



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bello, 2021 ONCA 394

DATE: 20210607

DOCKET: C66229

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Florence Bello

Appellant

Mark C. Halfyard, for the appellant

Rick Visca, for the respondent

Heard: June 1, 2021 by video conference

On appeal from convictions entered on June 12, 2018,
    after a trial by a jury presided over by Justice Gisele M. Miller of the
    Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of importing heroin and two
    counts of possession of heroin for the purposes of trafficking. The appellant
    had testified she agreed to pick up two packages which she believed contained gold
    and cash. She was to receive $1,000. The packages contained about 2 kilograms
    of heroin. The outcome at trial turned entirely on whether the Crown had proved
    beyond a reasonable doubt that the appellant knew, or was wilfully blind, that
    the packages contained an illegal drug.

[2]

The appellant alleges two errors in the trial judges instructions to
    the jury and seeks a new trial.

(1)

The Trial Judges
    Instruction Against Propensity Reasoning

[3]

The trial judge specifically cautioned the jury against propensity
    reasoning:

The Crown said to you in his closing address, that Ms. Bello is
    the kind of person who would take money to do something illegal. It is
    important that you make no decision on this case, based on the kind of person
    Florence Bello is. You must not conclude, even based on her admitted behaviour,
    that she is more likely to have committed any one of those offences, just
    because she is the kind of person who would do something illegal. Before
    finding Florence Bello guilty of any offence you must be satisfied beyond a
    reasonable doubt based on all the evidence that she committed that offence.

[4]

The appellant submits the trial judge improperly invited the very
    propensity reasoning she had cautioned against when in the course of reviewing
    the Crowns position. The trial judge said:

So, the Crowns position is that Florence Bello is guilty of
    each of the offences charged. It is the Crowns position that Ms. Bellos
    explanations for her actions in this case lack credibility and common sense for
    several reasons, which include but are not limited to, that Ms. Bello admitted
    in examination by her own counsel that she knew bringing gold and currency into
    Canada was unlawful. As the Crown has indicated by her own admission, she is a
    person who would break the law for money.

[5]

We agree with the respondents submission that this instruction,
    summarizing the Crowns argument, addressed factors relevant to the jurys
    assessment of the appellants credibility. Her expressed willingness to break
    the law for money was obviously relevant to her credibility. It may have been
    helpful had the trial judge reminded the jury of the improper propensity-based
    reasoning she had earlier described. We cannot say, however, her failure to do
    so resulted in reversible error.

(2)

The Trial Judges
    Answer to the Jurys Question

[6]

During their deliberations, the jury asked for clarification of the
    difference between negligence/recklessness or being wilfully blind? After
    discussion with counsel, the trial judge answered the question with a brief
    reference to the concepts of recklessness and negligence and a detailed and
    accurate definition of wilful blindness. She related that definition to some of
    the evidence in the case.

[7]

The trial judges response to the jurys question correctly defined
    wilful blindness and equipped the jury to apply that definition to the
    evidence. The trial judges answer also adequately explained the concepts of
    negligence and recklessness so as to allow the jury to distinguish those
    concepts from wilful blindness.

[8]

The appeal is dismissed.

Doherty J.A.

G.T. Trotter J.A.

J.A. Thorburn J.A.


