



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Lewis, 2012
    ONCA 388

DATE: 20120608

DOCKET: C51858

Laskin and Blair JJ.A. and Brown R.S.J
. (ad
    hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Loraine Lewis

Appellant

R. Craig Bottomley, for the appellant

Milica Potrebic, for the respondent

Heard: February 16, 2012.

On appeal from the conviction entered by Justice T.A. Bielby
    of the Superior Court of Justice, sitting with a jury, on October 5, 2009.

R.A. Blair J.A.:

Overview

[1]

On June 16, 2007, the appellant arrived at Pearson International Airport
    in Toronto, carrying a suitcase containing two bottles of wine in which was
    dissolved a total of 862 grams of cocaine.  The cocaine had an estimated street
    value of between $25,000 (if sold at the kilogram or pound level) and $68,000
    (if sold at the gram level).

[2]

The main issue at trial was whether the appellant had knowledge of the
    cocaine in her suitcase.  She testified that she did not.

[3]

After a trial before Justice T.A. Bielby of the Superior Court of
    Justice and a jury, the appellant was convicted.  On appeal, she raises two
    arguments.  First, she submits that the trial judge erred in instructing the
    jurors on the issue of knowledge by failing to make clear that the issue to be
    determined by them was whether the appellant knew she was carrying an illegal
    drug, as opposed to any other substance that was illegal to import (excessive
    alcohol, in this case).  Secondly, she argues that the trial judge erred in admitting
    opinion evidence from a Border Services Inspector about the purchase of the
    appellants ticket and, further, in failing to instruct the jurors that they
    could not draw an adverse inference of guilt from how and when the ticket was
    purchased.

[4]

We did not call on counsel for the Crown with respect to the first issue,
    but, for the reasons that follow, I would allow the appeal and order a new
    trial on the second ground.

Facts

[5]

The appellant entered Canada on June 16, 2007, with a suitcase in which
    were found two bottles of wine, wrapped in newspaper and hand-taped at the
    neck.  Each bottle contained cocaine dissolved in liquid.  The cocaine weighed
    862 grams in total.

[6]

Sonia Bellissimo, a Border Services Inspector for the Canadian Border
    Services Agency, testified that on that day she was assigned to work as a
    primary officer at the first point of screening for passengers entering
    Canada.  Her role was to conduct a brief interview with passengers, referring
    some for secondary inspection where necessary.

[7]

The appellant was one of those passengers.  Her customs declaration card
    indicated that she was travelling alone as a visitor to Canada from Jamaica,
    that she would be remaining in Canada for 14 days, and that she was bringing
    one bottle of wine and one bottle of rum with her.  Inspector Bellissimo asked
    the appellant a few questions about her trip and became suspicious  she knew
    something was up  because she thought the appellants answers sounded
    rehearsed.  As she was trained to do, the Inspector asked the appellant two
    indicator questions: (i) When did you book your ticket? and (ii) How did you
    pay for your ticket?  The answers were: (i) Monday and (ii) with cash. 
    Based on Inspector Bellissimos training and experience, these answers were
    sufficient to confirm her suspicions, and she referred the appellant for a
    secondary inspection.  It was during the secondary inspection that the cocaine
    was discovered.

[8]

Inspector Bellissimos testimony surrounding the indicator questions
    is what gives rise to the principal ground of appeal.  She was not qualified as
    an expert witness.  However, she was asked about what she had been taught in
    her training about cash paid tickets and short notice bookings and why the
    appellants responses to the two indicator questions raised a suspicion
    relating to drugs.  Inspector Bellissimos answers are at the crux of this
    appeal.  In summary, she said:

·

Typically, people dont tend to have $2,000 in cash to pay for a
    ticket

·

Cash payments do not leave a paper trail to the distributors of
    the drugs

·

Cash payments are usually drug money

·

They (i.e. the couriers) are not usually the ones paying for
    the ticket

·

Contrary to business and emergency trips, vacation tickets are
    generally purchased in advance because its cheaper and easier

·

In the appellants case, short notice was even more suspicious
    because the appellant is a teacher, and teachers know their summer vacation
    time well in advance.

[9]

The following passage from Inspector Bellissimos testimony is
    illustrative:

Q. And what were you taught in your
    training?  Youve already indicated  what were you taught in your training
    about cash payments?

A. Okay.  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
, because the reason that our
    trainer gave us was actually a few reasons.  If I can reiterate, one, people
    ... tend not to pay for tickets with cash.  Two,
its usually drug money
. 
    Three, theyre usually not the ones paying for the ticket.  So it usually comes
    as cash.  Four, they dont leave a paper trail ... back to the distributor of
    the drugs. [Emphasis added.]

[10]

Defence
    counsel objected to this evidence as inadmissible hearsay and opinion
    evidence.  She sought a limiting instruction, and it appears that both the trial
    judge and Crown counsel agreed that a limiting instruction would be
    appropriate.  However, the extent of the trial judges instruction in this
    regard was the following:

Another type of evidence is hearsay evidence.  Hearsay evidence
    references what a witness relates what someone else told him or her. 
    Second-hand information if you like.  Hearsay evidence is generally not
    admissible to establish the truth of what the witness was in fact told. 
    Hearsay evidence is admissible however to establish the witness state of mind
    at the relevant time.

For example, Border Officer Bellissimo testified as to what she
    was told in training by other officers.  This evidence cannot be used to
    establish what she was told was true, but to help understand what Officer Bellissimo
    did and said and why she did what she did and what she may have said or asked. 
    It helps us to understand her state of mind on June 16
th
, 2007, when
    she had the encounter with Ms. Lewis.

Analysis


Ground One

[11]

I
    would not give effect to the first ground of appeal outlined above.  As noted,
    we did not call on counsel for the Crown to respond on that issue.

[12]

R.
    v. Blondin
(1970), 2 C.C.C. (2d) 118 (B.C.C.A), affd (1971), 4 C.C.C.
    (2d) 566 (S.C.C.), established that the
mens rea
for the offence of
    importing requires knowledge that the substance is a narcotic (now known as a
    controlled substance), although not necessarily knowledge of the exact type
    of narcotic.  Thus, in
R. v. Burgess
, [1970] 3 C.C.C. 268 (Ont. C.A.),
    it mattered not that the accused believed the substance in his possession was
    hashish rather than opium, since possession of both was prohibited by statute.

[13]

Here,
    the trial judge instructed the jury that simply put, the law is that no person
    shall import into Canada any controlled substance.  As a matter of law, cocaine
    is a controlled substance.  Importation of cocaine into Canada is therefore, a
    criminal offence.  The fact that the trial judge used the terms controlled
    substance, illegal substance and illegal drug from time to time, when
    explaining the elements of the offence could only be understood to refer to
    cocaine in the context of the charge, read as a whole: see also
R. v.
    Rashidi-Alavije,
2007 ONCA 712, 229 O.A.C. 365.

[14]

The
    argument that the jury may somehow have been confused into thinking that the
    reference to an illegal substance might refer to an allegation that the
    appellant was illegally bringing an excess of alcohol into the country, and,
    therefore, that they could convict on that basis, is simply fanciful on this record,
    in my view.  It would have been impossible for the jury to be confused as to
    the substance at issue, particularly in light of the trial judges clear
    instructions on the elements of knowledge under s. 6(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19.

[15]

There
    is no merit to this ground of appeal.

Ground
    Two

[16]

There
    is merit in the appellants second ground of appeal, however.

[17]

Inspector
    Bellissimos testimony about the significance of cash payments for tickets and
    short notice ticketing was not admissible.

[18]

The
    Crown seeks to support the admissibility of the evidence as an exception to the
    hearsay rule in order to show the inspectors state of mind and to explain the
    sequence of events, the questions asked and the responses given by the appellant
    at the time.  The Crown also argues that the evidence was admissible as part of
    the narrative in order to explain the unfolding of events.

[19]

I
    accept neither of these submissions.

[20]

The
    appellant did not contest the legality of the search of her bags at the
    airport, nor did she attack the legality of her arrest.  The only thing that
    was relevant about the Bellissimo interview with the appellant was that, as a
    result of what transpired, Inspector Bellissimo felt that a secondary
    inspection was called for and she referred the appellant to another inspector
    for that purpose.  The cocaine was then discovered.  Inspector Bellissimos
    state of mind was unimportant and never in issue.  The evidence is simply
    irrelevant, and therefore inadmissible, in that context.

[21]

For
    similar reasons, the evidence did not help to explain the evolution of relevant
    events and for that reason was neither necessary nor helpful as part of the
    narrative.  It was irrelevant testimony highly prejudicial to the appellant. 
    The only reason the Crown wished to have the evidence introduced as part of the
    narrative was to lend credence to its position that the appellant was running
    drugs across the border.

[22]

Although
    the Crown disavows any intention of relying on the Bellissimo testimony as opinion
    evidence, and did not seek to qualify the Inspector as an expert, the practical
    reality is that the impugned testimony was opinion evidence.  Moreover, it was
    opinion evidence clothed with the additional aura  and therefore credibility 
    of a border services official, who would be seen by the jury to be
    knowledgeable, experienced and
trained
in dealing with situations
    involving people seeking to bring drugs into the country: see
R. v. Graat,
[1982] 2 S.C.R. 819, at p. 840.  I do not accept the contention that Inspector
    Bellissimos evidence on the issue of cash payments and the purchase of tickets
    on short notice was the type of evidence that members of the jury would know
    from their own life experience and common sense.  It was a particularized type
    of information relating to international drug importing, falling within the
    knowledge of people working in that area and beyond the ken of ordinary jurors.

[23]

While
    there may be situations were a properly qualified expert could give such
    evidence, no attempt was made to qualify Inspector Bellissimo to do so, and, as
    noted above, the evidence was highly prejudicial to the appellant.  The only
    significant issue at play during the trial was whether the appellant knew that
    the wine bottles contained a controlled substance.  The gist of 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.

[24]

The
    trial judge and Crown counsel appear to have recognized that a limiting
    instruction regarding the use to which the jury could put the evidence, once it
    was in, was called for.  Respectfully, in my view, the instruction given by the
    trial judge was inadequate for the task (assuming for these purposes that the
    evidence was admissible, which, for the reasons outlined above, I conclude it
    was not).

[25]

The
    trial judge gave a general instruction on hearsay evidence, pointing out that
    it is generally not admissible to establish the truth of what the witness was
    in fact told, but indicating that hearsay evidence is admissible to establish
    the witness state of mind at the relevant time.  To repeat the passage cited
    earlier in these reasons, he then went on to say:

For example, Border Officer Bellissimo testified as to what she
    was told in training by other officers.  This evidence cannot be used to
    establish what she was told was true, but to help understand what Officer
    Bellissimo did and said and why she did what she did and what she may have said
    or asked.  It helps us to understand her state of mind on June 16
th
,
    2007, when she had the encounter with Ms. Lewis.

[26]

This
    limiting instruction on the use of hearsay was necessary and helpful, but the
    admonition that the jurors could not take what Inspector Bellissimos trainers
    had told her for the truth of those statements did not go far enough, in my
    opinion.  Here, there was a real risk that the jury would infer from the
    evidence that because the appellant had bought her ticket on short notice and
    with cash, as drug couriers frequently do, she was more likely to have been
    knowingly involved in the importing scheme and, therefore, more likely to have
    known that the wine bottles in her suitcase contained a controlled substance. 
    A stronger direction was called for in order to avert that risk.

[27]

The
    appellant also argues that the trial judge erred in admitting Inspector
    Bellissimos testimony that the answers of the appellant appeared to be
    rehearsed and that this helped trigger the Inspectors suspicions.  I would
    not give effect to this argument.  Inspector Bellissimos testimony in this
    regard was non-expert opinion evidence.  Non-experts have been permitted to
    testify on a number of matters in respect of which a person of ordinary
    intelligence may be permitted to give evidence based on his or her personal
    knowledge.  A non-expert witness may testify in the form of an opinion if by
    doing so he or she is able more accurately to express the facts he or she
    perceived: see
R. v. Graat,

supra
.  Accordingly, just as police officers are entitled to
    relate their observations that a driver appeared to them to be inebriated, a
    customs officer in Inspector Bellissimos position should be entitled to relay
    her observations about the manner in which a person responds to questions,
    based on the officers experience, it seems to me.

[28]

Finally,
    the Crown argues that even if we conclude that the trial judge erred in
    admitting Inspector Bellissimos evidence on these issues, or in his
    instructions to the jury with respect to that evidence, the Court should apply
    the proviso contained in s. 686(1)(b)(iii) of the
Criminal Code
and
    dismiss the appeal on the basis that there has been no substantial wrong or
    miscarriage of justice.  I agree that the prosecution presented a very strong
    case against the appellant, leaving Inspector Bellissimos impugned evidence
    aside.  Given what I view to be the considerably prejudicial nature of that
    evidence  as outlined above  however, I am not persuaded that the jurors
    would inevitably have come to a conclusion of guilt absent that evidence.

[29]

I
    would not apply the proviso in the circumstances of this case.

Disposition

[30]

For
    the foregoing reasons, then, I would allow the appeal and order a new trial.

R.A. Blair J.A.

I agree John Laskin
    J.A.

I agree Brown R.S.J
.
    (ad hoc)

Released: June 8, 2012


