



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bernard, 2020 ONCA 170

DATE: 20200305

DOCKET: C65447

Rouleau, Benotto and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Beverley Bernard

Appellant

Maija
    Martin and David Reeve, for the appellant

Victoria
    Rivers, for the respondent

Heard:
    February 6, 2020

On appeal
    from the conviction entered by Justice Paul OMarra of the Ontario Court of
    Justice on November 16, 2017, with reasons reported at 2017 ONCJ 847.

REASONS FOR DECISION

[1]

The appellant arrived at Pearson airport on a flight from Jamaica. She
    was arrested after a border agent found cocaine concealed in four jars that she
    had been carrying in her suitcase. The jars concealing the cocaine were one of
    curry powder, two of Metamucil and one of psyllium.

[2]

The appellant claimed that she did not know there were drugs in these
    containers that a stranger had asked her to bring to Canada. She was convicted
    by the trial judge of importing cocaine. She appeals on the basis that the
    trial judge erred by: (i) not conducting a
voir dire
to determine whether a Jamaican Patois interpreter was necessary; (ii)
    misapprehending the evidence; (iii) failing to consider the third branch of
W(D)
; and (iv) misapplying the principles in
R. v. Villaroman
,

2016
    SCC 33, [2016] 1 S.C.R. 1000
.


[3]

We do not accept these submissions.

[4]

The language issue arose from use of a pronoun. It was suggested that in
    Jamaican Patois, where the appellant said he, she could be referring to a
    woman. Defence counsel raised this with the trial judge and requested a
voir dire
. However, counsel agreed with the trial judge
    that, as a precondition to the request, the court should review the video of
    the appellants testimony. This was done, and the request was never raised
    again. Since it was not pursued at trial, there was no need for a
voir dire
.


[5]

On the second issue: the trial judge does appear to have been mistaken
    about some of the details of the evidence. In particular, whether the male
    stranger or the appellants cousin physically handed her the jars containing
    the cocaine; the precise movements of the people around the appellant over the
    day and hours preceding the flight to Toronto; and her family relationships. However,
    none of these matters were material to his ultimate findings on credibility and
    guilt.

[6]

On the third issue: the trial judge correctly applied
W(D)
.
He examined the Crowns case and was satisfied of guilt beyond a reasonable
    doubt.

[7]

The final issue, with respect to
Villaroman
,
arises because the trial
    judge said that the evidence reasonably supported the inference of guilt. The
    appellant submits that he did not consider other reasonable inferences that pointed
    towards the appellants innocence. However, when read as a whole, it is clear
    that the trial judge correctly understood the law. He explained that aspects of
    the appellants evidence defied common sense and he disbelieved her evidence
    as to how she came into possession of the drugs. The trial judge then went on
    to find that her evidence revealed inherently suspicious events and in effect,
    her evidence alone was capable of supporting a finding of deliberate
    ignorance. These findings when combined with the evidence led by the Crown, left
    no scope for inferences other than guilt.

[8]

The appeal is dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

Harvison Young J.A.


