



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mascarenas, 2022 ONCA 114

DATE: 20220207

DOCKET: C67745

van Rensburg, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandi Mascarenas

Appellant

Maija Martin and David M. Reeve, for the appellant

Christopher Walsh, for the respondent

Heard: February 4, 2022 by video conference

On appeal from the conviction entered by Justice Michael
    Block of the Ontario Court of Justice on August 30, 2019.

REASONS FOR DECISION

[1]

Ms. Mascarenas appeals her conviction for importing cocaine. At the
    conclusion of the hearing, we dismissed the appeal for reasons to follow. We
    now provide our reasons.

[2]

The appellant received, at her home, a delivery of appliances from
    Panama that included eight water heaters. The arrival of these items was done
    through what is referred to as a controlled delivery. Prior to the delivery,
    the police had discovered that there was one kilogram of cocaine hidden inside
    each of the eight water heaters.

[3]

The appellant gave evidence at her trial. The only other witness was the
    Canada Border Services Agency (CBSA) officer who had questioned the appellant
    when she arrived at the airport in Toronto on her return from Panama. In
    addition, there were certain admitted facts.

[4]

On September 28, 2018, the appellant was questioned at Toronto Pearson
    Airport by a CBSA officer upon her return from Panama. She initially told the officer
    that she was on government assistance and had travelled to Panama to visit her
    mother and daughter. When the officer pressed the appellant further, she became
    very upset. She admitted that she had not seen her mother and daughter in
    Panama. Rather, she told the officer that her boyfriend owed a man named Devo
    $4,000. To pay this debt, Devo had arranged a trip for her to meet with two men
    in Panama and had given the appellant $7,000 U.S. She said that she was told to
    purchase household items and to ship those items back to her home in North
    York. She told the officer that one of the men had taken the receipts for the
    items, but she showed the officer an email on her phone which contained the
    details of a shipment from Panama that was to be delivered to her home in North
    York.

[5]

At trial, the appellant recounted a different version of the events. She
    repeated that her boyfriend owed money to Devo. However, she said that Devo had
    arranged for her to provide escort services for a Nigerian man in Panama City. The
    appellant arrived at Toronto Pearson Airport on September 23, 2018 and was
    given $7,000 U.S. by Devo. She boarded a plane to Panama City, Panama. The appellant
    spent most of the trip with the Nigerian man and had two sexual encounters with
    him.

[6]

When she was to return to Toronto, the Nigerian man, along with another
    man, convinced her that taking the $7,000 she had been given back to Canada
    would cause suspicion at the border, and that the safer option was to purchase
    household goods that she could ship to Canada and then use in the house she and
    her boyfriend were planning on moving into, or, alternatively, sell if she
    didnt need them. She agreed and proceeded to purchase a number of appliances
    and household goods, which were loaded into two separate vehicles to be taken
    to a shipping company. The appellant testified that she purchased between 15
    and 20 items but that she did not purchase any water heaters. With the help of
    this other man, the appellant arranged to ship these items to Toronto. She used
    all but $40, which she had in her possession on her arrival in Toronto, on the
    purchase of the goods and their shipping.

[7]

The appellant testified that she felt that she had no other option for
    dealing with the money. Depositing the money in her bank account would
    jeopardize her status with Ontario Works, while being caught with it at the
    border, and admitting the money was from escorting, would jeopardize her
    ability to regain custody of her daughter. The appellant testified that she
    initially lied to the CBSA officer on the instructions of the Nigerian man and
    this other man. She did not want the officer to know that she was working as an
    escort. However, when the officer pressed her on her explanation, she provided
    additional details about her trip and the shipment of the goods. She said that
    she provided the officer with the tracking number for the shipment because she
    did not think there was anything wrong with the packages.

[8]

The trial judge rejected the appellants evidence. He gave a number of
    reasons for doing so, including that there was no explanation why Devo would
    have given her $7,000 U.S. if the appellants boyfriend owed Devo $4,000. In
    terms of the suggestion that this scheme had not been arranged in advance, the
    trial judge questioned why the drug traffickers, who appeared to be
    sophisticated, would run the risk that the appellant might not agree to the
    appliances purchase scheme to get the drugs into Canada when she arrived in
    Panama. The trial judge also noted that the appellant had changed her story
    between the time she was questioned by the CBSA officer and the time of trial.
    In the end, the trial judge concluded that the appellant was a willing
    participant in the scheme to import the cocaine into Canada.

[9]

The appellant raises three grounds of appeal. She contends that:


(i)

the trial judge failed to adequately explain how he concluded that the
    appellant had knowledge of the drugs;


(ii)

the trial judge failed to properly apply the approach dictated by
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, to circumstantial
    evidence, in that the trial judge failed to consider whether the appellants
    explanation was a reasonable inference that was open on the evidence; and


(iii)

the trial judge improperly reversed the burden of proof by using his
    disbelief of the appellant to prove the offence beyond a reasonable doubt.

[10]

We do not accept any of these challenges to the trial judges
    conclusion. First, the trial judge explained why he concluded, on all of the
    evidence, that the appellant had knowledge of the drugs. This included the
    sophistication of the import scheme, the lack of any other explanation for
    purchasing appliances which were easily accessible in Canada in Panama, the
    appellants changing story, and the general implausibility of her ultimate
    explanation. Based on all of the evidence, and his rejection of the appellants
    explanation, the trial judge concluded that the appellant was a willing
    participant in the import scheme. In our view, that conclusion was available
    on the evidence and was adequately explained.

[11]

Second, while the trial judge may not have enunciated the precise
    approach from
Villaroman
, it is clear to us that he properly applied
    it. When he rejected the appellants evidence, for the reasons that he gave, he
    implicitly found that her explanation for the events was not reasonable. He did
    this based on all of the evidence, as he was required to do. The appellants focus
    on her showing the CBSA officer the particulars of the shipment, as evidence
    that she must not have known that there were drugs contained in it, fails to
    take into account all of the evidence. The trial judge explained that there
    were other reasons why the appellant might have acted as she did that were not
    consistent with a lack of knowledge.

[12]

Third, the trial judge did not use his disbelief of the appellants
    evidence as proof of guilt. The appellant gave evidence which the trial judge
    rejected. The fact is that, once her evidence was rejected, it left only
    evidence that established guilt. The appellants fixation on the trial judges
    use of the word concoctions in describing the appellants evidence, as
    showing that the trial judge found her evidence fabricated and thus amounted to
    consciousness of guilt, greatly overstates what can be fairly taken from the trial
    judges use of that word. It also amounts to inviting this court to overturn
    the decision not on the basis of legal error but on the basis of parsing
    imperfect or summary expression on the part of the trial judge:
R. v. G.F
.,
    2021 SCC 20, 459 D.L.R. (4th) 375, at para. 76.

[13]

Finally, we would add that the trial judges reasons, while not lengthy,
    were entirely adequate in the circumstances.

[14]

It is for these reasons that the appeal was dismissed.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

J. George J.A.


