



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vassell, 2019 ONCA 489

DATE: 20190613

DOCKET: C64787 and C64788

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rochelle Vassell and Anna-Kay Bailey-Johnson

Appellants

Breana Vandebeek, for the appellant, Rochelle Vassell

Daniel C. Santoro and Cara Barbisan, for the appellant,
    Anna-Kay Bailey-Johnson

Xenia Proestos, for the respondent

Heard and released orally:  June 10, 2019

On appeal from the convictions entered by Justice I. André
    of the Superior Court of Justice, dated December 1, 2017.

REASONS FOR DECISION

[1]

The appellants returned from vacation in St. Lucia in possession of 1.4
    kilograms of cocaine each. Duress was the only defence advanced at trial. The
    appellant, Bailey-Johnson, testified. The appellant, Vassell, did not.

[2]

The trial judge convicted both appellants and they appeal their
    convictions only.

Issue #1  Did the trial judge misapply the burden of proof as
    it related to the defence of duress?

[3]

In his reasons, the trial judge accurately summarized the elements of
    the defence of duress: see para. 26. The trial judge also correctly described
    the burden of proof as it applied to that defence and the evidence of Ms.
    Bailey-Johnson: see reasons, para. 24.  However, at para. 27, the trial judge
    said the following:

To succeed in its case against the accused, the Crown must
    prove beyond a reasonable doubt that at least one of the essential elements of
    duress is absent.
If I have a reasonable doubt about all of these elements,
    I am obliged to find the accused guilty of importing cocaine.
[Emphasis added.]

[4]

The first sentence in this quote is a correct statement of law. The
    second italicized sentence is an erroneous statement of the law. If a trier of
    fact has a reasonable doubt about the existence of each of the elements of
    duress, the trier of fact must acquit.

[5]

The trial judge reviewed the evidence of Ms. Bailey-Johnson at some
    length, eventually concluding that he did not believe her evidence that she and
    Ms. Vassell had been assaulted and threatened. He also held that the evidence
    did not leave him with a reasonable doubt about the threats and assaults: see
    reasons, paras. 45-46.

[6]

The trial judge went on to hold that had he found the appellants were
    threatened, he would have found that a reasonable person in the position of the
    appellants would have had the capacity to report the matter to the Canadian
    police. In other words, there was a safe avenue of escape. The trial judge
    ultimately concluded, at para. 52, that the Crown had proved the case beyond a
    reasonable doubt and, in particular, that the appellants had not acted under
    duress.

[7]

Reading the reasons as a whole, we are satisfied that the trial judge
    understood and properly applied the burden of proof as it related to the duress
    claim. The defence failed for two reasons. First, the trial judge did not
    believe the evidence of Ms. Bailey-Johnson and that evidence did not raise a
    reasonable doubt. Without that evidence, there was no evidentiary basis for the
    defence. Second, the evidence showed that the appellants did have a safe avenue
    of escape once they were within the jurisdiction of the Canadian authorities.

[8]

The impugned passage in para. 27 is, in our view, when considered in the
    context of the entirety of the reasons, a simple misstatement by the trial
    judge. It does not, in our view, given the other correct references to the
    burden of proof which appear throughout the judgment, lead us to conclude that
    the trial judge made the fundamental error put forward by the appellants.

Issue #2  Did the trial judge misapply the rule in
Hodges
    Case
and erroneously require that Ms. Bailey-Johnsons evidence be
    corroborated?

[9]

The outcome of the duress defence depended entirely on Ms.
    Bailey-Johnsons credibility. The defence argued that there was other evidence
    that rendered parts of her testimony more credible. The trial judge examined
    Ms. Bailey-Johnsons evidence in the context of the rest of the evidence. He
    found that parts of her evidence were in fact undermined by other parts of the
    evidence, and that while some parts of the rest of the evidence were consistent
    with some details that she gave, they did not render more credible the fundamental
    part of her evidence; that is, that she and Ms. Vassell were coerced into
    bringing the drugs into Canada by threats and assaults.

[10]

The
    trial judge was not engaged in an inference-drawing or fact-finding process in
    this part of his reasons. He was testing the credibility of the direct evidence
    put forward by Ms. Bailey-Johnson in support of the defence of duress. He was
    testing that against other evidence in order to evaluate her credibility. We
    see no error in the approach he took to the evidence. Indeed, it is reflected
    in the approach that counsel took to the evidence in closing argument.

[11]

The
    trial judge did misapprehend one part of the evidence. He referred to Ms.
    Bailey-Johnson as having some training as a Canadian Border Services Officer
    (para. 49) when describing her not insignificant academic and employment
    background in Canada. In fact, Ms. Bailey-Johnson had some training with the
    Canada Revenue Agency.

[12]

We
    are not satisfied that this error was material to the outcome. First, it had
    absolutely no connection to the finding that the appellants were not coerced
    into bringing the drugs into Canada. Second, to the extent that it was relevant
    to the safe avenue of escape element of the defence, we see no significant
    difference between some training with the Border Services and some training
    with Revenue Canada insofar as the evaluation of a safe avenue of escape
    element of the defence is concerned. In any event, as noted above, the duress
    defence failed regardless of the outcome of the safe avenue of escape
    inquiry.

[13]

The
    appeal is dismissed.

Doherty J.A.

David Watt J.A.

G. Pardu J.A.


