



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Miller, 2018 ONCA 942

DATE: 20181126

DOCKET: C62134

Sharpe, Hourigan and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Miller

Appellant

Philip Campbell, for the appellant

Tanit Gilliam, for the respondent

Heard: November 19, 2018

On appeal from the conviction entered on March 10, 2016
    by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction following a jury trial for
    importing cocaine and possession of cocaine for the purpose of trafficking.

[2]

The appellant, who operates a motorcycle business, returned to Canada
    from the United States driving a truck carrying several motorcycles. Upon
    inspection at the border crossing, Canadian Border Service Agency (CBSA) agents
    found 100 kg of cocaine secreted in the bed of the appellants truck. The
    central issue at trial was whether the appellant had knowledge of the cocaine
    secreted in his truck.

[3]

The appellant raises three grounds of appeal.

1.

Admissibility of the appellants statement

[4]

The appellant made an incriminating statement to the CBSA agents,
    effectively admitting knowledge that he was importing cocaine. His principal
    ground of appeal is that the trial judge erred in finding that the appellants
    s. 10(b) right to counsel under the
Canadian Charter of Rights and Freedoms
was not violated.

[5]

No video or audio recording was made of the conversation between the
    appellant and the agents. Two CBSA agents testified on the voir dire as did the
    appellant. While there was some variation in the evidence of the two agents,
    their versions of events were essentially the same. The trial judge accepted
    their evidence and rejected the evidence of the appellant.

[6]

After a sniffer dog detected the presence of drugs in the truck, the agents
    detained the appellant and his passenger on suspicion of smuggling. The agents
    handcuffed the appellant in the parking lot. At that point, the appellant was
    informally cautioned and advised of his right to counsel. He stated that he did
    not wish to speak to counsel.

[7]

Within several minutes of detaining him, the CBSA agents formally
    cautioned the appellant and advised him of his right to counsel a second time.
    A CBSA agent brought the appellant into a search room in the CBSA building
    following his detention. The agent removed the appellants handcuffs and read
    the appellant his rights from a prepared card. When asked if he wished to speak
    to a lawyer the appellant again answered no.

[8]

The CBSA agents then conducted a thorough search of the truck and located
    a package of suspected cocaine that was later identified as comprising 105 bricks
    of cocaine weighing a total of 100 kg. One of the agents then advised the appellant
    that he was under arrest for smuggling. For the third time, he was cautioned
    and advised of his right to counsel. The CBSA agent began to read him the
    standard caution and advice regarding his right to counsel. The appellant
    started to speak but the agent stopped him, told him to wait until he was
    properly advised of his rights and recommenced reading the rights and caution.
    When advised of his right to counsel, the appellant responded that at this point
    he would like to contact counsel. The CBSA agent then completed his reading of
    the caution. Immediately after the agent stopped reading the caution and
    without being prompted or questioned by the agent, the appellant began to
    speak.

[9]

According to the CBSA agents, the appellant stated that there were 100
    keys of coke in the bed of the truck. He asked the agents to retrieve a cell
    phone from the truck so that he could send a coded message. He also asked the
    agents to retrieve his wallet so that he could get his lawyers phone number. The
    appellant indicated that there could be a safety issue with his family and that
    he wished to cooperate with the investigation and provide the authorities with
    information. He also asked that the truck be moved so that it could not be
    seen. He offered to complete the delivery so the officers could identify who
    received the drugs. He told the agents that he had not been transporting drugs for
    a period of time but had brought this shipment because of a business downturn.

[10]

On
    the voir dire and in his trial evidence, the appellant denied that he stated
    there were 100 keys of coke in the truck. He testified that he told the CBSA
    agents that there was a 100 K out there for me to be worried about,
    referring not to 100 kg of cocaine but rather to his $100,000 investment in the
    truck and motorcycles.

[11]

The
    trial judge found that the appellant was repeatedly given his rights to
    counsel and appropriately cautioned as his jeopardy changed. She further found
    that the appellant had interrupted the CBSA officers as they read him his
    rights, that he was not diligent in pursuing speaking with counsel and that
    he was more concerned with his own safety, the movement of the truck, and the
    retrieval of a cell phone than with speaking with counsel.

[12]

Having
    ruled there was no violation of the appellants right to counsel, the trial
    judge did not consider whether the evidence should be excluded pursuant to s.
    24(2).

[13]

In
    our view, it was inapt of the trial judge to characterize this as a situation
    where the appellant was not diligent in pursuing his s. 10(b) right to speak
    with counsel. That situation arises where a detainee is advised of his right to
    counsel, is given an opportunity and the means to speak with counsel and fails
    to pursue that right in a timely manner: see
R. v. Ross
, [1989] 1
    S.C.R. 3, at p. 11.

[14]

However,
    we do not agree that by using the wrong words to describe what occurred, the
    trial judge fell into reversible error. In our view, what occurred may be more
    accurately described as follows: immediately upon being fully informed of his
    right to counsel for the third time, the appellant made a spontaneous and
    unprompted incriminating statement. As this court has held, if a detainee makes
    an un-elicited and spontaneous incriminating statement after being
    appropriately cautioned, there is no violation of s. 10(b):
R. v. Guenter
,
    2016 ONCA 572, 340 C.C.C. (3d) 351, at paras. 61-62.


[15]

As
    we have noted, the appellant attempted to speak while he was being cautioned.
    The CBSA agent made him stop so that the agent could ensure that the appellant
    was properly cautioned and advised of his right to counsel. It is clear on the
    record that once he had been read his rights, the appellant immediately
    launched into making a statement. There is no evidence that the CBSA agents
    began to question or interrogate the appellant before he made his statement. On
    the voir dire, while the appellant insisted that the statement he made was not
    what the CBSA agents described, he unequivocally described his statement as
    being spontaneous. He testified that as he was being cautioned he jumped up out
    of the seat that I was sitting in and I said to them, Listen, theres a 100 K
    out there for me to be worried about. He repeated this evidence at trial when
    he stated that he jumped up off the bench. In our view, the appellants
    evidence supports a conclusion that his statement was a spontaneous utterance
    made with full knowledge of his right to remain silent and speak to counsel.

[16]

The
    appellant concedes that the CBSA agents were under no legal duty to stop him
    from making his spontaneous statement. While the agents did not remain silent
    as the appellant made his statement, their evidence was that the questions they
    asked were simply to clarify what the appellant was saying. We recognize that
    the agents were under a duty to refrain from eliciting any incriminating
    evidence from the appellant until he had been given a reasonable opportunity to
    reach a lawyer or unequivocally waived his right to do so:
R. v. Suberu
,
    2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38.

[17]

The
    appellant points to the fact that after he gave the incriminating statement,
    there was a 52 minute delay before the agents afforded him access to a
    telephone to contact counsel. Part of this time was taken to facilitate smoke
    and toilet breaks for the appellant. The appellant argues that this delay
    constituted a breach of his s. 10(b) right to counsel. He further submits that,
    as no causal relationship need be shown between the
Charter
breach and
    the incriminating statement for that statement to be obtained in a manner
    that infringes s. 10(b), the statement should be excluded pursuant to s. 24(2).

[18]

We
    agree with the respondent Crown that even if the clarifying questions and the
    delay in making it possible for the appellant to speak to counsel did amount to
    a breach of the appellants
Charter
rights and this breach meant that
    the prior spontaneous statement was obtained in a manner that infringed s.
    10(b), the evidence of the statement he made ought to be admitted under s.
    24(2).

[19]

R.
    v. Grant
, 2009 SCC 32,
[2009] 2 S.C.R. 353, at para. 92, holds that there is a presumptive general,
    although not automatic exclusion of statements obtained in breach of the
Charter
and that a three part test applies to determine whether admission of the
    evidence of a statement would bring the administration of justice into
    disrepute.

[20]

The
    first question is the seriousness of the
Charter
-infringing state conduct.
    We are satisfied that the CBSA agents endeavoured to comply with their
    obligation to advise the appellant of his rights. They advised him of his
    rights three times, and on the third occasion, insisted that he stop talking
    while they completed reading him his rights. As we have found, they did not
    breach the appellants s. 10(b) right to counsel before he made his
    incriminating statement. They delayed for 52 minutes in giving him access to a
    telephone to contact counsel after he had made his statement, but in all the
    circumstances, that was not a serious breach.  The clarifying questions were
    not aimed at eliciting incriminating evidence but were prompted by the
    immediacy of the situation and the appellants concern for his own and his
    familys safety.

[21]

The
    second question is the impact of the
Charter
-infringing state conduct
    on the
Charter
-protected interests of the accused. In
Grant
,
    the court stated that the impact on the accuseds
Charter
-protected
    interests may be reduced if it is clear that the detainee would have made the statement
    in question notwithstanding the
Charter
breach: at para. 96.

As
    David M. Paciocco and Lee Stuesser explain, the court in
Grant
thus
    made clear that the impact of the breach will be lessened when there is no
    causal link between the breach and the statement:
The Law of Evidence
,
    7th ed. (Toronto: Irwin Law, 2015), at p. 420.

[22]

In
    our view, the impact on the appellants rights was at the lowest end of the spectrum.
    The agents fully and repeatedly advised the appellant that he had the right to
    remain silent and that he had the right to contact counsel. Despite these
    cautions, the appellant spontaneously made his statement. The spontaneous
    statement preceded the clarifying follow-up questions and the 52 minute delay, and
    it is evident that the appellant would have made the statement notwithstanding any
    subsequent breaches. Accordingly, neither the 52 minute delay nor the
    clarifying questions had a meaningful impact on his
Charter
-protected
    interests.

[23]

The
    third question is societys interest in adjudication on the merits. This factor
    clearly favours admission. Since the first two inquiries provide only limited
    support for exclusion, this factor confirms that the evidence should be
    admitted: see
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at
    para. 63.

[24]

For
    these reasons, we do not give effect to the appellants first ground of appeal.

2.

Willful Blindness

[25]

The
    appellants second ground of appeal is that the trial judge erred by leaving
    with the jury the possibility of convicting him on the basis of wilful
    blindness.

[26]

The
    trial judge instructed the jury that to convict the appellant of importing or
    possession for the purpose of trafficking, the jury had to be satisfied that
    the appellant actually knew the substance he was importing was cocaine. The
    trial judge added that a second way to prove this element of the offence was to
    prove that the appellant was aware of the need to make an inquiry about the
    nature of the substance, but deliberately failed to do so because he did not
    want to know the truth about it.

[27]

The
    appellant argues that only issue before the jury was actual knowledge and that
    there was no evidence from which the jury could conclude that the appellant had
    been wilfully blind.

[28]

We
    disagree with this submission. In our view, it fails to take into account the
    right of the jury to accept all, some or none of the appellants evidence. As
    the respondent points out, there was some evidence of the possible involvement
    of S.S., a friend of the appellant, with the cocaine. The appellant testified
    that he had asked S.S., who was the general service manager of a trucking
    company, to refit the truck and that S.S. or others at the company had so
    refitted the truck. The refitting made it possible to conceal the drugs in the
    bed of the truck. The appellant had been with S.S. in Florida before his return
    to Canada. S.S. had asked the appellant to bring back a phone to Canada and the
    appellant was suspicious about why S.S. had made this request. While there was
    no direct evidence that S.S. may have planted the drugs in the truck, the
    suggestion that he might have done so was an available inference from the
    evidence. Indeed, the appellant testified that he believed S.S. had planted the
    drugs in the truck. In our view, it was open to the trial judge on this record
    to conclude that there was a basis for a finding of wilful blindness.

[29]

The
    appellant further argues that the instruction was inadequate and that if wilful
    blindness was to be left with the jury a full instruction was called for.

[30]

While
    the instruction was brief, in our view, it gave the jury the essential elements
    of wilful blindness and the information it needed to consider it as a possible
    route to satisfying the required element of knowledge.

[31]

We
    note that the appellants trial counsel did not object, either to the inclusion
    of the wilful blindness instruction or to its adequacy.

[32]

For
    these reasons, we do not give effect to this ground of appeal.

3.

Reversal of the burden of proof

[33]

The
    appellants third ground of appeal is that the trial judge reversed the burden
    of proof in his re-charge on the elements of possession.

[34]

In
    her initial instruction, the trial judge told the jury in relation to the
    importing charge that they should have no difficulty in finding that the
    appellant was in possession of the cocaine when he crossed the border. The
    appellants trial counsel objected and asked for a re-charge making it clear to
    the jury that to prove possession, the Crown was required to prove knowledge.
    The Crown agreed that a re-charge was required. In her re-charge, the trial
    judge stated: If you are persuaded that he did not knowthose bricks were in
    the truck you must find him not guilty.

[35]

Read
    in isolation, that instruction was wrong and reversed the burden of proof.
    However, we are satisfied that there is no realistic prospect that it could
    have misled the jury as to the proper burden of proof. The trial judge repeatedly
    instructed the jury on the presumption of innocence and that the burden of
    proof rested with the Crown throughout. The trial judge gave the jury a clear
W.D.
instruction. Particularly telling is the fact that the appellants trial
    counsel, who had asked for the clarification and was well placed to assess its
    impact, made no objection but rather thanked the trial judge for making the
    clarification.

[36]

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

Disposition

[37]

For
    these reasons, the appeal from conviction is dismissed.

Robert J. Sharpe
    J.A.

C.W. Hourigan
    J.A.

G.T.
    Trotter J.A.


