



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2021 ONCA 559

DATE: 20210805

DOCKET: C66630

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kebrahas Mark Anthony Thompson

Appellant

Mark C. Halfyard, for the appellant

Scott Wheildon, for the respondent

Heard: April 21, 2021 by videoconference

On appeal from the conviction entered on October 25, 2018
    by Justice Gisele M. Miller of the Superior Court of Justice, with reasons
    reported at 2018 ONSC 6393.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals his conviction for importing cocaine into Canada
    contrary to s. 6(1) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19
. He submits that the
    trial judge erred in using a recklessness or negligence standard, rather than a
    subjective standard, to find that he was wilfully blind to the presence of
    illegal drugs concealed in his suitcases. He also submits that the trial judge failed
    to treat certain aspects of the appellants after-the-fact conduct as circumstantial
    evidence of innocence, and that she improperly took judicial notice of certain
    facts.

[2]

For the reasons that follow, we dismiss the appeal.

The Factual Context

[3]

Late in the evening on January 13, 2014, the appellant arrived at
    Toronto Lester B. Pearson International Airport on a flight from Montego Bay,
    Jamaica. He was directed to secondary inspection. Border Service Officers
    searched his suitcases, which the appellant confirmed he had packed.

[4]

Eight plastic Betapac brand spice packages were found in the
    appellants suitcases  five curry and three black pepper. Although the
    packages bore no visible irregularities and appeared to contain the labelled spices,
    in handling them, one of the Border Service Officers noted that they seemed
    less malleable than would be expected, given their apparent contents. An
    officer cut open one of the packages and discovered cocaine. The appellant was
    arrested. The other packages were examined and also found to contain cocaine.

[5]

At trial, the parties agreed that: approximately 3.7 kilograms of
    cocaine had been concealed in the spice packages; the appellants fingerprint
    was identified on the exterior of one of them; and, the cocaine had a value in
    the Greater Toronto Area that ranged between $170,000 and $407,000, depending
    on whether it was sold by the ounce, gram, or kilogram.

[6]

The appellant gave evidence at trial. He testified that he had gone to
    Jamaica for a family members funeral. While there, he spent time with Neville
    Williams, with whom he was in a relationship and infatuated.

[7]

According to the appellant, Mr. Williams asked him to bring some
    Jamaican spices to Toronto for Mr. Williams cousin (whose name the appellant was
    not given), for his restaurant Iri Veggie Take-Out. The appellant testified
    that Mr. Williams gave him the eight Betapac packages, that Betapac is a
    recognized brand of Jamaican spices, and that the packages looked normal and
    did not appear to have been tampered with. The appellant said that when he
    questioned Mr. Williams about the quantity, Mr. Williams told him that his
    cousin wanted a lot for the restaurant. Once in Toronto, the appellant was to
    await contact by someone who would pick up the packages.

[8]

The appellant testified that it did not occur to him that the packages
    might have drugs in them. On cross-examination, he agreed that it should have
    occurred to him that something was suspicious, however, he maintained that
    nothing did. The appellant gave evidence about his knowledge of how the drug
    trade operates, and that he would never knowingly traffic drugs because he had
    previously been acquitted of an importing charge and was always checked at
    customs.

The Trial Judgment

[9]

The trial judge set out the principles in
R. v. W.(D.)
, [1991]
    1 S.C.R. 742, relevant to whether the charge was proven beyond a reasonable
    doubt in light of the appellant having given evidence.

[10]

The
    trial judge accepted the appellants evidence about his relationship with Mr. Williams,
    and that it might be true that Mr. Williams provided the cocaine for delivery
    to someone at the restaurant the appellant identified. She also accepted that
    the cocaine was cleverly concealed in packages that appeared from the outside
    to be authentic packages of spice.

[11]

However,
    the trial judge did not believe the appellants evidence that he did not know,
    or even suspect, that the spice packages contained illegal drugs. She found
    that his history and knowledge of the drug trade demonstrated a heightened
    sensitivity to the fact and the ways in which drugs are imported from Jamaica
    into Canada. She found it was inconceivable that it would not have occurred
    to him that the spice packets contained some illegal drug.

[12]

The
    trial judge went on to find that even if [the appellant] did not have direct
    knowledge that there was cocaine in the packets he was bringing into Canada, he
    was wilfully blind as to the presence of drugs in the packets, and did not take
    sufficient reasonable steps to assure himself that they were not there. She
    found that the appellants enquiry of Mr. Williams as to the amount of spice did
    not result in an answer sufficient to reasonably allay his suspicions and the
    fact that he was not given the name of a person to deliver the packets to and
    was to await contact from an unknown person who would arrange pick up should
    have raised rather than allayed any suspicions. As the appellant acknowledged
    that curry powder and black pepper are readily available in Toronto, the trial judge
    observed that there would be no need for the appellant to bring those products
    to a restaurant that would likely have its own supplier and need those goods in
    greater quantities.

[13]

The
    trial judge concluded that she did not believe the appellants evidence that he
    did not know the spice packets contained illegal drugs, nor did it leave her
    with a reasonable doubt. She concluded that she was satisfied on all of the
    evidence that the appellant knew or was wilfully blind to the fact that he
    imported cocaine into Canada.

Analysis

(a)

Wilful Blindness

[14]

The
    appellant argues that the trial judge did not properly find wilful blindness,
    as she focussed on whether the appellant should have been, or should have
    remained suspicious, rather than on whether he actually suspected there were
    drugs in the packages and deliberately failed to further inquire in order to
    avoid knowledge. The appellant argues that in doing so, she used a recklessness
    or negligence standard.

[15]

We
    reject this ground of appeal for two reasons.

[16]

First,
    the trial judges finding of wilful blindness was in the alternative to her primary
    finding that the appellant actually knew that the packets contained illegal
    drugs. The trial judge did not believe the appellants evidence that he did not
    know the packages contained cocaine, stating that it was inconceivable that
    he did not know. She concluded that she was satisfied beyond a reasonable doubt
    on all the evidence that he had the requisite knowledge. The evidence spoke
    powerfully to his knowledge, as it included the undisputed facts that: cocaine
    of significant value was concealed in packages; the packages were in suitcases
    that the appellant had packed and transported; and, that one of the packages
    bore the appellants fingerprint. Even if there was an error in the trial
    judges approach to wilful blindness, it would not affect the result.

[17]

Second,
    we do not accept the argument that the trial judge used the wrong standard in
    her alternative wilful blindness analysis. The trial judge set out the correct definition
    of wilful blindness as articulated by this court in
R. v. Lagace
(2003)
, 178 O.A.C. 391, (Ont. C.A.) and
R.
    v. Rashidi-Alavije
, 2007 ONCA 712, 229 O.A.C. 365. Accordingly, when she
    twice in her reasons stated that the appellant was, in the alternative,
    wilfully blind, there is no doubt she was using the term as described in those
    cases  that the appellant was culpable because he actually suspected drugs but
    declined to make inquiries sufficient to allay those suspicions because he
    preferred to remain ignorant of the truth: see, for example,
Lagace
,
    at para. 28. The trial judge did not proceed on the erroneous basis that all
    that was required was that the appellant should have been suspicious.

[18]

The
    trial judges findings in support of her conclusion on actual knowledge also
    support her alternative conclusion on actual suspicion. The trial judge
    considered, but rejected, the appellants evidence that he did not suspect
    drugs. The evidence she accepted as to the value of the drugs, the appellants
    history and knowledge of the drug trade, the concealment of the cocaine in the
    packages in the appellants suitcases, and the fingerprint, speak with equal
    power to a conclusion of actual suspicion and a deliberate failure to learn the
    truth.

[19]

As
Lagace
makes clear, wilful blindness may be found even where an
    accused who held a suspicion made some inquiry. In determining whether an
    accused who made some inquiry remained suspicious and deliberately refrained
    from further inquiry to avoid the truth, the nature of that inquiry will be an
    important consideration For example, a finding that an accused took all
    reasonable steps to determine the truth would be inconsistent with the
    conclusion that the accused was wilfully blind: at para. 28.

[20]

The
    appellant focusses on the trial judges statements that the appellant did not
    take reasonable steps to ensure there were no drugs, that his inquiries were not
    sufficient to reasonably allay his suspicions, and that certain matters
    should have raised rather than allayed any suspicions. Read in context (and
    given her finding that the appellant was wilfully blind as discussed above), these
    statements reflect the trial judges consideration of the nature of the appellants
    inquiry, that is, of the steps he took to determine the truth. As explained in
Lagace
,
    the reasonableness of the steps taken is one factor to be considered; as
    earlier noted, if an accused took all reasonable steps, that would be
    inconsistent with a finding of wilful blindness. We do not interpret these
    statements to be the basis, let alone the sole basis, on which the trial judge
    concluded that the appellant was wilfully blind.

[21]

We
    therefore reject this ground of appeal.

(b)

After-the Fact
    Conduct

[22]

A
    little over a month after the appellant was arrested, the appellants lawyer
    wrote to the police providing information that the packages had been provided
    to the appellant by Mr. Williams, and that they were to be delivered to Iri
    Veggie Take-Out.

[23]

The
    appellant argues that the trial judge failed to take this evidence into account
    as something that reflected positively on his credibility, especially since the
    trial judge was critical of the appellants inability or failure to locate or
    contact Mr. Williams after his arrest.

[24]

We
    reject this ground of appeal. The fact that the trial judge did not
    specifically refer to the letter does not mean she did not consider it  she
    was not obliged to detail all evidence in her reasons. Moreover, the trial
    judge accepted, based on the evidence at trial, that Mr. Williams may have
    provided the packages and that they may have been intended for delivery to that
    restaurant. She nonetheless rejected the appellants evidence that he did not
    know or suspect that the packages contained drugs. In other words, those facts did
    not exculpate the appellant. We see no basis on which to conclude that the fact
    that this information was contained in the appellants lawyers letter gives it
    a different effect.

(c)

Improper Judicial
    Notice

[25]

In
    her analysis, the trial judge noted that a restaurant would require much
    greater amounts of the spices than the amount the appellant was to deliver. The
    appellant argues that there was no evidence on the appropriate quantity of
    spice for a restaurant, and as such, the trial judges comment constituted an
    improper resort to judicial notice.

[26]

In
    our view, the comment in question was not a finding of fact but was simply a
    minor part of the trial judges assessment of the inherent probabilities of the
    appellants evidence viewed through the lens of common sense. Moreover, the
    trial judge was entitled to disbelieve the appellants evidence, and reach the
    ultimate conclusions that she did, without that reference.

[27]

Accordingly,
    we do not give effect to this ground of appeal.

Conclusion

[28]

For
    these reasons, the appeal is dismissed.

David Watt J.A.

L.B. Roberts J.A.

B. Zarnett J.A.


