



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2014 ONCA 71

DATE: 20140127

DOCKET: C56360

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samantha Lewis

Appellant

Ingrid Grant, for the appellant

Xenia Proestos, for the respondent

Heard: January 9, 2014

On appeal from the conviction entered on April 27, 2012
    by Justice Bonnie J. Wein of the Superior Court of Justice, sitting with a
    jury.

Benotto J.A.:

OVERVIEW

[1]

The appellant was found guilty by a jury of importing cocaine into
    Canada. The main issue at trial was the appellants knowledge that she was
    importing a narcotic. She appeals the conviction on the basis that the trial
    judge erred in admitting evidence regarding the reasons that the border
    services officer referred her to secondary inspection, and that the trial judge
    erred in instructing the jury to consider this evidence on the issue of the
    appellants knowledge.

[2]

At the end of oral submissions we dismissed the appeal with reasons to
    follow. These are those reasons.

FACTS

[3]

The appellant resided in England and travelled with her young daughter
    to Canada where she visited relatives and then travelled on to Costa Rica.  On
    her return, she arrived at Toronto Pearson Airport.  Officer Tanya Jakovcic, of
    the Canada Border Services Agency dealt with the appellant at primary customs
    inspection.  She referred her to secondary inspection for a drug examination
    and also for immigration issues.  During the secondary inspection, five
    kilograms of cocaine were found in the lining of two of her suitcases.

[4]

Officer Jakovcic testified about her interaction with the appellant,
    including her examination of the appellants passport, customs declaration card
    and itinerary, the appellants responses to her questions, and her demeanour. 
    In particular, the officer testified that :

·

The appellant planned to stay in Toronto for two days before
    returning home even though there are daily flights to England;

·

The appellants explanation that she was remaining in Toronto to
    visit relatives was odd since she had been in Toronto before travelling to
    Costa Rica;

·

Costa Rica is a drug source country;
[1]

·

The appellant had been away from England for a lengthy period of
    time with her daughter;

·

The appellants style of answering questions was inconsistent:
    she replied hastily at times but hesitated at other times; and

·

When she was asked where she stayed in Costa Rica, the appellant
    pointed to a hotel wristband in a manner that the officer perceived to be
    exaggerated.

[5]

Officer Jakovcic summarized her reasons for referring the appellant to
    secondary inspection:

I made a referral to customs secondary for a drug examination. 
    The reason for that referral was due to a [multiplicity] of indicators which
    include the travelling to and from a drug source country, short duration of
    stay in transit.  So the full demeanour as a whole along with the other
    indicators made me make a drug referral.

[6]

The appellant testified at trial.  She denied any knowledge of the
    cocaine, provided an explanation for her travels and theorized about how the
    drugs may have been surreptitiously planted in her luggage without her
    knowledge.

[7]

After the appellant was convicted, this court released its decision in
R.
    v. Lewis
, 2012 ONCA 388, 284 C.C.C. (3d) 423.  (The accused in this
    reported case has no relationship to the appellant here.  To avoid confusion,
    the reported case will be referred to as 
Loraine Lewis.
)  The
    appellant relies almost exclusively on this case in her submission that the
    impugned evidence was inadmissible and that a new trial must be ordered.

ISSUES

[8]

There are two issues on appeal:

1. Did the trial judge err by admitting Officer Jakovcics
    testimony about her reasons for referring the appellant for secondary
    inspection?

2. Did the trial judge err by referring to the impugned
    evidence in her charge to the jury?

ANALYSIS

(1)

The Admissibility of Officer Jakovcics Testimony

[9]

The appellant argues that the trial judge erred by allowing Officer
    Jakovcic to say why she referred the appellant for secondary inspection.  The
    appellant submits that
Loraine Lewis
stands for the proposition that
    the primary officers reasons for a secondary inspection referral are
    irrelevant and thus inadmissible.  She further submits that the trial judge
    erred in allowing the officer to give evidence on indicators of drug
    importing.  This, it is argued, is the officers opinion about the profile of a
    typical drug courier and is inadmissible unless presented by a qualified expert.

[10]

In
    my view,
Loraine Lewis
does not stand for the broad proposition
    advanced by the appellant.  In
Loraine Lewis
, the issue was the
    admission of evidence given by the primary officer about the
significance
of cash payments for tickets and short notice ticketing. [Emphasis added].

[11]

In
    that case, despite the objection of defence counsel that such evidence was
    inadmissible hearsay and opinion evidence, the officer was allowed to testify
    about what she was told during her training and to give her understanding of the
    significance of certain answers, including why these answers were indicators of
    a person involved in the drug trade.  For example, she testified:

In our training we were taught that if the answer to that
    question is cash, it is a major indicator for something suspicious.  And
    actually they told us particularly drugs its usually drug money.

[12]

As
    the court observed at para. 23:

The gist of the Inspector Bellissimos testimony with respect
    to the cash payments and last minute bookings for tickets was that the
    appellant used drug money (inferentially from her distributor) in order to
    buy her ticket for cash so that she wouldnt leave a paper trail back to that
    distributor  in short, that the appellant was a courier.  It is a small step
    from the acceptance of that evidence to the conclusion that the appellant knew
    about the cocaine in the bottles.

[13]

The
    Crown in
Loraine Lewis
sought to support the admissibility of the
    evidence as an exception to the hearsay rule and argued that it was admissible
    to go to the officers state of mind or as part of the narrative.  It was in
    the context of the Crowns hearsay argument, that the court held that the
    evidence was inadmissible because the officers state of mind was not
    relevant.  The appellant here seeks to extend that statement to say that the
    reasons for secondary referral are never relevant and thus never admissible.

[14]

In
Loraine Lewis
the court was
    concerned about the testimony surrounding the
significance
of the cash
    payments and short notice ticketing, specifically, Officer Bellissimos
    explanation of how these factors related to the profile of a typical drug
    importer.  By relating her reasons for the referral to secondary inspection to
    the characteristics of a typical drug importer based on what she was told in
    training, Officer Bellissimo went beyond merely recounting her observations of
    Loraine Lewis.  The court found that the practical reality was that this
    evidence was opinion evidence.

[15]

The
    court in
Loraine Lewis
specifically recognized that primary customs
    inspectors can relate their observations including what the court referred to as
    non-expert opinion evidence. The court explained that non-expert opinion
    evidence is a form of opinion evidence where the witness relates matters in
    respect of which a person of ordinary intelligence may be permitted to give
    evidence based on his or her personal knowledge.  In other words, a non-expert
    witness can, in appropriate cases, relate an observation by expressing an
    opinion. For example, a customs officer can testify that answers appeared
    rehearsed.  Although such a statement is not, strictly speaking, relating a
    fact, it is the perception of the officer and is admissible without the need to
    qualify the officer as an expert.

[16]

None
    of the courts concerns in
Loraine Lewis
apply in the present case.
    The testimony of Officer Jakovcic was limited to her personal observations of
    the appellant. No objection was made to this testimony at trial.  The officer
    gave no opinion as to what the jury should draw from these observations. There
    was no hearsay issue nor were there concerns that any of the opinions advanced
    by Officer Jakovcic went beyond her perceptions.

[17]

The
    appellant raised specific concerns about Officer Jakovcics use of the word
    indicator. In the appellants submission, the jury would understand
    indicators to be consistent with certain earmarks of drug importation or with
    the profile of a drug courier and conclude that the appellant was in fact a
    drug courier. It was submitted that, by telling the jury that the appellant
    gave certain responses to indicator questions, the officers evidence lent
    credence to the Crowns claim that the appellant was a knowing importer of
    drugs.

[18]

I
    disagree.  In this case the officers use of the term indicator was simply
    descriptive of her reason for the referral to secondary inspection.  It did
    not, read in context, amount to evidence that the appellant fit a particular
    profile.  There may be contexts where use of that term could invite the jury to
    draw an improper inference.  Used as it was in this case, the term indicator
    did not infringe on the jurys task nor did it suggest that the appellant must
    have had knowledge of the presence of drugs in her luggage.

[19]

The
    evidence of the primary officer that was challenged on appeal was properly
    admitted at trial.

(2)

The Charge to the Jury

[20]

The
    appellant raised a subsidiary issue with respect to the judges charge to the
    jury.  At first it was asserted that this issue only became relevant if the
    evidence was found to be inadmissible.  It was then argued that, even if the
    evidence was admissible, the trial judge erred in her charge to the jury by
    referring to the evidence of the primary officers suspicions on the issue of
    the appellants knowledge.  The jury instructions in issue are the following:

·

Consider the fact that suspicions were raised at primary because
    she was coming from a drug-source country and travelling alone with a small
    child.

·

Consider that she only had a short two-day stopover in Canada

·

Consider the issue of the resort wristband. [I]t seemed to be a
    factor for [the primary officers] consideration

·

Consider her demeanour and what Officer Jakovcic said was an
    inconsistent style of answering questions

·

Consider her itinerary. She bought the ticket just a few days
    before she left

[21]

The
    trial judges charge to the jury must be read as a whole.  She fairly put forth
    the position of the defence, reviewed the appellants testimony and balanced
    references to the Crowns case with the defence position.  These excerpts, in
    light of the entire charge, could not possibly have led the jury to reason that
    the primary officers suspicions were evidence that the appellant had knowledge
    of the drugs.

DISPOSITION

[22]

The
    appeal is dismissed.

M.L. Benotto J.A.

I agree Paul Rouleau
    J.A.

I agree K. van
    Rensburg J.A.

Released: January 27, 2014





[1]
This evidence was given at trial by a qualified expert.  It was an agreed fact
    on appeal.


