



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tomlin, 2014 ONCA 357

DATE: 20140506

DOCKET: C56800

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ramone Tomlin

Appellant

Breana Vandebeek for the appellant

Brian G. Puddington for the Crown

Heard: April 29, 2014

On appeal from the conviction entered on October 2, 2012
    by Justice L. Ricchetti of the Superior Court of Justice, sitting without a
    jury.

By the Court:

[1]

The appellant was convicted of importing 1.18 kilograms of cocaine which
    arrived in Canada with him, in two suitcases, upon his return from a trip to
    Jamaica.  The cocaine was concealed in two large frozen fish, themselves each
    placed among other smaller frozen fish in a green bag located in each suitcase.

[2]

The green bags were delivered to the appellant by a total stranger just
    before his departure from Jamaica.  The appellant made no inquiries of the
    individual about what was in the bags  indeed, the entire exchange between the
    appellant and the stranger consisted of two exchanges: Hi and Have a good
    trip.  Neither the appellant nor his mother looked into the bags to see what
    they contained.

[3]

The sole issue at trial was knowledge.  The appellant testified that he
    had no idea the cocaine was in his possession and that he had been duped by his
    girlfriend, who had asked him to bring back some fish to her when he returned
    and who called to remind him to do so during his visit and to say that her
    father would bring the fish to her for that purpose.

[4]

The trial judge did not accept the appellants version of events. He
    concluded on all of the evidence that the appellant knew he was importing the
    cocaine, and convicted him.

[5]

The appellant raised two issues on appeal:


i.

that the trial judge placed improper reliance upon a false statement
    made by the appellant on the Canadian Customs Declaration filled out on arrival
    (a statement the appellant admits was made to avoid a search of his
    belongings); and


ii.

that the trial judge misapprehended certain evidence in drawing
    inferences of knowledge on the part of the appellant.

[6]

We would not give effect to either ground of appeal.

The
    False Customs Declaration

[7]

The appellant argues that the trial judge heavily and improperly relied
    upon the appellants false declaration in assessing his credibility, in
    discussing his girlfriends evidence and in arriving at his ultimate conclusion
    regarding knowledge.  He argues that the statement on the declaration that he
    was not bringing fish into the country is equally explicable by his desire not
    to have them confiscated as it is by his desire not to have the importation
    uncovered.

[8]

In his written submissions, the appellant argued that the act of making
    the false declaration  and doing so in order to avoid a search  was similar
    to after-the-fact conduct.  Therefore, following a line of authorities
    reflected in
R. v. White
, [2011] 1 S.C.R. 433 and
R. v. Arcangioli
,
    [1994] 1 S.C.R. 129, the evidence had to be discarded as having no probative
    value because it was susceptible to a different explanation.  In oral argument
     perhaps recognizing that the false declaration did not neatly fall into the
    after-the-fact conduct category  counsel argued as well that it was simply circumstantial
    evidence and had to be analysed for other possible explanations on that basis.

[9]

We do not accept this submission.

[10]

The
    appellant admitted that he lied on the Customs Declaration and that he did so
    deliberately with the intention of avoiding a search of his belongings.  His
    explanation that he did so on the advice of an unknown elderly lady who was
    standing beside him when they were disembarking  the second total stranger in
    the story  was rejected by the trial judge.

[11]

It
    defies common sense to suggest that a trial judge may not take into account a
    deliberately false declaration made at the very same time as the act of
    importing is taking place, in assessing the credibility of the accused or as a
    piece of circumstantial evidence bearing on the events.  In these
    circumstances, the false declaration did not amount to after-the-fact conduct,
    in our view, and need not have been subjected to the other possible
    explanations analysis called for in
White
and
Arcangioli
.  Just
    as the evidence of a customs officer about the demeanour of a person entering
    the country is not evidence of after-the-fact conduct, but rather evidence of
    conduct during the very commission of the offence, so, too, is the making of an
    admittedly false declaration like the one here.  See
R. v. Morales
,
    [2004] O.J. No. 4010 (C.A.).

[12]

Nor
    is it the law that each piece of circumstantial evidence must be examined
    individually to determine if it can be explained in more than one way.    The
    law is that a person may not be convicted on the basis of circumstantial
    evidence alone, unless that evidence is consistent with guilt and inconsistent
    with any other rational conclusion:
R. v. Handy,
[2002] 2 S.C.R. 908, at
    para. 96.  That is not a concern here.

[13]

In
    any event, the false declaration was just one of several factors the trial
    judge relied upon in assessing the appellants credibility and ultimately
    rejecting his version of events.

Misapprehension
    of the Evidence

[14]

In
    our view, the trial judge did not misapprehend the evidence. The appellant is
    confusing adverse findings of credibility with misapprehension of the evidence.

[15]

The
    allegation was raised in connection with three pieces of evidence:


i.

the purchase of a second suitcase by the appellant prior to his return;


ii.

the evidence concerning the failure to inquire about, and lack of
    concern regarding, the contents of the two delivered packages; and,


iii.

the appellants reaction towards his girlfriend when she visited him in
    jail after his arrest.

[16]

In
    oral submissions, appellants counsel withdrew the argument set out in (ii)
    above.  Neither of the other two grounds can succeed either, in our view.

[17]

The
    trial judge referred to the appellants purchase of a second suitcase in his
    analysis of credibility. He rejected the appellants evidence that he had
    bought the second suitcase simply to carry back food.  He inferred that,
    because the second suitcase was necessary to bring back the two large packages,
    the appellant knew in advance of the need for an additional suitcase.  This
    inference was open to the trial judge on all of the evidence.

[18]

Nor
    did the trial judge misapprehend the evidence regarding the appellants
    reaction when he was visited in jail by his girlfriend after his arrest.  The
    appellants defence was that he had been duped by his girlfriend into bringing
    a large quantity of cocaine into Canada without his knowledge.  Even though the
    girlfriend testified that the appellant seemed shocked that he had been
    arrested, there was no evidence that the appellant questioned her about the
    situation or suggested that he was upset because he had been set up.  In these
    circumstances, it was open to the trial judge to conclude that the appellants
    reaction was subdued for someone in jeopardy as the appellant was, and that
    his reaction was more consistent with [the appellants] having known about the
    cocaine in the two packages and had no reason to blame [his girlfriend].

[19]

The
    misapprehension of evidence ground of appeal fails.

Disposition

[20]

For
    the foregoing reasons, the appeal is dismissed.


Alexandra Hoy, A.C.J.O.


J.C.
    MacPherson J.A.

Robert
    Blair J.A.

Released:  May 6, 2014 AH


