
    prepared to base a finding of guilt solely on actual knowledge, which in turn
    suggests that he may well have had a reasonable doubt on this issue.

[5]

The Crown relies on this courts decision in
R.
    v. Ifejika
, 2013 ONCA 531. In that case, which involved the appeal of a
    conviction for importing heroin, this court indicated that while it was unclear
    whether the trial judge convicted on the basis that the appellant actually knew
    there was heroin in the package or whether she was wilfully blind to that fact,
    this was not an error as either would suffice in law: at paras. 4, 8. The
    difference however is that, based on a review of this courts reasons in
Ifejika
,
    there was an air of reality to both actual knowledge and wilful blindness. This
    court concluded, after reviewing the evidence, that on the entirety of the
    evidence it was open to the trial judge to conclude that the appellant knew or
    was wilfully blind that the package contained narcotics. By contrast, in the
    present case there was no air of reality to knowledge based on wilful
    blindness, and accordingly it would have been an error for the trial judge to
    find knowledge on that basis.

[6]

The Crown asks that we apply the curative
    proviso.
The proviso, as interpreted by the Supreme Court,
    applies to uphold a conviction where there is no reasonable possibility that
    the verdict would have been different had the error at issue not been made: see
R. v. Bevan
, [1993] 2
    S.C.R. 599, at p. 617;
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. That test can be
    satisfied in two ways. First, the proviso can apply if the error was harmless
    or trivial, in that it was so minor, so irrelevant to the ultimate issue in
    the trial, or so clearly non-prejudicial, that any reasonable judge or jury
    could not possibly have rendered a different verdict if the error had not been
    made: see
R. v. Van
, 2009
    SCC 22, [2009] 1 S.C.R. 716, at para. 35. Second, the proviso can be applied
    for more serious errors, where the evidence is so overwhelming that a
    reasonable and properly instructed jury would inevitably convict: see
Van,
at para. 36.

[7]

The Crown acknowledges that the prosecution case
    was not overwhelming. Nor in our view was the error minor or trivial. It went
    to the heart of what the trial judge had to determine  whether the appellant knew
    about the controlled substance in her suitcase.
We are
    unable to say that the trial judges error was such that any reasonable judge
    or jury could not possibly have rendered a different verdict if the error had
    not been made. Indeed, in resting his conclusion on actual knowledge
or
wilful blindness the trial judge here did not make a finding of actual
    knowledge beyond a reasonable doubt. Otherwise, the trial judge would have
    expressed his conclusion only in terms of actual knowledge, and he would have explained
    why actual knowledge was the only reasonable inference that could be drawn from
    the circumstantial evidence.

[8]

Accordingly, the appeal is allowed, the
    conviction is set aside, and a new trial is ordered.

K.
    van Rensburg J.A.

M.L.
    Benotto J.A.

J.A.
    Thorburn J.A.


